                                                                                 FILED
                      UNITED STATES COURT OF APPEALS                 United States Court of Appeals
                                                                             Tenth Circuit
                            FOR THE TENTH CIRCUIT
                        _________________________________                    April 2, 2019

                                                                         Elisabeth A. Shumaker
 UNITED STATES OF AMERICA,                                                   Clerk of Court
       Plaintiff - Appellee,

 v.                                                         No. 18-6110
                                                    (D.C. No. 5:17-CR-00212-F-1)
 TYREE DEANGELO CADE, a/k/a Baby                            (W.D. Okla.)
 Monc,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, LUCERO, and MORITZ, Circuit Judges.
                   _________________________________

      Tyree Cade pleaded guilty to two counts of being a felon in possession of

ammunition. See 18 U.S.C. § 922(g)(1). Based on a total offense level of 30 and a

criminal-history category of IV, the Presentence Investigation Report (PSR)

determined that the United States Sentencing Guidelines (the Guidelines) called for a

sentence of 135 to 168 months in prison. Nevertheless, the district court imposed a




      *
        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. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
200-month prison sentence. Cade appeals, arguing his sentence is substantively

unreasonable. For the reasons discussed below, we reject this argument and affirm.

                                     Background

      The government charged Cade with two counts of being a felon in possession

of ammunition after he shot at Richard McFall on two separate occasions. Cade

ultimately pleaded guilty to both counts, and the PSR calculated a Guidelines range

of 135 to 168 months in prison. The PSR also detailed Cade’s extensive criminal

history, including a conviction for attempted first-degree burglary, two convictions

for unlawfully possessing a firearm, a pending charge for assault with a dangerous

weapon, and dismissed-but-soon-to-be-refiled charges for drug trafficking.

      Before sentencing, Cade filed a memorandum describing his traumatic

upbringing. The memorandum recited that Cade’s mother was murdered when he was

only six years old, and his aunt was killed soon thereafter. Then, when Cade was only

11, his sister died as well. Cade suffered from depression and other mental-health

disorders but never received adequate treatment for “these deeply rooted issues.”

R. vol. 1, 40. And although Cade’s grandparents worked hard to provide for Cade, his

siblings, and his cousins—all seven of whom eventually came to live with Cade’s

grandparents in their three-bedroom house—his grandparents’ “insignificant

income,” “the trauma suffered by their grandchildren,” and the “unhealthy

neighborhood” where they lived “overcame even [his grandparents’] strongest

efforts.” Id. As a result, Cade sought “support, shelter, safety, and love” from another

source: membership in a gang. Id. (emphasis omitted). Yet despite his difficult

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childhood, Cade later managed to find work as an electrician, sought to be a good

father to his children, and reconnected with his own absentee father.

      Citing these circumstances and Cade’s potential for rehabilitation, defense

counsel asked the district court to “grant leniency upon him by imposing a sentence

at the low end of the [Guidelines] range.” Id. at 51. But the government objected to

this request. It argued that the crimes of conviction belied the true severity of Cade’s

underlying violent conduct. That conduct, the government explained, involved much

more than mere possession of ammunition: Cade twice shot at McFall, and

surveillance video suggested the first shooting was an attempt to injure, if not kill,

his victim. The government also cited Cade’s blatant disrespect for law enforcement

and the criminal-justice system, his history of gun possession, his repeated acts of

violence, and his postarrest conduct. In particular, the government noted that Cade

engaged in a physical altercation with McFall after the two men were arrested; spit

on McFall after McFall testified against Cade in state court; and assaulted a

correctional officer while in custody. Thus, the government urged the district court to

impose an upward variance and sentence Cade to 240 months in prison.

      At the sentencing hearing, the district court recognized that it was “required to

consider several statutory factors” in determining the appropriate sentence, including

“the need to promote respect for the law”; “the need to afford” both specific and

general deterrence; “the need to provide correctional treatment”; and “the need to

protect the public from other crimes of this defendant.” R. vol. 3, 58–59; see also 18

U.S.C. § 3553(a) (listing factors district court must consider “in determining the

                                               3
particular sentence to be imposed”). The district court then acknowledged Cade’s

traumatic upbringing, repeatedly stating that Cade “lived a hellish life as a young

boy.” R. vol. 3, 59; see also § 3553(a)(1). But the district court also cited both Cade’s

criminal history and the violent nature of the underlying offenses, ultimately

concluding that violence appeared to be “a way of life” for Cade. R. vol. 3, 60.

