                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                October 10, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



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

               Plaintiff - Appellee,                    No. 05-2303
          v.                                              D. N.M .
 LEROY JOE YAZZIE, JR.,                          (D.C. No. CR-05-184 JC)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      On June 15, 2005, Leroy Joe Yazzie, Sr., pled guilty to one count of

involuntary manslaughter in violation of 8 U.S.C. §§ 1112 and 1153. The

Presentence Investigation Report (PSR ) 1 determined the applicable guideline




      *
        After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
      1
        By stipulation, Yazzie was sentenced under the 2002 edition of the United
States Sentencing Guidelines. Unless otherwise noted, all references to the
guidelines are to that edition.
range to be ten to sixteen months. 2 The district court instead sentenced him to

eighteen months imprisonment — two months in excess of the maximum of the

original guideline range. The district court based its upward departure on the fact

it believed criminal history category I under-represented Yazzie’s criminal

history. 3 See USSG §4A1.3. In light of Yazzie’s two prior tribal convictions for

battery, the district court deemed a criminal history category II to be more

appropriate. This resulted in a modified guideline range of twelve to eighteen

months. Judgment was entered on September 21, 2005. In his timely appeal,

Yazzie argues the district court unreasonably increased his sentencing range by

relying on past tribal convictions. W e exercise jurisdiction under 18 U.S.C. §

3742(a) and 28 U.S.C. § 1291 and AFFIRM .

Discussion:

      W e review sentences imposed after United States v. Booker for

reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a). 543 U.S.


      2
       The PSR determined Yazzie’s initial base offense level as 14 pursuant to
USSG §2A1.2(a)(2), but he received a two level deduction for acceptance of
responsibility under USSG § 3E1.1. His criminal history category was
determined to be I, resulting in a guideline range of ten to sixteen months.
      3
         The PSR advised Yazzie’s criminal history category I may under-
represent Y azzie’s criminal history and category II would be more appropriate.
Yazzie informally objected to this conclusion but filed no formal objections to the
PSR. Because the PSR stated the factors warranting departure, the district court
did not sua sponte depart upward, and Yazzie had reasonable notice. United
States v. Calzada-M aravillas, 443 F.3d 1301, 1306 (10th Cir. 2006) (“A PSR may
satisfy the notice requirement by identifying grounds for an upward departure . . .
.”).

                                         -2-
220, 261 (2005); United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006).

However, the district court “is not required to consider individually each factor

listed in § 3553(a) before issuing a sentence.” United States v. Kelley, 359 F.3d

1302, 1305 (10th Cir. 2004). “[W ]e review legal questions de novo and we

review any factual findings for clear error, giving due deference to the district

court's application of the guidelines to the facts.” United States v. Wolfe, 435

F.3d 1289, 1295 (10th Cir. 2006) (quotation and citation omitted).

      After Booker, “district courts still maintain the ability to depart downward

or upward from the sentencing guideline range, so long as the sentence imposed

is reasonable in light of the factors in 18 U.S.C. § 3553(a).” United States v.

M ontgomery, 439 F.3d 1260, 1262 (10th Cir. 2006). On review, “a sentence that

is properly calculated under the Guidelines is entitled to a rebuttable presumption

of reasonableness.” Kristl, 437 F.3d at 1054. 4 W e require reasonableness in two

      4
          The presumption of reasonableness is an appellate presumption only.
Rita v United States, 127 S.Ct. 2456, 2465 (2006). “[T]he courts of appeals’
‘reasonableness’ presumption, rather than having independent legal effect, simply
recognizes the real-world circumstance that when the judge’s discretionary
decision accords with the Commission’s view of the appropriate application of §
3553(a) in the mine run of cases, it is probable that the sentence is reasonable.”
Id. And the presumption is discrete and quite limited:
       For one thing, the presumption is not binding. It does not, like a
       trial-related evidentiary presumption, insist that one side, or the
       other, shoulder a particular burden of persuasion or proof lest they
       lose their case. Nor does the presumption reflect strong judicial
       deference of the kind that leads appeals courts to grant greater
       factfinding leeway to an expert agency than to a district judge.
       Rather, the presumption reflects the fact that, by the time an appeals
       court is considering a within-G uidelines sentence on review, both the

                                          -3-
respects — “the length of the sentence, as well as the method by which the

sentence was calculated.” Id. at 1055. W hen evaluating departures and variances

post-Booker, 5 we first determine whether the initial guideline range was

appropriately calculated, then examine whether the departure was warranted under

the traditional departure scheme, 6 and finally consider w hether the ultimate

sentence imposed was reasonable in light of § 3553(a).

