                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         January 15, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 19-6069
                                                    (D.C. No. 5:18-CR-00026-F-1)
 KENITH MITCHELL,                                           (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.**
                 _________________________________

      Defendant Kenith Mitchell appeals the 24-month sentence entered on remand

from his prior appeal.

      While in custody at a federal transfer center in Oklahoma, Defendant

masturbated in the presence of a guard while in her office. Based on this incident,

Defendant pled guilty pursuant to a plea agreement to indecent exposure under Okla.

Stat. tit. 21 § 1021(A)(1), assimilated into the federal criminal code under the


      *
         This order and judgment is not binding precedent, except under the doctrines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.
      **
        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.
Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. The district court sentenced

Defendant to a 24-month term of imprisonment to run consecutively to a sentence

Defendant began serving in November 2017 pursuant to a Maryland conviction.

      In his first appeal, Defendant argued that the government had breached the

terms of the plea agreement by suggesting his sentence should run consecutively to

his Maryland sentence. The government conceded to this argument and accordingly

filed a motion asking us to vacate the judgment and remand for resentencing, which

we granted. On remand, the district court again imposed a 24-month term of

imprisonment, this time running concurrently with Defendant’s Maryland sentence.

      In this second appeal, Defendant advances two arguments. First, he contends

that, at re-sentencing, the district court should have reduced his sentence from 24

months to 20 months in order to account for the roughly four-month period between

the two sentencing proceedings, for which he believes he will not receive time-served

credit from the Bureau of Prisons. The premise of this argument appears to be that

his new sentence is not deemed to have commenced until the date he was re-

sentenced (rather than the date he was initially sentenced), and a four-month

reduction is needed to offset the difference in starting dates caused by the

government’s breach.

      The premise of Defendant’s argument is flawed. Under controlling Bureau of

Prisons policy, “[w]hen a federal sentence is vacated without disturbing its

underlying conviction, . . . the post-remand sentence [is treated] as commencing on

the same date as the original sentence.” Blood v. Bledsoe, 648 F.3d 203, 208–09 (3d

                                           2
Cir. 2011); see also Manni v. English, No. 17-3192-JWL, 2018 WL 338153, at *4 (D.

Kan. Jan. 9, 2018) (“When a judgment is vacated solely for the purpose of

resentencing, the sentence is deemed to run from the same date as the original

sentence.”), aff’d 727 F. App’x 530 (10th Cir. 2018); cf. Allen v. Crabtree, 153 F.3d

1030, 1033 (9th Cir. 1998) (“[V]acation of a sentence pending resentencing does not

result in the commencement of another sentence ordered to be served consecutively

to the vacated one.”) Thus, Defendant’s new sentence will be deemed to have

commenced on the same date as his initial sentence. There was no need for the

district court to reduce Defendant’s sentence in order to account for a later

commencement date, and there is therefore no “error” for us to correct.

      Second, Defendant challenges the substantive reasonableness of his sentence,

contending that his 24-month term is too long in comparison to defendants found

guilty of similar conduct.1 “We review a district court’s sentencing decision for

substantive reasonableness under an abuse-of-discretion standard,” which “applies

without regard to whether the district court imposes a sentence within or outside the

advisory guidelines range.” United States v. Cookson, 922 F.3d 1079, 1090 (10th

Cir. 2019) (internal quotation marks omitted). “When reviewing a sentence for

substantive reasonableness, we focus on whether the length of 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).” Id. at 1091 (internal quotation marks omitted).



      1
          Defendant does not challenge his sentence’s procedural reasonableness.
                                            3
      For defendants sentenced under the ACA, state law sets the minimum and

maximum term of imprisonment a district court may impose, and, within this range,

the court “should apply the federal sentencing guidelines to the extent possible.”

United States v. Garcia, 893 F.2d 250, 254 (10th Cir. 1989). Thus, after determining

the range set by state law, courts typically still calculate the guidelines range by

applying a federal sentencing guideline analogous to the assimilated state offense.

See, e.g., United States v. Flonnory, 630 F.3d 1280, 1282 (10th Cir. 2011); United

States v. Sevenstar, 384 F. App’x 823, 825–26 (10th Cir. 2010); see also U.S.S.G.

§ 2X5.1. However, if no guideline is sufficiently analogous to the offense, courts

only apply § 3553’s provisions. See U.S.S.G. § 2X5.1; see also United States v.

Romero, 432 F. App’x 790, 794–96 (10th Cir. 2011) (affirming ACA sentence

imposed pursuant to § 3553 where no analogous guideline applied).

      The parties agree that Defendant’s 24-month sentence was within the range of

30 days to 10 years of imprisonment set by Oklahoma law. See Okla. Stat. tit. 21

§ 1021(A). The parties also agree, and the court ruled, that there is no sufficiently

analogous guideline that could be applied and thus no guidelines range that could be

calculated.2 From here, the parties’ views diverge. Defendant argues that, in

determining his sentence, the district court was obliged to consider the need to avoid


      2
         Defendant contends that, because no guidelines range applies to his offense,
we should not give his sentence the presumption of reasonableness normally
accorded to sentences within a properly calculated guidelines range. See United
States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019). The government does not
dispute this position. We have never addressed the issue, and we will assume,
without deciding, that the presumption of reasonableness does not apply here.
                                            4
unwarranted sentencing disparities between his sentence and the sentences of

defendants with similar records who have been found guilty of similar conduct. See

18 U.S.C. § 3553(a)(6).3 Citing language from previous decisions, however, the

government argues that courts should not consider sentencing disparities under

§ 3553(a)(6) unless both the defendant and his comparators are federal defendants

sentenced under the guidelines, while here Defendant was not sentenced under the

guidelines because no analogous guideline existed.4 We need not resolve this dispute

because, even assuming § 3553(a)(6) applies, Defendant’s sentence is not

unreasonable.

