                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       June 18, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 06-1480
 v.                                             (D.Ct. No. 04-cr-00507-PSF)
                                                         (D . Colo.)
 CHRISTOPHER M ILLER,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      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); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant Christopher M iller pled guilty to robbery affecting interstate



      *
         This order and judgment is not binding precedent except under the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.
comm erce in violation of 18 U.S.C. § 1951(a) and brandishing a firearm during

the commission of a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii). He now appeals his eighty-four-month sentence for

brandishing a firearm, on grounds the district court’s application of the mandatory

minimum sentence proscribed by 18 U.S.C. § 924(c) resulted in a gross disparity

of sentencing between him and his co-defendant, M r. Lardale Lewis, in violation

of the Equal Protection Clause. W e exercise jurisdiction pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291 and affirm M r. M iller’s sentence.



                               I. Factual Background

      On the morning of November 15, 2004, M r. M iller and M r. Lewis

attempted to rob a Red Lobster Restaurant in Pueblo, Colorado. The restaurant is

a business in and affecting interstate commerce, importing food and other items

from outside the State of Colorado for sale, and which uses the proceeds

generated by its sales to reinvest in bringing in items from out of state.



      On the morning of the robbery, M r. M iller carried a handgun to the

restaurant. 1 W hen he and M r. Lewis encountered an employee outside of the

      1
          M r. M iller’s plea agreement states M r. Lewis knew M r. M iller was armed
with a firearm. In contrast, M r. Lewis’s plea agreement omits any reference to
his knowledge M r. M iller had a gun. As discussed hereafter, M r. Lewis, unlike
M r. M iller, did not plea or admit to brandishing a weapon and the government
                                                                         (continued...)

                                          -2-
restaurant, M r. M iller pointed the gun at the employee and directed him to lie

down and give his employee jacket to him, which M r. M iller then put on. M r.

M iller and M r. Lewis then confronted another employee, who they directed to

knock on the restaurant door in an effort to gain entry into the building.

However, the employees inside the building realized what was going on and

telephoned the police. Shortly after the two men fled, they were apprehended.

A uthorities found M r. M iller on the roof of another business and saw him throw a

functioning Glock 9mm handgun from that roof. After his arrest, M r. M iller

confessed to the crime and also implicated M r. Lewis.



                             II. Procedural Background

      On M ay 23, 2005, M r. M iller pled guilty to one count of robbery affecting

interstate commerce in violation of 18 U.S.C. § 1951(a) and one count of

brandishing a firearm during the commission of a crime of violence in violation

of 18 U.S.C. § 924(c). In turn, M r. Lewis pled guilty to the robbery count, but

not to brandishing a firearm.



      M r. M iller acknowledged at his plea hearing, as well as in his statement in

advance of his guilty plea and his plea agreement, that by pleading guilty he

      1
       (...continued)
declined to enhance M r. Lewis’s sentence for brandishing a weapon based on its
conclusion it could not prove he knew M r. M iller had the firearm with him.

                                         -3-
understood he would be subject to not less than seven years imprisonment for the

charge of brandishing a firearm. 2 Thereafter, in preparing the presentence report

for M r. M iller, the probation officer noted M r. M iller directly threatened two

robbery victims when he brandished the firearm, pointing the gun at one

restaurant employee as he laid on the ground and at another employee who felt

the gun being stuck into his left side. W ith respect to the other defendant’s

presentence report, the probation officer noted a five-level adjustment for

brandishing a firearm under United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) § 2B3.1(b)(2) appeared to be warranted for M r. Lewis, but not for

M r. M iller, as he, unlike M r. Lewis, pled guilty to brandishing a firearm in

violation of 18 U.S.C. § 924(c). However, the probation officer noted that while

it was “reasonably foreseeable” to M r. Lewis that M r. M iller would possess a

firearm during the attempted robbery, the government felt it could not carry its

burden of proving by a preponderance of the evidence that M r. Lew is knew M r.

M iller was armed w ith a firearm when they went to rob the restaurant. As a

result, the probation officer recommended against applying an upward adjustment

to M r. Lewis’s sentence.




      2
         Specifically, at the hearing, the district court pointed out to M r. M iller
that, by virtue of his guilty plea to the weapon brandishing count, he would have
to serve a seven-year consecutive sentence, which M r. M iller stated he
understood.


                                          -4-
      In response to the probation officer’s recommendations, M r. M iller moved

for a downward departure under U.S.S.G. § 5K2.0, on grounds his case presented

exceptional circumstances because of the potential sentence disparity based on the

fact he pled guilty to the firearm brandishing count, while the government

dism issed the same count against M r. Lewis. He also argued for a below-

Guidelines sentence under 18 U.S.C. § 3553(a) on grounds the government could

not explain why the other defendant, M r. Lewis, received a sentence which did

not include additional time under either § 924(c) or the applicable Guidelines

enhancement. In addition, M r. M iller also filed a pro se motion for departure,

claiming, in part, that his and M r. Lewis’s different sentences constituted

“selective prosecution,” in violation of the Equal Protection Clause, but not

specifically mentioning the unconstitutional application of 18 U.S.C. § 924(c)