      After listing each of these factors, the district court then explained why some

of them weighed less prominently in its sentencing analysis than did others. For

instance, the district court explained that it gave little weight to “the need to provide

correctional treatment” because it saw no indication Cade would “benefit[] in any

significant way from” such treatment. Id. at 59; see also § 3553(a)(2)(D). Likewise,

the court didn’t find “the need to afford specific deterrence” particularly compelling

because it determined that Cade wasn’t “really susceptible [to] any significant

deterrence by a sentence imposed by a court.” R. vol. 3, 58; see also § 3553(a)(2)(B).

And although the district court said the need to provide general deterrence weighed

“a little bit more prominent[ly]” in its analysis, it explained that “the far-and-away

predominant sentencing factor” in its decision was “incapacitation”—i.e., “the need

to protect the public from [Cade’s] other crimes.” R. vol. 3, 59; see also

§ 3553(a)(2)(B), (C).

      The district court then stated:

             My conclusion, taking into account the sentencing factors I’m
      required to take into account . . . is that a sentence above the
      [Guidelines] range but not at the maximum is . . . sufficient but not
      greater than necessary to achieve the statutory objective of sentencing.


                                                4
              It is my conclusion that a sentence of 200 months of incarceration
      is the sentence [that] is sufficient but not greater than necessary to
      achieve the statutory objectives of sentencing.

R. vol. 3, 60; see also § 3553(a) (requiring district court to “impose a sentence

sufficient, but not greater than necessary”). Cade now appeals, arguing that his 200-

month sentence is substantively unreasonable.

                                        Analysis

      “Review for substantive reasonableness focuses on ‘whether the length of the

sentence is reasonable given all the circumstances of the case in light of the factors

set forth in [§ 3553(a)].’” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.

2009) (quoting United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir.

2008)); see also United States v. Walker, 844 F.3d 1253, 1255 (10th Cir. 2017)

(explaining that review for “[s]ubstantive reasonableness focuses on the length of the

sentence and requires that sentences be neither too long nor too short”). To that end,

our review of the district court’s sentencing decision is “informed by the district

court’s consideration of” the § 3553(a) factors. Walker, 844 F.3d at 1256.

      But this doesn’t mean we may examine de novo either “the weight a district

court assigns to” these factors or “its ultimate assessment of the balance between

them.” United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). Instead, in

reviewing for substantive reasonableness, we ask only “whether the district court

abused its discretion in weighing [the] § 3553(a) factors in light of the ‘totality of the

circumstances.’” United States v. Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009)

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Notably, this deferential

                                                5
standard of review applies even where, as here, a district court imposes a sentence

that falls outside the applicable Guidelines range. See Gall, 552 U.S. at 51

(explaining that we “must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance”).

      In light of the applicable standard of review, “to win a substantive[-]

reasonableness appeal is no easy thing.” United States v. Rendon-Alamo, 621 F.3d

1307, 1310 n.** (10th Cir. 2010). “A district court abuses its discretion” only if “it

renders a judgment that is ‘arbitrary, capricious, whimsical, or manifestly

unreasonable.’” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)

(quoting United States v. Byrne, 171 F.3d 1231, 1235 (10th Cir. 1999)). Inherent in

this standard is the notion that there will often “be a range of possible [sentences] the

facts and law at issue can fairly support.” United States v. McComb, 519 F.3d 1049,

1053 (10th Cir. 2007). And “rather than pick and choose among” the possible

sentences ourselves, we must instead “defer to the district court’s judgment so long

as it falls within the realm of these rationally available choices.” Id. Thus, even if we

might “disagree[] with the [district court’s] conclusion that consideration of the

§ 3553(a) factors justified a marked deviation from the Guidelines range,” such

disagreement is insufficient “to support a holding that the district court abused its

discretion.” United States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014) (quoting

Smart, 518 F.3d at 808).

      Nevertheless, substantive-reasonableness review is no toothless formality. See

United States v. Pinson, 542 F.3d 822, 836 (10th Cir. 2008) (“[A]ppellate review

                                               6
continues to have an important role to play and must not be regarded as a rubber

stamp.”). District courts will sometimes “impose sentences that are unreasonable.”

Rita v. United States, 551 U.S. 338, 354 (2007). And we have a duty “to correct such

mistakes when they occur.” Id. Thus, we will not hesitate to deem a sentence

substantively unreasonable if “the balance struck by the district court among the

factors set out in § 3553(a) is . . . arbitrary, capricious, or manifestly unreasonable.”