      As an initial matter, the comparators Defendant identifies are not similarly

situated with him. He points to federal regulations imposing a maximum six-month

sentence for indecent exposure in federal parks and a military installation. See 18

U.S.C. § 1865(a); 32 C.F.R. §§ 935.40(f), 935.50; 36 C.F.R. §§ 1.3, 2.34(a)(2). But

engaging in this type of behavior in a prison is far different than doing so in a park or



      3
        See 18 U.S.C. § 3551(a) (stating “a defendant who has been found guilty of
an [ACA] offense . . . shall be sentenced in accordance with the provisions of this
chapter,” which includes § 3553(a)(6)).
      4
        See United States v. Wiseman, 749 F.3d 1191, 1196 (10th Cir. 2014)
(explaining the court “did not have authority to consider state-federal disparities . . .
because § 3553(a)(6) applies only when addressing sentencing disparities among and
between federal defendants sentenced under the federal sentencing guideline
regime”); United States v. Verdin-Garcia, 516 F.3d 884, 899 (10th Cir. 2008) (noting
§ 3553(a)(6) does not require consideration of sentencing disparities among co-
defendants, but instead “requires a judge to take into account only disparities
nationwide among defendants with similar records and Guideline calculations”
(emphasis omitted)).
                                            5
military installation. Prisoners and their guards in a very real sense are captive to

individuals who have shown a propensity to victimize others, flout rules, and defy

authorities in an environment where doing so can create heightened dangers for

guards, prisoners, and the public at large. See generally United States v. Jones, 254

F. App’x 711, 720 (10th Cir. 2007). The federal enclaves Defendant points to do not

share these characteristics, so his conduct is simply not on par with that of defendants

who violate the regulations he cites. See United States v. Lente, 759 F.3d 1149, 1168

(10th Cir. 2014) (“[D]isparate sentences are allowed where the disparity is explicable

by the facts on the record.” (internal quotation marks omitted)).

      Defendant also points to other defendants who were sentenced under the ACA

for violating Okla. Stat. tit. 21 § 1021(A)(1) or similar state laws. We are not

persuaded by these proposed comparisons. The defendant in United States v. Phalan,

39 F. App’x 6 (4th Cir. 2002), who received no prison term, is not an apt comparator

because he did not engage in the conduct in a prison environment, there is no

indication the conduct occurred in an aggravated manner, and nothing indicates he

engaged in this type of behavior on other occasions.5 See Lente, 759 F.3d at 1168.



      5
         As the district court explained, “[D]efendant went about committing th[e]
offense” in a “somewhat aggravated way.” (R. vol. III at 14.) Defendant entered a
guard’s office while she ate lunch. The guard told him to leave and turned her back
to him, but Defendant remained and began masturbating behind her. When the guard
turned around and saw him, she yelled at him to stop and leave. Defendant left but
returned to the office minutes later and asked to use the guard’s computer, causing
her to fear for her safety. Later that day, another prison employee witnessed
Defendant masturbating while watching an attorney meet with her client in an
adjacent cell. In addition to the instant offense, Defendant, in less than a year,
                                            6
The defendant in United States v. Engelhorn, 122 F.3d 508 (8th Cir. 1997), who

received a one-year term, is likewise an inapt comparator because he was convicted

of attempted indecent exposure. Had he been convicted of indecent exposure, he

might have received up to a two-year term of imprisonment. See Engelhorn 122 F.3d

at 510. And the defendant in United States v. Hamlin, No. 5:18-cr-00027-D-1 (W.D.

Okla.), who received a year-and-a-day term, also makes a poor comparator because

his sentence ran consecutive to, not concurrently with, a term he was already serving.

Cf. United States v. Johnson, 565 F. App’x 771, 772–73 (10th Cir. 2013) (affirming

district court’s decision to avoid disparity between similarly situated co-defendants

by imposing consecutive sentences on one and concurrent sentences on the other).

      Beyond failing to identify suitable comparators, Defendant’s argument also

falls short because the district court determined that avoiding unwarranted sentencing

disparities carried little weight compared to other § 3553(a) factors. “[C]onsideration

of unwarranted sentence disparities is but one factor that a district court must balance

against the other § 3553(a) factors in arriving at an appropriate sentence.” Lente, 759

F.3d at 1168 (internal quotation marks omitted). “Of course, the district court need

not afford equal weight to each § 3553(a) factor,” Cookson, 922 F.3d at 1094, and

“[w]e give substantial deference to the district court’s weighing of these factors,”

United States v. Barnes, 890 F.3d 910, 915 (10th Cir. 2018).




accrued nine disciplinary charges for engaging in sexual acts and one disciplinary
charge for indecent exposure while in Bureau of Prisons custody.
                                           7
      Here, the district court took into account all of the § 3553(a) factors. The

court addressed Defendant’s arguments regarding sentencing disparities but accorded

that factor little weight because “comparing indecent exposure defendants and

determining whether any two are similarly situated is . . . extraordinarily difficult,” as

“there really is a fairly broad range of gravity to the offense conduct that could come

under this heading.” (R. vol. I at 31.) Instead, the court determined that Defendant’s

criminal history and the nature and circumstances of the offense (and to a lesser

extent the need for deterrence and incapacitation) were the predominant factors to

consider and accorded them greater weight. On the record before us, we cannot say

the court abused its discretion in its weighing of the § 3553(a) factors.

      In the end, Defendant’s arguments do not persuade us the district court abused

its discretion in imposing a 24-month concurrent term. The sentence is AFFIRMED.


                                             Entered for the Court


                                             Monroe G. McKay
                                             Circuit Judge




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