                                                                                  FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                         UNITED STATES COURT OF APPEALS                       July 16, 2008
                                                                         Elisabeth A. Shumaker
                                     TENTH CIRCUIT
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                                No. 06-8058
 v.
                                                           (D.C. No. 05-CR-57-D)
                                                               (Dist. of Wyo.)
 JACQUELINE LORRAINE HOLTZ,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


       This case returns to us after the Supreme Court granted certiorari, vacated our

judgment, and remanded for reconsideration in light of Gall v. United States, 128 S. Ct.

586 (2007). Defendant-Appellant Jacqueline Lorraine Holtz had successfully sought

certiorari from this Court’s decision, which affirmed her 87-month sentence. See Holtz v.

United States, 128 S. Ct. 1648 (2008). We now apply Gall and our subsequent case law

to evaluate the procedural and substantive reasonableness of Ms. Holtz’s sentence. We

find no error and, accordingly, AFFIRM.


       *
            This Order and Judgment is not binding precedent, except under the doctrines of law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
the appellate record, this three-judge panel has determined unanimously that oral argument
would not be of material assistance in the determination of this appeal. See Fed. R. App. P.
34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
                                    BACKGROUND

       We detailed the facts and procedural history of this case in our previous order,

United States v. Holtz, 226 F. App’x 854 (10th Cir. 2007) (unpublished). Because the

Supreme Court only vacated the judgment, and not the order itself, we need not fully

repeat that discussion here. A brief summary will suffice.

       Defendant-Appellant Jacqueline Lorraine Holtz pleaded guilty to possession of

child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). The Pre-

Sentence Report (“PSR”) recommended an offense level of 29, which incorporated

several adjustments under the United States Sentencing Guidelines (“Guidelines”).

Because Ms. Holtz had no prior criminal record, the PSR placed her in Criminal History

Category I. The advisory Guidelines range for her offense was 87 to 108 months.

       Following testimony at the sentencing hearing, the district court adopted the PSR’s

recommended factual findings. Ms. Holtz asked for a sentence below the advisory

Guidelines range. Ms. Holtz claimed to have suffered from childhood sexual abuse,

which she said ultimately led her to commit the charged offense. The district court

accepted Ms. Holtz’s childhood abuse claims as true but determined that a downward

variance was not warranted. The court sentenced her to an 87-month term of

imprisonment, the bottom of the Guidelines range, and imposed a supervised release term

of 10 years.

       Ms. Holtz timely filed an appeal. We affirmed, concluding that Ms. Holtz’s

sentence was procedurally and substantively reasonable. See Holtz, 226 F. App’x at 862.

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Subsequently, the Supreme Court decided Gall. We review the merits of Ms. Holtz’s

appeal in light of that decision.

                                        DISCUSSION

       We review Ms. Holtz’s sentence for reasonableness, “giving deference to the

district court under ‘the familiar abuse-of-discretion standard.’” United States v. A.B., ___

F.3d ___, Case No. 06-2164, 2008 WL 2498026, at *2 (10th Cir. June 24, 2008) (quoting

Gall, 128 S. Ct. at 594). “A district court abuses its discretion when it renders a judgment

that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (internal quotation marks omitted).

In particular,

                 we recognize 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 so long as it falls within the realm of these
                 rationally available choices. And there are perhaps few arenas where
                 the range of rationally permissible choices is as large as it is in
                 sentencing . . . .

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007), cert. denied, 128 S. Ct.

1917 (2008). “Reasonableness review is comprised of a procedural component and a

substantive component.” United States v. Haley, ___ F.3d ___, Case No. 07-5041, 2008

WL 2514156, at *3 (10th Cir. June 25, 2008). Ms. Holtz’s appeal puts both components

at issue.

                               A. Procedural Reasonableness

       Gall instructs that we must first ensure that the district court has committed no

                                              -3-
significant procedural error. Gall, 128 S. Ct. at 597; see Muñoz-Nava, 524 F.3d at 1146.

One of the circumstances in which such error may arise is when a sentencing court

“treat[s] the Guidelines as mandatory.” Gall, 128 S. Ct. at 597. As we discussed in our

prior order, the essence of Ms. Holtz’s procedural challenge was that the district court

effectively rendered the Guidelines mandatory by ignoring or paying only lip service to

the other § 3553(a) factors. Holtz, 226 F. App’x at 859 & n.4. Contrary to Ms. Holtz’s

challenge, we concluded that the district court specifically acknowledged the § 3553(a)

factors. Id. at 859-60. It stated:

              The Court looks carefully at 18 United States Code 3553(a) factors
              and has the statute open on the bench and is reviewing them as I
              speak. I’ve considered the nature and circumstances of the offense
              and the need for the sentence to reflect the seriousness of the offense;
              before that, a deterrence to criminal conduct by this defendant and
              others; to protect the public from further crimes of this defendant; to
              provide her with need of medical care and other correctional
              treatment because certainly she’s in need of it; and the Court
              believes that the authors of the sentencing guidelines have taken
              those factors into account to a sufficient degree that I do not think I
              should exercise authority under Booker to depart.1

R., Vol. III, Tr. at 56-57 (Sentencing Hearing, dated June 19, 2006) (emphasis added).

