                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 22, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 09-1399
                                               (D.C. No. 1:09-CR-00187-REB-1)
    JEFFREY DAVID SMITH,                                   (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



         Defendant-Appellant Jeffrey David Smith pleaded guilty in federal district

court to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The

district court sentenced him to a term of imprisonment of 84 months, followed by

a three-year term of supervised release. He was ordered to pay restitution in the



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
amount of $3,200. He now appeals his sentence, contending that the 84-month

term of imprisonment was substantively unreasonable. We affirm.

                                 BACKGROUND

      In his plea agreement, Mr. Smith stipulated to the following facts

concerning his offense:

      [O]n December 15, 2008, the defendant entered the Alpine Bank
      branch located [at] 50891 Highway 6, Glenwood Springs, Colorado,
      wearing a hooded sweatshirt with the hood up and a skull cap to hide
      his identity. He went to the service desk where he wrote out a note
      which he handed to the teller while at the same time raising the
      sweatshirt to reveal what appeared to be a handgun in his waistband.
      The teller gave him $20, $50, and $100 bills total[]ing $3200.00 from
      the top drawer. The defendant then asked for the key to the vault and
      when bank personnel were unable to produce it, he left the bank.
      The defendant was identified by bank employees from a photographic
      lineup. The defendant was tracked to Las Vegas, Nevada by his cell
      phone where he was arrested by local authorities. During a search of
      his hotel room, a BB pistol matching the [teller’s] description of the
      firearm was found. In his interview, the defendant confirmed that he
      had robbed the Alpine Bank with this same BB pistol. Alpine Bank’s
      deposits are insured by the FDIC.

R., Vol. I at 9-10.

      In the agreement, the Government agreed to recommend a sentence in the

bottom half of the applicable sentencing range and stipulated that Mr. Smith

should receive the maximum benefit for acceptance of responsibility. It was

agreed that either party could ask the sentencing court to depart from the

applicable guideline range at sentencing if that party felt there existed aggravating

or mitigating circumstances of a kind or degree not adequately taken into


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consideration in the guidelines. It was also understood that the sentencing court

would not be bound by any position of the parties in imposing sentence.

      The Probation Department conducted a presentence investigation and

prepared a presentence investigation report and addendum (PSR). In the PSR, the

Probation Department calculated Mr. Smith’s Base Offense Level at 20. This

level was increased by two levels because property of a financial institution was

taken, and by three levels because a dangerous weapon was brandished or

possessed. It was reduced by three levels for acceptance of responsibility,

yielding a total offense level of 22.

      In the six years prior to his guilty plea for the current offense, Mr. Smith

accumulated several prior criminal convictions involving property crimes,

including four felonies. This gave him a criminal history score of 12 points,

resulting in a Criminal History Category of V. Based on the total offense level

and the criminal history category, the guideline range for imprisonment calculated

in the PSR was 77 to 96 months.

      At his sentencing hearing, Mr. Smith’s counsel sought a downward

variance to 57 months’ incarceration, a twenty-five percent variance below the

guideline range calculated in the PSR. Counsel argued that while both a

77-month sentence and a 57-month sentence were “sufficient,” 77 months was

greater than necessary. He argued that 77 months was more than the amount

necessary to send a message generally or specifically to Mr. Smith; that the extra

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time was not necessary to protect society from Mr. Smith; and that a sentence of

77 months would be 250 percent longer than his next most serious sentence in the

past. Counsel noted that Mr. Smith’s offenses were the result of his gambling

addiction; that he had a support system in place; and that he was a bright

individual who had begun writing about his gambling problem in the hope of

publication and of helping others. Mr. Smith also made a statement in allocution

in which he expressed remorse for the robbery and his intention never to commit

such a crime again. The PSR noted that he had written a letter apologizing to the

teller whom he had threatened.

      The government objected to the proposed variance. The Assistant United

States Attorney (AUSA) opined that the factors cited by Mr. Smith’s counsel

formed an insufficient basis for downward variance, which could lead to

unwarranted sentencing disparities. The AUSA drew the court’s attention to

Mr. Smith’s total of five felony convictions, including the present offense. He

also noted that Mr. Smith had been offered a Salvation Army program to treat his

gambling problem but had rejected it because it took too long. Finally, he stated

the government approved of the PSR’s recommendation of a 77-month sentence,

at the bottom of the guideline range.

      The sentencing judge then recited a list of statutorally-mandated factors

that he had considered in determining an appropriate sentence and which he

incorporated in his findings. See R. Vol. II, at 17-19. He adopted the PSR,

                                         -4-
including its guideline-sentencing calculations, and made specific findings

concerning the discrete sentencing factors contained in 18 U.S.C. § 3553(a)(1)

through (7). The judge noted that bank robbery “is inherently serious because of

its demonstrated potential for death or serious bodily injury to innocent people.”

R., Vol. II at 20. Moreover, this particular offense was serious and dangerous

because Mr. Smith committed it during business hours when innocent bank

employees were present and in harm’s way, and purported to brandish a handgun.

