                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 17, 2013
                       UNITED STATES COURT OF APPEALS
                                                    Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,

 v.                                                      No. 12-3329
                                              (D.C. No. 6:12-CR-10076-MLB-1)
 DEXTER DEWAYNE BAKER,                                    (D. Kan.)

                  Defendant-Appellant.



                              ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Dexter Dewayne Baker appeals from his sentence, raising the sole claim of

substantive unreasonableness. We affirm the judgment and sentence of the

district court.




       *
            After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.

      This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
                                           I

      Mr. Baker pleaded guilty to possession of cocaine with intent to distribute

in violation of 21 U.S.C. § 841(a)(1). The Presentence Investigation Report

(“PSR”) categorized Mr. Baker as a career offender within the meaning of

§ 4B1.1 of the United States Sentencing Guidelines (“the Guidelines” or

“U.S.S.G.”), and calculated a Guidelines range of 151 to 188 months. After

reviewing the PSR, the district court noted in a letter to the parties that it was

“contemplating an upward variance from” that range. R., Vol. I, at 27 (Letter,

dated Oct. 26, 2012). The district court explained that, although it “always g[a]ve

respectful consideration to the sentencing guidelines,” it was “unable to

understand how a person with a criminal record like defendant’s can score only

27 criminal history points.” Id. Elaborating, the district court emphasized Mr.

Baker’s numerous past difficulties with the law, and described him as “a drug

dealer who possesses weapons, who clearly has never respected the law and who

presents a clear danger to the public.” Id.

      Mr. Baker did not object to the PSR, though he did “provide the Court with

additional information in regards to” several of the criminal incidents mentioned

in the report. Id., Vol. II, at 44 (Addendum to the PSR, filed Oct. 25, 2012). At

the sentencing hearing, the government recommended a sentence of 151 months.

For his part, defense counsel urged the court to impose 188 months at most. The

district court found the PSR accurate and accepted its findings for purposes of

                                          2
computing Mr. Baker’s sentence. It then sentenced Mr. Baker to 200 months in

prison. Explaining the upward variance, the court remarked that it would

incorporate into its sentence the reasoning in its October 26 letter to the parties.

In its statement of reasons, the court indicated that it was imposing a sentence

above the Guidelines range because of the factors enumerated in 18 U.S.C.

§ 3553(a). This appeal followed.

                                          II

      When a sentence faces a substantive reasonableness attack, we review it for

an abuse of discretion. United States v. Snow, 663 F.3d 1156, 1160 (10th Cir.

2011), cert. denied, --- U.S. ----, 132 S. Ct. 1615 (2012). An abuse of discretion

occurs when the district court “renders a judgment that is arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Lewis, 594 F.3d 1270,

1277 (10th Cir. 2010) (quoting United States v. Munoz-Nava, 524 F.3d 1137,

1146 (10th Cir. 2008)) (internal quotation marks omitted). “[S]ubstantive

reasonableness review broadly looks to whether the district court abused its

discretion in weighing permissible § 3553(a) factors in light of the ‘totality of the

circumstances.’” United States v. Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009)

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). At bottom, the aim of

such review is to determine whether the sentence is unreasonably long, in light of

the § 3553(a) factors. See United States v. Reyes-Alfonso, 653 F.3d 1137, 1145

(10th Cir. 2011) (“[S]ubstantive reasonableness addresses whether the length of

                                           3
the sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” (alteration in original) (quoting United

States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)) (internal quotation

marks omitted)); United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th

Cir. 2008) (“A sentence is substantively reasonable when the length of the

sentence ‘reflects the gravity of the crime and the § 3553(a) factors as applied to

the case.’” (quoting United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir.

2007), abrogated in part on other grounds by Irizarry v. United States, 553 U.S.

708, 713 n.1 (2008)).

                                         III

      Mr. Baker’s only specific argument is that his “status as a career offender

(i.e. his record[] of past convictions) was already factored into the career offender

guideline sentencing range,” and that the district court therefore should not have

varied upward on the basis of that same record. Aplt. Opening Br. at 8. He cites

two cases to support his position: United States v. Sindima, 478 F.3d 467 (2d

Cir.), amended and superseded by 488 F.3d 81 (2007), 1 and United States v.

Tucker, 473 F.3d 556 (4th Cir. 2007). Both are readily distinguishable.