Nothing in Gall leads us to deviate from that conclusion of propriety. In particular, the


       1
              As we previously noted, “[a]lthough both the court and defense counsel
made references to a ‘departure’ during the course of the sentencing hearing, the hearing
transcript makes clear that both the defense and the court recognized that the question for
decision was whether Ms. Holtz was entitled to a variance.” Holtz, 226 F. App’x at 859
n.5. See generally United States v. Atencio, 476 F.3d 1099, 1101 (10th Cir. 2007)
(discussing the distinction between “departures” and “variances”), overruled in part on
other grounds by Irizarry v. United States, 128 S. Ct. 2198, 2201 n.1, 2203-04 (2008).


                                            -4-
quoted passage indicates that the district court knew that it had discretion, and it

intentionally chose to impose a sentence at the bottom of the Guidelines range.

Accordingly, we hold that the district court did not apply the Guidelines in a mandatory

fashion and, consequently, Ms. Holtz’s procedural challenge fails.2

                             B. Substantive Reasonableness

       Now that we have determined that no procedural error has occurred, we must

consider the substantive reasonableness of the sentence imposed. Gall, 128 S. Ct. at 597.

“The substantive component relates to the length of the sentence: In evaluating the

substantive reasonableness of a sentence, we ask whether the length of the sentence is

reasonable considering the statutory factors delineated in 18 U.S.C. § 3553(a).” A.B.,

2008 WL 2498026, at *2 (internal quotation marks omitted) (quoting United States v.


       2
                After the remand from the Supreme Court, we directed the parties to file
supplemental briefs addressing the impact of Gall on the resolution of Ms. Holtz’s appeal.
For the first time in her supplemental brief, Ms. Holtz intimates that her sentence also is
procedurally unreasonable because the district court failed to offer an adequate
explanation. Aplt. Supp. Br. at 7 (“The Sentencing Court did not give an adequate
explanation for its sentence such that the Appellate Court could give meaningful review
of the Sentencing Courts [sic] sentence.”). We decline to consider this late-blooming
contention. See, e.g., United States v. Black, 369 F.3d 1171, 1176 (10th Cir. 2004)
(“Failure to raise an issue in the opening appellate brief waives that issue.”). Even if we
were to do so, we would conclude that it was without merit. Under the circumstances of
this case, where the district court imposed a sentence within the advisory Guidelines
range, “as a matter of procedural regularity or reasonableness the district court was
required as a matter of law only to provide a general statement of the reasons for its
imposition of the particular sentence.” McComb, 519 F.3d at 1054 (internal quotation
marks omitted). Viewing the record as a whole, we have no doubt that the district court
satisfied this standard and “arguably may have exceeded” it. A.B., 2008 WL 2498026,
*11 n.18; see McComb, 519 F.3d at 1055.


                                             -5-
Hamilton, 510 F.3d 1209, 1217-18 (10th Cir. 2007), cert. denied, 128 S. Ct. 1922 (2008)).

“A substantively reasonable sentence ultimately reflects the gravity of the crime and the §

3553(a) factors as applied to the case.” United States v. Atencio, 476 F.3d 1099, 1102

(10th Cir. 2007), overruled in part on other grounds by Irizarry v. United States, 128 S.

Ct. 2198, 2201 n.1, 2203-04 (2008).

       The district court has a wide range of discretion in balancing the § 3553(a) factors.

See United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (“We may not examine

the weight a district court assigns to various § 3553(a) factors, and its ultimate assessment

of the balance between them, as a legal conclusion to be reviewed de novo.”). In United

States v. Kristl, 437 F.3d 1050 (10th Cir. 2006) (per curiam), this Court adopted a

rebuttable presumption that sentences within the properly-calculated Guidelines range are

substantively reasonable. Id. at 1054.

       The presumption is permissible, but not required. Gall, 128 S. Ct. at 597 (“If the

sentence is within the Guidelines range, the appellate court may, but is not required to,

apply a presumption of reasonableness.”); see Rita v. United States, 127 S. Ct. 2456, 2462

(2007) (“The first question is whether a court of appeals may apply a presumption of

reasonableness to a district court sentence that reflects a proper application of the

Sentencing Guidelines. We conclude that it can.” (emphasis added)). In Rita, the

Supreme Court “specifically cited our decision in Kristl as an example of the permissible

presumption.” United States v. Angel-Guzman, 506 F.3d 1007, 1012 (10th Cir. 2007).

       “[T]he presumption of reasonableness is a deferential standard that either the

                                             -6-
defendant or the government may rebut by demonstrating that the sentence is

unreasonable when viewed against the other factors delineated in § 3553(a).” United

States v. Tindall, 519 F.3d 1057, 1066 (10th Cir. 2008) (internal quotation marks omitted)

(quoting Kristl, 437 F.3d at 1054).

                 However, given the district court’s institutional advantage over our
                 ability to determine whether the facts of an individual case justify a
                 variance pursuant to § 3553(a) (given that the sentencing judge, for
                 example, sees and hears the evidence, makes credibility
                 determinations, and actually crafts Guidelines sentences day after
                 day), we generally defer to its decision to grant, or not grant, a
                 variance based upon its balancing of the § 3553(a) factors.

