                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         July 20, 2010
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 10-1042
 JACOB JOHN LAHR,                                 (D.C. No. 1:09-CR-00029-CMA-1)
                                                              (D. Colo.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Jacob John Lahr pled guilty to a single count of bank robbery, in violation of 18

U.S.C. § 2113(a), and was sentenced to a term of imprisonment of seventy months. Lahr

now appeals, arguing the district court abused its discretion in ordering Lahr’s seventy-



       *
        This order and judgment is not binding precedent, except under the doctrines of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
month sentence to run consecutively to any undischarged terms of imprisonment in the

Colorado Department of Corrections. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we affirm.

                                              I

       On the morning of March 27, 2007, Lahr entered the US Bank office located at

2845 Linden Court in Loveland, Colorado, approached a bank teller, and told her, “This is

a robbery! Give me your money!” ROA, Vol. 1 at 12. Lahr placed what appeared to be

a wallet on the teller counter, and the teller placed approximately $4,250 in large bills on

top of the wallet. Lahr took the money and fled the bank.

       On January 26, 2009, a federal grand jury indicted Lahr on one count of bank

robbery, in violation of 18 U.S.C. § 2113(a). Lahr pled guilty to that charge on

September 25, 2009. The presentence investigation report (PSR) was prepared by the

probation office and submitted to the district court and parties on October 14, 2009. The

PSR calculated a total offense level of 19, a criminal history category of VI, and an

advisory guideline range of 63 to 78 months. Neither party filed any objections to the

PSR.

       On December 4, 2009, Lahr appeared before the district court for sentencing.

Lahr’s counsel noted that the PSR recommended that Lahr’s sentence be ordered to run

consecutively “to the state court sentences that . . . Lahr [wa]s [then] serving, and two




                                              2
more [state] sentences which [we]re set to be imposed” in January 2010.1 ROA, Vol. 2 at

8. Lahr’s counsel further noted that “[t]he state prosecutors ha[d] . . . filed habitual

criminal charges against [Lahr],” and that they “expect[ed] his sentences in state court to

be at least 48 years; most likely a triple digit sentence.” Id. at 9. Lahr’s counsel asked the

district court to sentence Lahr “concurrently with the state sentences,” id., in order to

maximize Lahr’s opportunities for education and vocational training in state prison,2 so

that he could “better his life” and obtain the “skills to be able to then earn money to pay

back restitution . . . while he [wa]s serving his sentence,” id. at 10. The government

opposed Lahr’s request, arguing that Lahr’s history of violent crimes warranted a

consecutive sentence. The district court continued the sentencing hearing in order to

allow the pending state court sentencing proceedings to occur and to allow the parties to

file written pleadings addressing the issue of concurrent versus consecutive sentencing.

       The district court reconvened the sentencing hearing on February 11, 2010. Lahr’s

counsel noted that Lahr had “recently received a 48-year sentence out of Jefferson

County[, Colorado], to run consecutively to two sentences he [wa]s already serving out of



       1
        As of December 4, 2009, Lahr was serving concurrent, undischarged terms of
imprisonment imposed by the Weld County (Colorado) District Court for “Attempted
Aggravated Robbery - Menacing Victim with Weapon” and “2nd Degree Aggravated
Motor Vehicle Theft.” Supp. Roa, Vol. 1 at 24.
       2
          Lahr himself expressed concern that he would be denied placement in a medical
facility, in addition to being denied participation in prison programs, due to his high
classification level resulting from a consecutive federal sentence, which, he asserted,
would function like a detainer in the state prison system. ROA, Vol. 2 at 26-27.


                                               3
Weld County[, Colorado],” and that, as a result, Lahr “probably [wa]sn’t going to get out

of state custody until he [wa]s about 75 years old.”3 Id. at 22. In turn, Lahr’s counsel

again urged the district court to “grant [Lahr] a concurrent sentence” so that Lahr could

maximize his “educational and vocational and medical care” opportunities in state prison.

