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

                                TENTH CIRCUIT                               October 24, 2013
                       ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                             No. 12-3282
THOMAS GRIFFIN, JR.,                                (D.C. No. 11-CR-10187-MLB-1)
                                                               (D. Kan.)
       Defendant-Appellant.
                    ____________________________________
                            ORDER AND JUDGMENT*
                       ____________________________________

Before HARTZ, BALDOCK, and EBEL, Circuit Judges.**
                ____________________________________

       Defendant Thomas Griffin pleaded guilty to one count of wire fraud in violation of

18 U.S.C. § 1343. Applying the 2011 Guidelines Manual, the presentence report (PSR)

assigned him a total offense level of 16 and a criminal history category of III, yielding a

Guideline sentencing range of 27–33 months. See U.S.S.G. § 5A. At sentencing, the

district court varied upward and sentenced Defendant to 60 months’ imprisonment. On

appeal, Defendant argues his sentence is procedurally and substantively unreasonable.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we 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  This order and judgment is not binding precedent, except under the doctrines of law of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 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) and 10th Cir. R. 34.1(G).        The case is therefore ordered submitted
without oral argument.
                                             I.

       Defendant acknowledged in his plea agreement that his codefendant, Jordan

Smith, had burglarized residences and businesses and had purchased property knowing it

was stolen. Defendant then helped Smith sell these items on Craigslist by (1) letting

Smith use Defendant’s phone number as a point of contact for prospective buyers and (2)

serving as a conduit between Smith and the buyers. The PSR indicated Smith and

Defendant’s scheme involved approximately thirty residential burglaries, and some

burglaries and thefts from cars and businesses. The PSR also noted items taken during

the residential burglaries were later found at Defendant’s residence.

       The PSR also listed Defendant’s criminal history, which included 19 prior

convictions.   Most of these convictions were for traffic or related violations. Three

convictions were more serious.      These included (1) a 2006 juvenile conviction for

residential burglary when Defendant was fifteen, (2) a 2007 juvenile conviction for auto

burglary, and (3) a 2009 adult conviction for petit theft of a lawnmower from the

backyard of a residence. Defendant was still on probation for this 2009 conviction when

he committed the instant offense. The PSR also listed numerous arrests not resulting in

conviction, including charges for misdemeanor theft, possession of marijuana, cruelty to

animals, and kidnapping. The PSR calculated a 27–33 month Guidelines sentencing

range based on the nature of the wire fraud, Defendant’s acceptance of responsibility, and

his criminal history. The PSR also stated Defendant believed he was addicted to Alcohol

and Lortab, a pain killer; however, he made no efforts to seek treatment for these

addictions prior to sentencing.

                                             1
       Prior to sentencing, the district court filed a letter pursuant to Fed. R. Crim. Pro.

32(h) stating it was considering an upward variance from the Guidelines range. The

court justified the possible variance based on a number of 18 U.S.C § 3553(a) factors.

These included: (1) Defendant’s criminal history, which indicated he was an individual

undeterred from criminal activity not withstanding numerous run-ins with the law; (2) the

need to protect the public from further crimes; and (3) Defendant’s need for substance

abuse counseling, combined with his lack of interest in participating in such counseling.

       In response to the 32(h) letter, Defendant provided a memorandum stating he

wished to postpone counseling until he went to prison because he was employed full-time

and was taking care of his children and his sick mother. Defendant and two others also

testified to these facts at his sentencing hearing.      The court also reviewed letters

submitted by Defendant’s relatives and pastor stating he had turned his life around.

       At sentencing, the court adopted its 32(h) letter and sentenced Defendant to 60

months’ imprisonment plus two years of supervised release with a special condition that

he attends a substance abuse program. The court stated: “[B]asically for the reasons set

forth in my [32(h)] letter, I feel an upward variance is appropriate to meet the factors set

forth in 18 U.S.C Section 3553. . . . I really don’t have anything to add beyond what’s in

the letter.” The court also made sure its 32(h) letter was docketed for review. Defendant

did not object to the court’s sentencing procedure. On appeal however, he now argues

that his sentence is (1) procedurally unreasonable because the court failed to adequately

explain its upward variance and (2) substantively unreasonable because the factors the

court cited do not justify its upward variance. We address each argument in turn.