      Yazzie does not contest the calculation of the initial guideline range. See

Kristl, 437 F.3d at 1055 (requiring the initial guideline calculation to be

methodologically sound). Thus, we turn our attention to w hether the upward

departure was warranted under the traditional guideline departure scheme. See

Calzada-M aravillas, 443 F.3d at 1305 (“a district court’s sentencing decision

necessarily includes consideration of [the] G uideline departure provisions”).




      sentencing judge and the Sentencing Commission will have reached
      the same conclusion as to the proper sentence in the particular case.
      That double determination significantly increases the likelihood that
      the sentence is a reasonable one.

Id. at 2463 (internal citations omitted).
      5
        A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101 n.1
(10th Cir. 2007) (en banc). A variance occurs “when a court enhances or detracts
from the recommended range through application of § 3553(a) factors.” Id.
      6
        It is not clear that a sentence departing from the guidelines, even if
properly done, is entitled to a presumption of reasonableness. Accordingly, w e
do not employ the presumption in this case.

                                            -4-
Under the traditional guideline departure scheme, we evaluate upward departures

by examining:

      (1) w hether the factual circumstances supporting a departure are
      permissible departure factors; (2) whether the departure factors relied
      upon by the district court remove the defendant from the applicable
      Guideline heartland thus warranting a departure; (3) w hether the record
      sufficiently supports the factual basis underlying the departure; and (4)
      whether the degree of departure is reasonable.

United States v. Walker, 284 F.3d 1169, 1171 (10th Cir. 2002). Under USSG

§4.A1.3, an upward departure may be warranted “[i]f reliable information

indicates that the defendant’s criminal history category does not adequately

reflect the seriousness of the defendant’s past criminal conduct or the likelihood

that the defendant will commit other crimes, . . .” A n upward departure is

“reasonable” in this context if the district court “precisely lay[s] out its reasoning

and analysis as to why it is selecting a particular degree of departure” sufficient

to “give us reasonable indicia that the sentence the district court pronounces is

proportional to the crime committed.” United States v. Proffit, 304 F.3d 1001,

1012 (10th Cir. 2002). “The district court accomplishes this task by using any

reasonable methodology hitched to the Sentencing Guidelines to justify the

reasonableness of the departure.” Id.

      In this case, the PSR accounted for Yazzie’s 2003 conviction for

aggravated driving while intoxicated. However, the criminal history category did

not account for four other prior convictions: a 1996 conviction for criminal



                                          -5-
damage and battery; a 2000 conviction for battery; a 2000 conviction for

speeding, no driver’s license and no insurance; and another 2000 conviction for

no driver’s license. The 1996 and 2000 battery convictions were in tribal court

and the information about them w as obtained from Navajo Department of Law

Enforcement arrest reports. Yazzie did not dispute the tribal court convictions,

but asserted a departure was not warranted because “the location of the court, the

nature of the plea or trial, and the presence or absence of an attorney is

unknown.” (Appellant’s Br., Attach. C at 1.) The district court characterized the

two battery convictions in tribal court as “crimes of violence” and deemed them

to be “serious in nature.” (R. Vol. III at 4.) Based on these findings, the district

court held Yazzie’s “criminal conduct is significantly under-represented by his

criminal history score.” (Id. at 3-4.) Relying on §4A1.3, the district court held

Yazzie’s “criminal history category [would] be more adequately represented [and]

more similar to those individuals having a criminal history category of II,”

resulting in a sentencing range of twelve to eighteen months. (Id. at 4.)

      W e find this departure to be a reasonable upward departure under USSG

§4.A1.3. USSG §4A1.3(a) allows for the consideration of “prior sentence(s) not

used in computing the criminal history category,” and specifically lists the

example of “sentences for . . . tribal offenses” as acceptable. See also USSG

§4A1.2(i) (“tribal court convictions . . . may be considered under § 4A1.3");

United States v. Yates, 22 F.3d 981, 988 (10th Cir. 1994) (allowing tribal court

                                          -6-
sentence to serve as a basis for an upward departure); United States v. Bennally,

756 F.2d 773, 779 (10th Cir. 1985) (“In sentencing an Indian the court may

consider the defendant's uncounselled tribal convictions.”).

      Additionally, the district court’s comparison of Yazzie’s criminal history to

other defendants’ history resulted in an appropriate degree of departure. Had

Yazzie been given a criminal history point for each of his two prior tribal

convictions for battery his criminal history category would have been II, resulting

in a guideline range of twelve to eighteen months. Thus, the district court’s

analysis of the degree of the upward departure was appropriately hitched to the

guidelines. See United States v. Hurlich, 348 F.3d 1219, 1222 (10th Cir. 2003)

(“The district court may use any reasonable methodology hitched to the

Sentencing Guidelines to justify the reasonableness of a departure, which includes

using extrapolation from or analogy to the Guidelines.”) (quotation marks and

citations omitted).