under the Equal Protection Clause. 3

      3
         The government contends M r. M iller did not raise the issue he now
brings on appeal regarding the unconstitutional disparity of his sentence
compared to M r. Lewis’s sentence, which he now bases on the unconstitutional
application of 18 U.S.C. § 924(c). As a result, the government argues our
standard of review for his new ly-raised issue is plain error. However, we
construe M r. M iller’s pro se pleading liberally, see Haines v. Kerner, 404 U.S.
519, 520 (1972), and, giving him the benefit of the doubt, conclude for the
purpose of this appeal he generally raised the issue in the district court when he
claimed the difference in sentencing violated the Equal Protection Clause.
M oreover, even if M r. M iller had not previously framed his Equal Protection
objection expressly in the context of a variance under § 3553(a), we do not
require a defendant to make such an objection in order to preserve a claim his
sentence is unreasonably long under those factors. See U nited States v. Torres-
Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006), petition for cert. filed (Nov. 22,
                                                                        (continued...)

                                         -5-
      At the sentencing hearing, the district court engaged in a discussion with

government counsel over the possibility of a sentence disparity; government

counsel explained that while it might be possible to prove an identical § 924(c)

violation against M r. Lewis, different circumstances existed given M r. Lewis did

not make an admission about possessing a gun or being involved in the robbery,

as did M r. M iller. Counsel also explained direct evidence connected M r. M iller

with the gun, including when authorities saw him toss it from the roof-top.

Counsel also pointed out an eighty-four-month sentence constituted the statutory

mandatory minimum under 18 U.S.C. § 924(c)(1)(A)(ii), and the only Guidelines

departures from the mandatory minimum did not apply to M r. M iller’s

circumstance.



      After considering the advisory Guidelines and the sentencing factors in 18

U.S.C. § 3553(a), together with parties’ objections and arguments, the district

court sentenced M r. M iller to six months on the robbery count and eighty-four

months on the firearm brandishing count, to run consecutively, for a total

sentence of ninety months. In imposing the sentence, the district court noted it

was a serious crime of violence placing individuals and the community in real

danger of physical injury and causing psychological injury. In response to the

      3
       (...continued)
2006) (No. 06-7990). Instead, we review for reasonableness the sentence’s
length, as guided by the factors in 18 U.S.C. § 3553(a). See id.

                                         -6-
disparity argument, the district court judge noted it was an appropriate sentence

and that even if he had the ability to go below the eighty-four-month mandatory

minimum:

      I don’t believe that would be appropriate under these circumstances,
      and I don’t believe that the disparity in sentences is unfair and
      certainly not unconstitutional.

             As [government counsel] has correctly noted, there were some
      substantial proof differences that justified a lower sentence for the
      other defendant, M r. Lewis. And so I just don’t see that there is a
      disparity here that is unjustified given those proof limitations that
      occurred with respect to M r. Lewis.

R., Vol. III at 34-35.



                                  III. Discussion

      On appeal, M r. M iller raises one issue. He contends an unconstitutional

disparity under the Equal Protection Clause exists, based on the application of 18

U.S.C. § 924(c), because he received a ninety-month 4 sentence for the same

conduct as his co-defendant, M r. Lewis, who received only a thirty-two-month

sentence. In support of this contention, M r. M iller suggests: 1) he and M r. Lewis

are equally responsible for the robbery and, therefore, they should receive related

sentences; and 2) their conduct is the same, as evidenced by the stipulated facts in

their plea documents, which are nearly identical, with the only appreciable

      4
         As previously indicated, M r. M iller received both a six-month sentence
for the robbery and an eighty-four-month consecutive sentence for brandishing a
weapon, totaling ninety months imprisonment.

                                         -7-
distinction being M r. Lewis’s omission in his stipulated facts that he knew of the

existence of the gun at the scene of the crime. W hile M r. M iller admits no

controlling authority exists holding the mandatory minimum sentence statute, 18

U.S.C. § 924(c), facially or per se violates the Equal Protection Clause, he

suggests its application in his case is unconstitutional because no rational

relationship exists between the mandatory minimum sentence and the disparate

sentence imposed on him in comparison to M r. Lewis. In making his Equal

Protection argument to contest his sentence, he relies on the factor in § 3553(a)(6)

regarding “the need to avoid unwarranted sentence disparities among defendants

with similar records w ho have been found guilty of similar conduct.” H is

argument on appeal no longer involves his request for a downward departure

under C hapter Five of the Guidelines.



      W e begin our discussion by clarifying that a sentence above or below the

recommended Guidelines range based on an application of Chapters Four or Five

of the Guidelines is referred to as a “departure,” while a sentence above or below

the recommended Guidelines range through application of the sentencing factors

in 18 U.S.C. § 3553(a) 5 is called a “variance.” United States v. Atencio, 476 F.3d

      5
          18 U.S.C. § 3553(a) provides, in part, the court shall consider:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
                                                                     (continued...)