                                             2
                                             II.

       Defendant argues the district court committed procedural error in four ways.

According to Defendant, the court (1) failed to address his non-frivolous arguments for

leniency; (2) based its decision on clearly-erroneous facts; (3) failed to adequately

explain the chosen sentence; and (4) failed to consider one of the § 3553(a) factors,

namely, avoiding unwarranted sentencing disparities under § 3553(a)(6). Defendant did

not preserve these procedural challenges below. Accordingly, we review them only for

plain error. United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).      Plain error

requires that Defendant show: (1) error; that is (2) obvious under current well-settled law;

(3) affected the Defendant’s substantial rights; and (4) seriously affected the fairness,

integrity, or public reputation of judicial proceedings. Id.

                                             A.

       A sentencing court must “address, in its statement of reasons, the material, non-

frivolous arguments made by the defendant.” United States v. Pinson, 542 F.3d 822, 833

(10th Cir. 2008). The court need not, “recite ‘any magic words’ to demonstrate that it has

considered all of the relevant arguments, but we will not ‘presume the district court

weighed a party’s arguments in light of the § 3553(a) factors where the record provides

no indication that it did so.’” Id. (quoting United States v. Sanchez-Juarez, 446 F.3d

1109, 1116 (10th Cir. 2006)) (emphasis added). Rather, when a defendant makes a non-

frivolous argument for leniency, the court “must somehow indicate” it considered his

arguments and did not rely solely on the PSR or the Guideline range. See United States

v. Jarrillo-Luna, 478 F.3d 1226, 1230 (10th Cir. 2007).

                                              3
       Defendant relies on Sanchez-Juarez to argue the district court failed to address his

non-frivolous arguments for mitigation. This reliance is misplaced. In Sanchez-Juarez,

the district court failed to address the defendant’s non-frivolous arguments for leniency at

all, and instead simply restated its reliance on the PSR and sentencing Guidelines when

sentencing the defendant. Sanchez-Juarez, 446 F.3d at 1112. Here, the court specifically

stated it had reviewed the witness testimony, the letters submitted by Defendant, and

Defendant’s sentencing memorandum. Further, in its 32(h) letter, it stated that it would

not rely exclusively on the PSR. Thus, unlike Sanchez-Juarez, the court here committed

no error, let alone plain error, as it gave some indication it had considered and then

rejected Defendant’s arguments for leniency.

                                             B.

       Sentencing based on clearly erroneous facts constitutes procedural error. Gall v.

United States, 552 U.S. 38, 51 (2007). Defendant’s only argument that the court relied

on clearly erroneous facts appears in a footnote on page 17 of his opening brief. He

argues the district court relied on a clearly erroneous fact when it did not retreat from the

assertion in its 32(h) letter that Defendant was not interested in participating in substance

abuse counseling. Defendant argues this is clearly erroneous in light of the evidence he

submitted that shows he had not declined treatment, but instead wished to postpone it

until he entered prison because he had no time to engage in such treatment.

       Defendant was released on bond more than one year before sentencing. In that

time, nothing in the record suggests he made any effort to find out how long a treatment

program might last or the time commitment such a program might entail. Given the

                                             4
absence of any effort on Defendant’s part to even research treatment programs, the

court’s conclusion that he was not truly interested in substance abuse counseling was not

clearly erroneous. Thus, the court did not err.

                                            C.

       Defendant cites an unreported case for the proposition that, “if the court imposes a

sentence outside the Guidelines range, [18 U.S.C. § 3553(c)(2)] requires the court to

provide ‘the specific reason for the imposition of a sentence different from [the

Guidelines range].’” United States v. Ruiz-Velgara, 302 F. App'x 765, 767 (10th Cir.

2008) (quoting 18 U.S.C. § 3553(c)(2)). “We have never held, however, that the district

court must list the reasons why it could have chosen a different sentence and then explain

why it rejected them.” United States v. Jarrillo-Luna, 478 F.3d 1226, 1230 (10th Cir.