Haley, 2008 WL 2514156, at *3.

          Ms. Holtz has failed to rebut the presumption of reasonableness. Based upon the

evidence of childhood sexual abuse that she put before the district court at sentencing,

Ms. Holtz contends that a reasonable sentence under the § 3553(a) factors would consist

of probation with counseling, therapy, and testing. She specifically states that “[t]he

evidence at the sentencing hearing was clear that the only reasonable sentence was

probation with extensive psychosexual counseling.” Aplt. Supp. Br. at 5 (internal

quotation marks omitted). Ms. Holtz’s evidence did implicate certain § 3553(a) factors,

including subsections (a)(1) “(history and characteristics of the defendant”) and (a)(2)(D)

(“the need for the sentence imposed . . . to provide the defendant with needed . . . medical

care”).

          The district court, however, directly addressed the significance of Ms. Holtz’s

evidence for a below-Guidelines sentence and did not abuse its discretion in concluding

                                                -7-
that such a sentence was not appropriate. In particular, the court’s reasoning reflects that

it carefully weighed the § 3553(a) factors implicated by Ms. Holtz’s evidence along with

the other § 3553(a) factors. For example, as § 3553(a)(6) requires, the district court took

into consideration the need to avoid unwarranted sentencing disparities on a nationwide

basis between defendants with similar records and Guidelines calculations. See United

States v. Verdin-Garcia, 516 F.3d 884, 899 (10th Cir. 2008), petition for cert. filed, (U.S.

June 13, 2008) (No. 07-11429), (noting that § 3553(a)(6) “requires a judge to take into

account only disparities nationwide among defendants with similar records and Guideline

calculations” (emphasis omitted)); see also Tindall, 519 F.3d at 1066. The court stated:

                     The Court will accept as a fact that the defendant was abused
              at a young age by an adult male, and the Court’s determination as to
              the application of the guideline sentencing in this case does not
              diminish that conduct against her.

                     But as the United States rightly points out, a substantial
              portion of those who are committed to the custody of the United
              States Bureau of Prisons facility at Butner, North Carolina, which is
              the facility chiefly responsible for treating people who commit sex
              crimes—a substantial portion of them have themselves . . . [been]
              sexually abused as a child.

                     There is nothing particularly out of the ordinary about this.
              This is the typical kind of case presented to me where a person
              claims that they have been sexually abused as a child. It’s not
              uncommon. It’s a routine problem for me to address.

R., Vol. III, Tr. at 54-55. In effect, the district court concluded that Ms. Holtz’s

childhood sexual abuse did not take her out of the category of the “ordinary” defendant

who is sentenced under the Guidelines for similar child-pornography crimes. Because


                                              -8-
district courts are “better positioned to evaluate the ‘ordinariness’” of a defendant “than

we are,” we are inclined to defer to the district court’s conclusion regarding Ms. Holtz.

Smart, 518 F.3d at 808 n.6. Therefore, the district court could reasonably conclude that

because Ms. Holtz’s evidence did not take her out of the category of an “ordinary”

defendant under the Guidelines, that evidence also did not justify a below-Guidelines

sentence.3

       Furthermore, the district court’s reasoning reflects that it recognized the need to

incorporate into the sentencing calculus the seriousness of the offense under subsection

(a)(2)(A). Relevant to that factor, the court stated: “Possession of child pornography is a

serious matter. It’s not just the possessing of it; it’s what is done to innocent victims

worldwide in order to allow adults to knowingly possess it.” R., Vol. III, Tr. at 9; see

also id. at 56 (“The fact of the matter is, little girls were victimized for the purpose of

giving other [sic] adults gratification at their victimization.”).

       We have noted that “[i]n many cases, the Guidelines recommendation and the

district court’s individualized determination will continue to overlap.” Smart, 518 F.3d at

809. In essence, after expressly considering Ms. Holtz’s individual circumstances, the

district court here determined that this was one of those overlap cases. In that regard, the


       3
              In Smart, we recognized that recent Supreme Court decisions, including
Gall, abrogated our prior practice of “[a]llowing sentencing variances only on the
existence of extraordinary defendant characteristics and history.” 518 F.3d at 808
(internal quotation marks omitted). However, just because a sentencing court may vary
when presented with an “ordinary” defendant, certainly does not mean that it must.


                                               -9-
court stated: “[T]he Court believes that the authors of the sentencing guidelines have

taken those factors [implicated by Ms. Holtz’s evidence] into account to a sufficient

degree that I do not think I should exercise authority under Booker to depart.” R., Vol.

III, Tr. at 57. Under the abuse-of-discretion standard defined in Gall and its progeny, we

discern no error in this determination.

                                     CONCLUSION

       Giving due consideration to Gall as the Supreme Court directed, we conclude that

the district court did not commit procedural or substantive error in sentencing Ms. Holtz.

Accordingly, we AFFIRM her sentence.



                                                  ENTERED FOR THE COURT



                                                  Jerome A. Holmes
                                                  Circuit Judge




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