                                          -8-
1099, 1101 n.1 (10th Cir. 2007) (en banc request denied). Thus, on appeal, it is

evident M r. M iller is no longer requesting a downward departure under Chapter

Five. Instead, he makes a variance request by claiming his sentence is

unreasonable under § 3553(a)(6) based on an alleged unconstitutional sentencing

disparity in the application of 18 U.S.C. § 924(c) to his sentence, which mandates

a minimum seven-year sentence, as compared with his co-defendant’s sentence of

only thirty-two months.



      W e review for reasonableness the sentence’s length, as guided by the

factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006) (per curiam). The § 3553(a) factor we concentrate on in this

appeal is “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” See 18

      5
       (...continued)
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant;
             and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available; ...
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                         -9-
U.S.C. § 3553(a)(6). W e require reasonableness in two respects – “the length of

the sentence, as well as the method by which the sentence was calculated.”

Kristl, 437 F.3d at 1055. Because brandishing a w eapon carries a mandatory

minimum sentence of seven years under 18 U.S.C. § 924(c), the recommended

Guidelines range in this case is the mandatory minimum of eighty-four months.

See U.S.S.G. § 5G1.1(b). If the district court, as here, “properly considers the

relevant Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable.” Kristl, 437 F.3d at 1055.



      In addition, this court has held no constitutional error occurs when a

defendant pleads guilty and receives the required mandatory minimum sentence

imposed by statute, and, similarly, no non-constitutional Booker error occurs

when, based on admitted facts in a guilty plea, “the district court had no

discretion under the statute to do other than impose the mandatory minimum

sentence.” United States v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005)

(holding, based on admitted facts in the defendant’s guilty plea to conspiracy to

possess with intent to distribute methamphetamine, that the district court had no

discretion to do other than impose the statutory mandatory minimum sentence of

120 months imprisonment). While w e recognize a Congressional objective exists

in avoiding disparate sentences between co-defendants, we have determined

“Congress chose to avoid unwarranted disparities through a guideline system

                                         -10-
which considered various facts concerning the offense and the offender.” United

States v. M aden, 114 F.3d 155, 159 (10th Cir 1997) (quotation marks and citation

omitted). Thus, we have concluded “‘disparate sentences are allowed where the

disparity is explicable by the facts on the record.’” Id. (quoting United States v.

Garza, 1 F.3d 1098, 1101 (10th Cir. 1993)).



      In this case, M r. M iller pled guilty to brandishing a weapon, and the district

court applied the mandatory minimum sentence required under 18 U.S.C.

§ 924(c)(1)(A)(ii), which is also the G uidelines range. Thus, it is clear M r.

M iller’s sentence was properly calculated and a rebuttable presumption exists as

to it reasonableness. Kristl, 437 F.3d at 1053-55. Our inquiry, then, concerns

whether M r. M iller’s sentence is unreasonable under § 3553(a) based on his “as-

applied” challenge to the application of § 924(c) to his circumstances. However,

after a review of the applicable facts and legal principles in this case, it is clear

the application of 18 U.S.C. § 924(c) in sentencing did not result in an

unconstitutionally unreasonable or otherw ise disparate sentence.



      As the district court explained, the disparity in sentencing in this case was

clearly explicable, as demonstrated by several facts. First, regardless of whether

both individuals committed the same robbery, M r. M iller pled guilty to the

weapon brandishing charge and M r. Lewis did not. In addition, M r. Lewis did not

                                          -11-
make any admission he knew M r. M iller possessed a gun when they went to rob

the restaurant. Next, no evidence in the record suggests M r. Lewis brandished the

weapon, while two witnesses stated M r. M iller held the gun on them and

authorities saw M r. M iller throw a gun from a roof shortly after the robbery

attempt and prior to his arrest. 6 As the probation officer noted, while it may have

been reasonably foreseeable M r. M iller would possess a firearm during the

attempted robbery, the government reasonably believed it could not carry its

burden of proving by a preponderance of the evidence that M r. Lew is knew M r.

M iller was armed with a firearm when they approached the restaurant. The

district court recognized this w hen it discussed the disparity between the two

sentences under § 3553(a)(6) and stated substantial proof differences justified a

low er sentence for M r. Lewis. 7




      6
        The record also discloses M r. Lew is had a low criminal history score of I,
which resulted in his receiving a low er sentence than if he had a higher history
score. While M r. M iller received a mandatory minimum sentence under § 924(c),
we note his criminal history score of III w as higher than M r. Lewis’s.
      7
          W hile M r. M iller relies on United States v. Trujillo, 906 F.2d 1456 (10th
Cir. 1990), in support of his appeal, we note the disposition in that case actually
supports the disparity in sentencing in this case. In Trujillo, we upheld the
disparity in sentencing between two co-defendants involved in the same criminal
activity, given the defendant who received the longer sentence had not, like his
co-defendant, accepted responsibility for his conduct, nor was he entitled to a
reduction for his role in the offense. Id. at 1465.

                                         -12-
                                    IV. Conclusion

      Under these distinctly different circumstances, it is plain M r. M iller’s

sentence is reasonable and no unconstitutional disparity exists. Accordingly, we

A FFIR M M r. M iller’s sentence.



                                        Entered by the C ourt:

                                        W ADE BRO RBY
                                        United States Circuit Judge




                                         -13-