2007) overruled on other grounds, United States v. Lopez-Macias, 661 F.3d 485 (10th

Cir. 2011). Rather, under Gall, a sentencing explanation is adequate when it allows “for

meaningful review” and “promote[s] the perception of fair sentencing.” Gall, 552 U.S. at

50 (2007). “[A]lthough a district court must provide reasoning sufficient to support the

chosen variance, it need not necessarily provide ‘extraordinary’ facts to justify any

statutorily permissible sentencing variance.” United States v. Smart, 518 F.3d 800, 807

(10th Cir. 2008) (emphasis in original). “Generally, when a sentence that varies from the

advisory Guidelines range is nevertheless tethered to the Guidelines themselves by,

taking into account, e.g., criminal history, offense characteristics, and offense levels,




                                             5
we . . . consider this a reasonable methodology.” 1 United States v. Hall, 473 F.3d 1295,

1314 (10th Cir. 2007) (internal quotations omitted).

       Here, the sentencing court tied its upward variance to the reasons in its 32(h)

letter. This letter notes (1) Defendant’s criminal history, which “strongly suggest[s] an

individual who is undeterred from criminal activity notwithstanding his numerous

contacts with the criminal justice system,” (2) the need to protect the public, and (3)

Defendant’s need for substance abuse counseling. These reasons are tethered to the

Guidelines themselves. See 18 U.S.C. § 3553(a). Thus, the court committed no error,

here, as it provided at least three specific reasons for its upward variance which is

sufficient explanation to allow for meaningful review of Defendant’s sentence.

                                            D.

       Neither Defendant nor his counsel raised sentencing disparity before the district

court. Thus, as with Defendant’s other procedural error arguments, “we review this

newly raised argument for plain error.” Gantt, 679 F.3d at 1248. Defendant argues that,

under United States v. Lente, 647 F.3d 1021 (10th Cir. 2011), he need not challenge the

district court’s failure to discuss sentencing disparities to preserve the issue for appeal.

He also argues Lente mandates express consideration of sentencing disparity by the

sentencing court whenever it varies upward. Defendant reads Lente too broadly. In

Lente, the defendant “devoted much of her briefing and argument” before the district

1
 More explanation may be required in the context of an upward departure. See United
States v. Proffit, 304 F.3d 1001, 1012 (10th Cir. 2002). Here, however, the court did not
depart, but rather varied upward and tethered the reasons for its variance to the
Guidelines themselves.

                                             6
court to the need to avoid unwarranted sentencing disparities, yet it failed to address the

issue. Lente, 647 F.3d at 1034 (emphasis added). On appeal, we held the defendant’s

sentencing-disparity argument was material and non-frivolous and thus the court’s failure

to expressly address it was procedural error. Id. at 1035. As, here, Defendant did not

raise sentencing disparity before the district court at all, we find Gantt more apropos.

       In Gantt, we upheld an upward variance to 20 years imprisonment from the

Guideline sentence of seven years. Id. In doing so, we rejected the defendant’s argument

that the court failed to address sentencing disparity. Id. Instead, we reiterated that the

district court need not expressly discuss each of the § 3553(a) factors. Id. at 1249; see

also Sanchez-Juarez, 446 F.3d at 1116 (holding a sentencing court “is not obligated to

expressly weigh on the record each of the factors set out in § 3553(a)”). Further, we

stated, “one can say as a general rule that when a court considers what the Guidelines

sentence (or sentencing range) is, it necessarily considers whether there is a disparity

between the defendant’s sentence and the sentences imposed on others for the same

offense.”2   Gantt, 679 F.3d at 1248–49.         Here, the district court properly noted


       2
         Defendant relies heavily on our statement in Lente that even if a defendant did
not raise a specific argument on sentencing-disparity, a sentencing court must consider
the § 3553(a) factors, and one factor it must consider is the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty
of similar conduct. See id. at 1034. This statement, however, pertained to whether the
defendant’s sentencing-disparity argument before the district court had “colorable legal
merit and a factual basis.” Id. at 1035. Nowhere does Lente hold sentencing disparity
requires a more stringent standard of review than the other § 3553(a) factors even where
the defendant fails to raise the issue at sentencing. Further, any statement in Lente that
could be construed as mandating express consideration of sentencing disparities
whenever a sentencing court varies upward is neither “necessarily involved nor essential
to determination” of that case and is therefore dicta. Thompson v. Weyerhaeuser Co.,
                                             7
Defendant’s Guideline sentencing range and then varied upward from that range based on

a number of § 3553(a) factors. Therefore, under Gantt, it necessarily considered any

potential sentencing disparity between Defendant and other similar offenders.