Id. The district court, however, rejected this request and sentenced Lahr to a term of

imprisonment of seventy months, “to be served consecutively to the undischarged terms

of imprisonment in Weld County District Court, . . . and any other state terms of

imprisonment that have been imposed.” Id. at 28. The district court explained its

rationale for imposing a seventy-month consecutive sentence:

          Now, Mr. Lahr, I want you to know that I take these sentencings very
       seriously. They are the hardest task I have in my docket because I know I
       have your life in my hands, and I want to be as fair as possible in issuing the
       justice that I think needs to be issued. On the other hand, I do have an
       obligation to the public and to society to protect them from further crimes
       by you and to promote respect for the law and to deter future criminal
       conduct.

          Now, it was somewhat ironic to me that the FBI learned of your
       involvement in this bank robbery after you and another individual conspired
       to defraud Crime Stoppers by reporting you as the robber with the intention
       that you and your accomplice would split the proceeds of any reward that
       was received.

          I looked at your criminal history, Mr. Lahr, and you have a lengthy
       criminal history record, beginning with your first felony at age 12. You

       3
        According to addendums to the PSR, on October 30, 2009, Lahr was convicted
by a jury in Jefferson County (Colorado) District Court of “Aggravated Motor Vehicle
Theft, Possession of a Weapon by a Previous Offender, and Possession of a Schedule II
Controlled Substance.” Supp. ROA, Vol. 1 at 36. On January 28, 2010, Lahr was
sentenced in connection with those convictions to 48 years’ imprisonment, to run
consecutively to the two sentences imposed in Weld County District Court. Id. at 38.

                                             4
have been continuously involved in criminal activity since that time. You
appear to be undeterred by any sanctions that the courts have imposed,
including imprisonment.

   Your prior criminal record includes crimes of violence including
aggravated robbery, multiple convictions for assault, which indicates that
you are a present physical danger to society. You have several pending
cases involving crimes of violence. Your prison record includes 60
disciplinary incidents, and that indicates that you even present a danger to
the prison population.

   You incurred four convictions while in custody. You were charged with
assault on a federal pretrial detention officer in this case. In short, you are a
career offender. And it doesn’t appear to me from your history that you
have made any effort whatsoever to try to live a law-abiding life.

   You are currently serving concurrent sentences of imprisonment on two
state convictions for attempted aggravated robbery, menacing the victim
with a weapon, and second degree aggravated motor vehicle theft. And
pursuant to the policy statement of the sentencing guidelines, I am
authorized to impose a concurrent or partially concurrent or consecutive
sentence under these circumstances.

   And without giving in to how this would have played out had you
actually had your state bank robbery conviction tried in federal court,
especially because of using a weapon and the mandatory there, you would
have served a much longer sentence. I am not going to get into that.

   It is enough to me that I tend to agree with [the prosecutor] in the sense
that just because you have committed so many crimes does not mean that I
should be lenient with you on this one . . . . I believe that a consecutive
sentence in the middle of the range – and I gave you the middle because
you were cooperative.

    And I know that doesn’t meant a lot to you because it is not, you know,
8 months, what is the difference? But to me it does take into account the
fact that you did cooperate in this case. I believe that that sentence, in the
middle of the range, is necessary and is what I was required to do when I
[sic] mandated to issue a sentence that is sufficient but no greater than
necessary to meet the sentencing purposes.


                                        5
          I believe that sentence does reflect the seriousness of this offense. It
       provides just punishment. Hopefully it will promote some respect for the
       law, and hopefully it will provide some adequate deterrence – general
       deterrence to criminal conduct.

Id. at 30-33.

       Judgment was entered in the case on February 17, 2010. Lahr has now filed an

appeal challenging the consecutive nature of his sentence.

                                             II

       Generally speaking, we review a criminal defendant’s sentence for reasonableness,

deferring to the district court under the “familiar abuse-of-discretion standard of review.”4

Gall v. United States, 552 U.S. 38, 46 (2007). Reasonableness review includes both a

procedural and a substantive component. United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1214 (10th Cir. 2008).