      Mr. Baker reads Sindima and Tucker as precluding district courts from

varying upward on the basis of factors already accounted for in the sentencing


      1
            Mr. Baker cites to the vacated version of Sindima. We cite to the
superseding opinion.

                                          4
range. However, neither decision found fault with the district court’s

consideration of such a factor, but rather with its failure to explain the role the

factor played in its ultimate sentence. See Sindima, 488 F.3d at 82 (“We conclude

that, based on the present record, the district court has not given an explanation of

its reasons for the length of the above-Guidelines sentence that is sufficient under

the circumstances to allow us to conclude with confidence that the sentence is

reasonable. . . . Accordingly, we remand for further proceedings.” (emphasis

added)); Tucker, 473 F.3d at 563 (“[T]he district court did not adequately justify

the extent of the variance imposed.” (emphasis added)). Indeed, Sindima went

out of its way to state that “it may well have been reasonable for the district court

to have imposed a non-Guidelines sentence based upon section 3553(a) factors

already accounted for in the Guidelines range.” 488 F.3d at 87.

      We have repeatedly observed that a district court’s failure to sufficiently

explain a sentence is properly the basis of a procedural (not substantive)

reasonableness challenge. See, e.g., United States v. Haley, 529 F.3d 1308, 1311

(10th Cir. 2008) (“A sentence is procedurally unreasonable if the district court

. . . inadequately explains the sentence.” (emphasis added)). Yet, Mr. Baker

explicitly declines to make a procedural reasonableness argument. See Aplt.

Opening Br. at 6 (“[T]he defendant raises only the substantive reasonableness of




                                           5
the sentence.”). As a consequence, Mr. Baker’s citations to Sindima and Tucker 2

are unavailing.

      Mr. Baker presents no authority, from either the Tenth Circuit or elsewhere,

suggesting that a district court abuses its discretion when it varies upward in light

of previous offenses while sentencing a career criminal. It would be surprising if

any such authority existed, as the factors a trial court is required to consider

under § 3553(a) are often inextricably intertwined with criminal history. For

instance, a district court cannot adequately determine “the history and

characteristics of the defendant,” § 3553(a)(1), without accounting for his

previous misdeeds. Nor can it know what will “afford adequate deterrence to

criminal conduct,” § 3553(a)(2)(B), or how “to protect the public from further

crimes of the defendant,” § 3553(a)(2)(C), if it does not factor in his historic

crimes. Cf. United States v. Lewis, 625 F.3d 1224, 1233 (10th Cir. 2010)

(affirming the substantive reasonableness of a sentence where the district court’s

§ 3553(a) analysis considered the defendant’s previous criminal conduct),


      2
             Mr. Baker’s citation to, and summary of, Sindima and Tucker is
taken verbatim (and without attribution) from United States v. Allen, 488 F.3d
1244, 1259 (10th Cir. 2007). It bears mention that we were citing Sindima and
Tucker there to reasonably support a very different proposition than the one Mr.
Baker advances here: specifically, “that courts of appeals have regarded extreme
variances on the basis of [recidivism or reform to be] unreasonable.” Allen, 488
F.3d at 1258 (emphasis added). We certainly did not hold in Allen that a sentence
is automatically and categorically substantively unreasonable when it varies
upward on the basis of facts that are also relevant to career offender status, no
matter how small the variance is or how it is justified.

                                          6
abrogated on other grounds by Dorsey v. United States, --- U.S. ----, 132 S. Ct.

2321, 2326 (2012).

      If Mr. Baker’s position were correct, it would seemingly be always

unreasonable for a sentencing court to consider § 3553(a) factors—suffused, as

they are, with matters implicating a defendant’s criminal history—when imposing

an upward variance on a defendant designated a career offender under U.S.S.G

§ 4B1.1. That is not the law. See United States v. Grimes, 702 F.3d 460, 471

(8th Cir. 2012) (holding that an upward variance or departure in the sentence

imposed on a career offender based on § 3553(a) factors, including criminal

history, was substantively and procedurally reasonable), cert. denied, --- U.S. ----,

133 S. Ct. 2840 (2013); United States v. Walker, 447 F.3d 999, 1008 (7th Cir.

2006) (characterizing as “adequately explained and reasonable” an upward

variance in a sentence handed down to a career offender with reference to the

§ 3553(a) factors). And the foregoing reasoning strongly suggests the inherent

infirmities of Mr. Baker’s position. In sum, in view of this authority and the

reasoning that bolsters it—and because Mr. Baker provides no authority to the

contrary—we conclude that he has failed to demonstrate that the district court

abused its discretion.




                                          7
                                       IV

       For the reasons explicated above, we affirm the judgment and sentence of

the district court.



                                            Entered for the Court


                                            JEROME A. HOLMES
                                            Circuit Judge




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