      Yazzie argues the district court erred by holding the earlier tribal battery

convictions were “crimes of violence” and “serious in nature” based upon

unreliable arrest reports and not court documents. Even assuming the tribal

convictions in this case could not qualify as “crimes of violence” under USSG

§4B1.2(a)(1), 7 Yazzie’s argument overlooks the fact that the district court’s

      7
       “Crime of violence” in § 4B1.2(a) is used to determine whether the
defendant is a career offender, which in turn, affects the offense level, not the
criminal history category. The term is defined as an “offense under federal, state,

                                         -7-
characterization of his prior battery convictions as “crimes of violence” was

unnecessary to the determination that an upward departure was warranted. Had

the prior tribal battery convictions been given the minimum value of one point

under §4A1.1, Yazzie still would have w arranted a criminal history category of II

independent of the nature of the prior convictions. Criminal history category

points are determined by the length of the sentence imposed, not the nature of the

offense. See §4A1.1.

      Additionally, while district courts are limited to judicial documents and are

not allowed to use police reports when determining the classification of an

offense, Shepard v. United States, 544 U.S. 13 (2005), the guidelines only require

a district court to use “reliable information” when determining whether “the

defendant’s criminal history category substantially under-represents the

seriousness of the defendant’s criminal history or the likelihood that the

defendant will commit other crimes . . . .” USSG §4A1.3. The limitation

imposed by Shepard relates to the determination of the nature of the offense

charged, not the evaluation of uncounted prior convictions when determining



or local law punishable by imprisonment for a term exceeding one year, that (1)
has as an element the use, attempted use, or threatened use of physical force
against the person of another, . . .” The Navajo Nation Code provides that a
“person comm its battery if he or she unlawfully and intentionally strikes or
applies force to the person of another.” 17 N.N.C. § 316(A). Assuming this was
the crime for which Yazzie was convicted, it is possible the characterization of
Yazzie’s tribal battery convictions would qualify as “crime[s] of violence” under
the sentencing guidelines. W e need not decide this issue, however.

                                         -8-
upward departures. Even were we to consider Shepard as analogous to this case,

Yazzie’s argument is especially unpersuasive because he did not challenge the

existence of the tribal battery convictions, but objected only to the lack of

specific details such as the locations of the court, the nature of the plea or trial, or

whether he was afforded counsel. These details are unnecessary in the absence of

an objection to the fact of conviction. “W hen a defendant does not contest . . .

criminal conduct at sentencing, a district court may rely on the facts in a

presentence report.” Yates, 22 F.3d at 989; see also Bennally, 756 F.2d at 779

(approving upward departure based on prior tribal conviction obtained where

defendant w as unrepresented).

      Nor is this case like United States v. Wyne, where we held thirty prior

convictions could not serve as a basis for an upward departure because they fell

outside of the ten and fifteen year periods established by §4A1.1, comments 1 and

2, and did not meet the standard for inclusion under §4A1.2, comment 8. 41 F.3d

1405, 1407-08 (10th Cir. 1994). Wyne was an interpretation of guideline

provisions governing the inclusion of old (greater than ten or fifteen years) prior

convictions w hen evaluating upward departures. It is, therefore, inapplicable to

this case. There is no suggestion that Yazzie’s prior tribal convictions run afoul

of the time periods laid out in §4A1.1, comments 1 and 2.

      Finally, we must consider the ultimate question of whether the sentence

imposed is reasonable in light of the factors listed in 18 U.S.C. § 3553(a). United

                                            -9-
States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006) (“[A ]fter Booker,

every sentence that a district court ultimately imposes must reflect its determination

of what is reasonable in light of the same § 3553(a) factors, w hether that sentence is

within or outside the Guidelines range.”). W e recognize some amount of overlap

with our reasonableness inquiry under the upward departure analysis. United States

v. Still, No. 05-1317, 2007 W L 2733822 *3 (10th Cir. Sept. 14, 2007)

(unpublished). 8 Under § 3553(a), we may appropriately consider the nature of the

defendant’s prior convictions. Id. at *6 (focusing on the nature of the defendant’s

prior convictions under the analysis of § 3553(a) factors).

      Given the existence and nature of Yazzie’s tw o tribal battery convictions, it

was reasonable to assign him a sentence above that reserved for first time offenders

and individuals with little chance at recidivism. See USSG §4A1.3 (“The lower

limit of the range for Criminal History Category I is set for the first offender w ith

the lowest risk of recidivism.”). It w as not unreasonable for the district court to

consider that even a slightly increased sentence would better promote respect for the

law, deter future criminal conduct, and protect the public from further crimes. 18

U.S.C. § 3553(a)(2). No other § 3553(a) factors weigh against this conclusion, nor

do any of Yazzie’s arguments undermine it. Based on Yazzie’s prior criminal

history, the nature of his criminal offenses, both past and present, and his likelihood



      8
       Unpublished opinions are not binding precedent. W e mention Still only
because of their persuasive value. See 10th Cir. R.App. P. 32.1(A).

                                          -10-
of recidivism, we conclude Yazzie’s sentence is reasonable.

AFFIRM ED.

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




                                        -11-