       Lahr contends the district court failed, in determining whether to run his federal

sentence concurrently with or consecutively to his undischarged state sentences, to

properly consider certain of the factors outlined in 18 U.S.C. § 3553(a), thereby rendering

his sentence both procedurally and substantively unreasonable. We disagree.

       “Under 18 U.S.C. § 3584(a), a district court has the discretion to impose

       4
          We have not, since the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), was issued, definitively resolved the standard of review applicable to a
district court’s imposition of consecutive sentences. United States v. Cordova, 461 F.3d
1184, 1188 (10th Cir. 2006). “We need not explore the exact contours of our post-Booker
standard of review [in this case], however, because we conclude that the District Court
did not abuse its discretion and that the sentence was . . . substantively reasonable.” Id.
(quotation and citation omitted).


                                              6
consecutive or concurrent sentences.” United States v. Rodriguez-Quintanilla, 442 F.3d

1254, 1256 (10th Cir. 2006). “The district court’s discretion is guided by the factors

delineated by 18 U.S.C. § 3553(a), which include the characteristics of the offense and

the defendant, [and] the need for deterrence and the protection of the public . . . .” Id.

(internal citations omitted); 18 U.S.C. § 3584(b).

       Although Lahr contends his sentence is procedurally unreasonable because the

district court “failed to properly consider 18 U.S.C. § 3553(a)(2)(B), (C) & (D),” Aplt.

Br. at 9, a review of the record on appeal refutes those allegations. In particular, a review

of the transcripts of the two sentencing proceedings firmly establishes that the district

court recognized its discretion under § 3584(a) to run Lahr’s federal sentence either

concurrently with or consecutively to his undischarged Colorado state sentences, and in

turn considered the factors outlined in § 3553(a) in exercising that discretion. Further, the

district court’s detailed explanation for the sentence confirms that it specifically took into

account the factors outlined in § 3553(a)(2)(B) and (C), i.e., the need for the sentence

imposed to afford deterrence to criminal conduct and to protect the public from further

crimes of the defendant. Although the district court did not specifically cite to §

3553(a)(2)(D), which focuses on the need for the sentence imposed to provide the

defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner, we have repeatedly held that a

district court need not individually consider each § 3553(a) factor before issuing a

sentence. See United States v. Contreras-Martinez, 409 F.3d 1236, 1242 (10th Cir. 2005).

                                              7
Moreover, it is apparent from reviewing the sentencing proceeding transcripts that the

district court was well aware of Lahr’s assertion that a consecutive sentence would

negatively impact his ability to obtain educational or vocational training and placement in

a medical facility while serving his state sentence. Thus, in sum, we conclude the district

court committed no procedural error in ordering Lahr’s sentence to run consecutively to

his undischarged state sentences.

       As for the substantive reasonableness of the sentence, we assess whether it “is

reasonable given all the circumstances of the case in light of the factors set forth in 18

U.S.C. § 3553(a).” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)

(internal quotations and citation omitted). In doing so, we recognize there is typically a

range of “rationally available choices” that “the facts and law at issue can fairly

support[.]” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). We will

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

whimsical or manifestly unreasonable.” Friedman, 554 F.3d at 1307 (internal quotations

and citation omitted).

       While Lahr argues a concurrent sentence would be more humane in his case, given

the negative effect a consecutive sentence could have on his lengthy state sentences, the

district court heard those arguments and yet concluded a consecutive sentence was

appropriate in this case. We cannot conclude under our standard of review and on this

record that the district court’s decision to run Lahr’s federal sentence consecutively to his

undischarged state sentences was arbitrary, capricious, whimsical or manifestly

                                              8
unreasonable. Indeed, the district court’s rationale for doing so, particularly the need to

deter a career criminal from engaging in further violent crimes, was compelling. Thus,

we conclude the consecutive nature of the sentence was substantively reasonable.

       AFFIRMED.



                                                  Entered for the Court,



                                                  Mary Beck Briscoe
                                                  Chief Judge




                                              9