United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008); see also, e.g., Walker,

844 F.3d at 1255 (holding that defendant’s sentence was substantively unreasonable

where district court “placed inadequate weight on” certain § 3553(a) factors).

       According to Cade, the district court “struck” just such a “manifestly

unreasonable” balance here. Sells, 541 F.3d at 1239. Specifically, Cade asserts that

the district court placed too much weight on the need “to protect the public from [his]

further crimes.” § 3553(a)(2)(C). And he insists the district court simultaneously

placed too little weight on his “history and characteristics,” § 3553(a)(1)—including

his “traumatic upbringing,” “his lack of . . . substance[-]abuse issue[s], his ability to

maintain a good job, and his close ties with his family despite his criminal behavior,”

Aplt. Br. 12.

       We cannot agree. As an initial matter, it’s clear that the district court fully

appreciated Cade’s “history and characteristics.” § 3553(a)(1). For instance, the court

described Cade’s childhood as “hellish” no fewer than four times. R. vol. 3, 59.

Likewise, the district court cited Cade’s employment history and noted that Cade

“had the ability to make good money.” Id. at 53. But contrary to Cade’s arguments,

                                                7
these factors didn’t necessarily weigh in favor of a within-Guidelines sentence. As

the district court explained, the fact that Cade “had the ability to make a good living

and be a good provider” via legitimate channels left the district court “scratching [its]

head”: what “excuse” did Cade have for turning to crime instead? Id. at 53–54.

Similarly, after acknowledging Cade’s “hellish life as a young boy,” the

circumstances of the underlying offenses, and Cade’s criminal history, the district

court ultimately concluded that “violence is a way of life” for Cade. Id. at 60. Thus,

factors like Cade’s ability to make a good living and his difficult childhood “cut both

ways.” United States v. Taylor, 907 F.3d 1046, 1048, 1052 (7th Cir. 2018) (affirming

defendants’ within-Guidelines sentences where district court “evaluated the history

and characteristics of [defendants], which [district court] thought cut both ways—

[defendants] faced traumatic upbringings and likely experienced mental-health

problems, but they, unlike many who endure similar suffering, made the decision to

turn to violent crime”).

      Under these circumstances, we cannot say the district court abused its

discretion in concluding that the violent nature of the instant crimes, coupled with

Cade’s predilection for violent behavior—which persisted even after his arrest in this

case—rendered paramount “the need to protect the public from other crimes of this

defendant.” R. vol. 3, 59; cf. Lente, 759 F.3d at 1173 (noting that although evidence

of defendant’s difficult childhood could serve as mitigating factor, “the mitigating

strength” of such evidence was “severely undercut by [defendant’s] post[]conviction

conduct” where defendant’s “substance abuse continued during her incarceration”;

                                               8
explaining that “[e]vidence of childhood trauma, psychological issues, or youthful

indiscretion is most powerful when accompanied by signs of recovery”).

       In particular, Cade has displayed both an obvious willingness to inflict

violence upon his intended victims as well as a disregard for the safety of any

unintended victims who might be caught in the literal or figurative crossfire. For

instance, the underlying offenses each arose from Cade’s act of firing a gun in a

residential neighborhood. And when Cade and McFall engaged in a physical

altercation after both men were arrested, at least one correctional officer had to

intervene in order to separate the two. Accordingly, the district court was justified in

placing great weight “on the need to protect the public from other crimes of this

defendant.” R. vol. 3, 59; cf. United States v. Dace, 842 F.3d 1067, 1070 (8th Cir.

2016) (affirming upward variance where district court noted that underlying offense

conduct “pose[d] a substantial threat to innocent bystanders” and cited “the need to

protect the public”).

       In short, we cannot say “the balance struck by the district court among the

factors set out in § 3553(a) [was] . . . arbitrary, capricious, or manifestly

unreasonable.” Sells, 541 F.3d at 1239. Nor can we say the district court’s reasons for

imposing a 200-month prison sentence, rather than a sentence that fell within the

Guidelines range of 135 to 168 months in prison, are “[in]sufficiently compelling to

support the degree of the variance.” Gall, 552 U.S. at 50. Accordingly, we hold that

Cade’s sentence is substantively reasonable.



                                                9
                                     Conclusion

      Because Cade fails to demonstrate the district court’s sentencing decision falls

outside the realm of rationally available choices, we affirm.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




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