      Although Mr. Smith was an intelligent and articulate individual with

superior writing skills, he presented “no special or compelling mitigating

circumstances, no outstanding service to country or community, no unusually

disadvantaged childhood, no overstated criminal history, [and] no post-offense

rehabilitation.” Id. at 21. While gambling was the explanation given for the

offense, it was not an excuse. Moreover, with his four prior felonies, Mr. Smith’s

criminal history was “relatively aggravated.” Id. at 22.

      Summing up, the district court concluded that Mr. Smith’s “philosophy

evinces a disrespect for the law and the property and the rights of others,

including the tellers whom he victimized and terrorized on December 15, 2008.

Various judicial interventions have failed to reform or deter the defendant.” Id.

In order “to provide for just punishment, to promote respect for the law, to protect

the public from further crimes of this defendant, to provide adequate deterrence,

to provide the defendant an opportunity for rehabilitation and to avoid

                                         -5-
unwarranted sentencing disparities,” the district court (1) denied a variance,

reasoning that a sentence within the guideline range “adequately addresses and

satisfies the principles, requirements and needs of [18 U.S.C. §] 3553(a),” and

(2) imposed a prison term of 84 months. Id. The district court specifically found

that this sentence was “sufficient but not greater than necessary to achieve the

congressional goals and purposes of sentencing and to satisfy the requirements,

principles and needs of Section 3553(a) and (a)(2).” Id. at 22-23.

                                    ANALYSIS

      Mr. Smith raises a single issue on appeal: whether his within-guidelines

sentence was substantively unreasonable. We review the substantive

reasonableness of a sentence under an “abuse-of-discretion standard.” United

States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008), cert. denied, 129 S. Ct.

1391 (2009). A district court’s sentence is substantively unreasonable “only if

the court exceeded the bounds of permissible choice, given the facts and the

applicable law in the case at hand.” United States v. McComb, 519 F.3d 1049,

1053 (10th Cir. 2007) (quotation omitted). Such an abuse occurs “when it renders

a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.”

United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quotation

omitted). We have also noted that

      in many cases there will be a range of possible outcomes the facts
      and law at issue can fairly support; rather than pick and choose
      among them ourselves, we will defer to the district court’s judgment

                                         -6-
      so long as it falls within the realm of these rationally available
      choices . . . . Nonetheless, we will not hesitate to find abuse where a
      decision is either based on a clearly erroneous finding of fact or an
      erroneous conclusion of law or manifests a clear error of judgment.

McComb, 519 F.3d at 1053-54 (quotations omitted).

      Because Mr. Smith was sentenced within the advisory guideline range of 77

to 96 months, a rebuttable presumption arises on appeal that his sentence was

substantively reasonable. See United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006). This presumption of reasonableness can be rebutted by showing

that the sentence imposed is unreasonable in light of the factors stated in

18 U.S.C. § 3553(a). Id.

      Mr. Smith argues that the district court gave too much weight to his

criminal history, “while giving insufficient weight to his personal circumstances

and the impact of those circumstances on his criminal history.” Aplt. Br. at 13.

He argues that all of his prior convictions and the present offense resulted from

his gambling addiction, that his prior crimes were non-violent, that he caused no

physical injury to anyone, and that he expressed sincere remorse and a desire to

obtain treatment for his gambling addiction and related mental illness. As the

record shows, the district court expressly considered Mr. Smith’s gambling

addiction, finding that it did not excuse his behavior. It noted the dangerous and

potentially violent nature of his latest offense, a factor demonstrating escalation

from his prior non-violent offenses. While Mr. Smith’s remorse was evidenced


                                         -7-
by his letter to his victim and his statement at allocution, his criminal history was

extensive and he had rejected a program of treatment offered to him. We discern

no abuse of discretion in the district court’s weighing of these factors.

      Mr. Smith also argues that the district court improperly relied on the

generic seriousness of bank robbery, without acknowledging the specific

circumstances of his offense. We disagree. The district court cited both the

generically serious nature of bank robbery and the particular circumstances of

Mr. Smith’s crime. See R., Vol. II at 20-21. The district court’s citation of

particular circumstances of the offense obviates concern about over-reliance on

the crime’s generic characteristics. Cf. United States v. Osborne, 593 F.3d 1149,

1153-54 (10th Cir. 2010) (per curiam) (upholding upward departure from

guideline range where, although district court erroneously opined that high-speed

car chases are always so dangerous that they warrant automatic upward departure,

it also relied on exceptional circumstances of defendant’s particular high-speed

chase).

      Finally, Mr. Smith argues that the 84-month sentence was unreasonable

because it exceeded the 77-month sentence recommended both in the PSR and by

the government. 1 Neither the PSR nor the government’s recommendation was, of

1
       Mr. Smith complains that the sentencing judge failed to “explicitly [state]
why it rejected the recommendation of both the government and the probation
officer.” Aplt. Br. at 15. This is an argument about procedural rather than
substantive reasonableness. In any event, the district court adequately explained
                                                                      (continued...)

                                          -8-
course, binding on the sentencing judge. Moreover, the sentence was in the

bottom half of the guideline-sentencing range, which is what the government had

agreed to recommend in the plea agreement, and was presumptively reasonable

because it fell within the advisory guideline range. In sum, we discern no abuse

of discretion in the sentence imposed.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




1
 (...continued)
its reasons for imposing a sentence of 84 months.

                                         -9-