      The district court sufficiently addressed Defendant’s arguments and adequately

explained its reasoning and provided a basis for us to review meaningfully the

substantive reasonableness of Defendant’s sentence. Thus, the district court committed

no procedural error, let alone plain error, in its explanation of Defendant’s sentence and

its decision to vary upward from the Guidelines range.

                                             III.

      In assessing the substantive reasonableness of a sentence, the defendant need not

object at sentencing to preserve the issue. United States v. Mancera-Perez, 505 F.3d

1054, 1058 (10th Cir. 2007).       Thus, we review the substantive reasonableness of

Defendant’s sentence for abuse of discretion. Id. (citing Rita v. United States, 551 U.S.

338, 351 (2007)). “Under a deferential abuse-of-discretion standard, we deem a sentence

unreasonable only if it is ‘arbitrary, capricious, whimsical, or manifestly unreasonable.’”

Gantt, 679 F.3d at 1249 (quoting United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.

2009)). Put another way, we will only reverse a sentence for abuse of discretion “if the

court ‘exceeded the bounds of permissible choice,’ given the facts and the applicable law


582 F.3d 1125, 1129 (10th Cir. 2009). At most, Lente dictates a sentencing court must
expressly consider a particular § 3553(a) factor on the record where the defendant
properly presents an argument under it which has colorable legal merit and a factual
basis. See Lente, 647 F.3d at 1034–35. Here, Defendant did not raise the issue of
sentencing disparity before the district court and, as discussed above, the district court
properly addressed his arguments for leniency. Thus, Lente has no bearing on this case.
                                            8
in the case at hand.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)

(quoting United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986). “The fact that

[we] might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.

       Defendant claims his sentence is substantively unreasonable for three reasons.

First, he claims the Guidelines already account for all of the reasons the district court

relied on in varying upward and thus the district court “rejected the institutional expertise

of the Sentencing Commission” without giving any reason why. Second, Defendant

challenges the accuracy of the particular factual circumstances cited by the district court

in varying upward. Finally, Defendant argues his variance and resulting sentence do not

accord with comparable cases.

       The record belies Defendant’s first argument. As discussed above, the district

court gave a number of reasons for varying upward that were tethered to the § 3553(a)

factors: (1) he was undeterred from criminal activity notwithstanding his numerous

contacts with the criminal justice system; (2) the public needed protection from further

crimes; and (3) he needed substance-abuse treatment. To the extent Defendant argues the

Sentencing Guidelines calculation already sufficiently accounted for these concerns, he

essentially asks us to re-weigh the evidence and the § 3553(a) factors. We decline this

invitation. “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. Instead, we must give due deference to the district court’s decision



                                               9
that the § 3553(a) factors, on a whole, justify the [sentence imposed].” Smart, 518 F.3d

at 808 (internal quotations omitted).

       As to the accuracy of the particular facts relied on by the district court, Defendant

argues the court erred in finding he was involved in a pattern of activity that involved

residential burglaries, which are crimes of violence, because nothing in the record shows

he knew the items he listed on Craigslist were stolen from residences. But in his plea

agreement Defendant acknowledges his codefendant had burglarized residences and

Defendant agreed to make restitution for those residential burglaries. As to the accuracy

of the district court’s assessment of Defendant’s lack of interest in substance abuse

treatment—which he admitted he needed—as discussed above, Defendant’s failure to

make any effort to even research treatment programs while out on bail supports the

accuracy of this finding and the court did not abuse it’s discretion in considering it.

       Finally, Defendant’s reliance on comparable cases is unavailing. For example, in

Gantt, we upheld a sentence where the district court varied upward to nearly three times

the Guideline range, but where the sentence imposed was still only about a quarter of the

statutory maximum sentence. Gantt 679 F.3d at 1249–51. In Gantt, the Guideline

sentence for the defendant’s crime was seven years, but other defendants who committed

the same crime had been sentenced to between 10 years to life imprisonment. Id. at

1249–50. In light of this range and the district court’s consideration of the § 3553(a)

factors, we held a sentence of 20 years was not substantively unreasonable. Id. at 1250–

51; see also United States v. Evans, 470 F. App'x 340, 343 (5th Cir. 2012) (affirming

sentence as substantively reasonable that varied upward from an applicable Guideline

                                             10
range of 18–24 months to 60 months’ imprisonment where the defendant pleaded guilty

to one count of wire fraud in violation of 18 U.S.C. 1343).

      Here, Defendant’s Guideline sentencing range was 27–33 months; however, the

statutory maximum for the wire fraud at issue is 20 years. See 18 U.S.C. § 1343. In

determining an upward variance to 60 months’ imprisonment was appropriate, as

discussed above, the court considered a number of 3553(a) factors.       As in Gantt,

Defendant’s sentence is less than three times the minimum Guideline sentence, and about

one quarter the length of the statutory maximum sentence for a similar crime. Further,

Defendant’s variance is less extreme than the upward variance in Evans.          Thus,

Defendant has not shown that the district court exceeded the bounds of permissible

choice in sentencing him to 60 months’ imprisonment. Accordingly, his sentence is not

substantively unreasonable.

      AFFIRMED.

                                         Entered for the Court,



                                         Bobby R. Baldock
                                         United States Circuit Judge




                                            11
United States v. Griffin, No. 12-3282
EBEL, J., concurring in part, dissenting in part.


       I agree with the majority that there is no procedural error in this case that warrants

relief. Nevertheless, I would vacate Defendant Thomas Griffin, Jr.’s sixty-month above-

guideline sentence as substantively unreasonable.

       In imposing this sentence, the district court nearly doubled the usual sentence that

the sentencing commission established for the “mine run” of cases involving offenses and

defendants with criminal histories similar to Griffin’s. The district court varied upward

to such an extent because the district court determined that Griffin, like his co-defendant

Jordan Smith, was incorrigible. I cannot agree, in light of Griffin’s young age (twenty-

one at the time of sentencing); the fact that Griffin has never before served any time in

jail, let alone prison, for any of his three prior convictions1; because he was less complicit

in the conduct underlying his federal conviction than his co-defendant; and because

Griffin’s prior criminal history does not indicate that Griffin just committed the same

offenses over and over again. There is nothing in this record that justifies such a

significant upward variance.


1
  See United States v. Qualls, 373 F. Supp. 2d 873, 877 (E.D. Wis. 2005) (“Generally, a
lesser period of imprisonment is required to deter a defendant not previously subject to
lengthy incarceration than is necessary to deter a defendant who has already served
serious time yet continues to re-offend.”); United States v. Hammond, 240 F. Supp. 2d
872, 880 (E.D. Wis. 2003) (noting that “if a defendant’s prior sentences were measured in
months or days, a federal sentence of just a few years would likely provide a significant
deterrent”); cf. United States v. Mishoe, 241 F.3d 214, 220 (2d Cir. 2001) (noting that, “if
a defendant served no time or only a few months for the prior offenses, a sentence of
even three or five years for the current offenses might be expected to have the requisite
deterrent effect”).
       I recognize that we must afford the district court’s sentencing decision significant

deference, see Gall v. United States, 552 U.S. 38, 41, 49, 51-52 (2007), and that it will be

a rare sentence that is substantively unreasonable, see United States v. Fraser, 647 F.3d

1242, 1247 (10th Cir. 2011). And there are factors in Griffin’s case that would probably

justify a sentence above the guideline range. But here the variance goes too far, and the

resulting sixty-month sentence is substantively unreasonable.




                                             2
