                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 11, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-3208
          v.                                               D. Kansas
 ANH NGOC DANG,                               (D.C. No. 6:11-CR-10120-EFM-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

I.    Introduction

      Appellant Anh Ngoc Dang pleaded guilty to one count of illegally

producing identification documents, in violation of 18 U.S.C. § 1028(a)(1) and


      *
        This order and judgment is not binding precedent except under the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.
(2). The district court sentenced him to twenty-four months’ imprisonment, eight

months higher than the top of the advisory guidelines range. Dang now appeals

the sentence imposed by the district court, arguing it is substantively

unreasonable based on consideration of the factors set forth in 18 U.S.C.

§ 3553(a). Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we affirm Dang’s sentence.

II.   Background

      Dang and his brother were named in a multi-count indictment charging

them with unlawful acts related to the production of a Kansas drivers license and

a United States passport. Dang entered into a written plea agreement with the

Government which contained the following factual basis for his guilty plea to one

count of illegally producing an identification document:

      On March 22, 2007, defendant Anh Ngoc Dang knowingly,
      intentionally and without lawful authority aided and abetted the
      production of a State of Kansas drivers license by allowing his
      brother, Thanh Ngoc Dang, to use defendant Anh Ngoc Dang’s name
      and date of birth in producing the drivers license. The drivers
      license was produced in and affecting interstate commerce because it
      was produced with materials manufactured outside the state of
      Kansas, and the permanent drivers license was manufactured in
      another state, then mailed to Kansas.

The district court accepted Dang’s guilty plea and the United States Probation

Office prepared a Presentence Investigation Report (“PSR”). The PSR calculated

a base offense level of six and then increased it six levels pursuant to USSG

§ 2B1.1(b)(11)(C)(i) because the offense involved the “use of a means of

                                         -2-
identification unlawfully to produce or obtain any other means of identification.”

The PSR also applied a two-level reduction for acceptance of responsibility

pursuant to USSG § 3E1.1(a), resulting in a total offense level of ten. The PSR

assigned four criminal history points which corresponded to a criminal history

category of III. The offense level combined with the criminal history category

resulted in an advisory guidelines sentencing range of ten to sixteen months’

imprisonment. Several days before the sentencing hearing, the district court

advised the parties it was considering varying upward from the advisory

guidelines range based on Dang’s “lengthy and persistent conduct of making false

representations to authorities.”

      At the hearing, neither party objected to the calculation of the advisory

guidelines range. The district court then announced the recommended guideline

sentence was “potentially inadequate for the nature and characteristics of the

defendant,” Dang’s counsel responded to the court and also asked for a downward

variance from the advisory guidelines range. After considering Dang’s arguments

and the § 3553(a) factors, the court determined that an upward variance from the

guidelines was appropriate. Dang received a sentence of twenty-four months’

imprisonment, eight months above the top of the advisory guidelines range.




                                        -3-
III.   Discussion

       Dang argues his above-guidelines sentence is substantively unreasonable.

We review this challenge under an abuse-of-discretion standard. United States v.

Bullcoming, 579 F.3d 1200, 1206-07 (10th Cir. 2009).

       Dang makes two primary challenges to the sentence imposed by the district

court. He first asserts the district court’s finding that he is a dishonest person

does not justify an upward variance. “[A] district court has broad discretion to

consider particular facts in fashioning a sentence under 18 U.S.C. § 3553(a).” Id.

at 1207 (quotation omitted). A defendant’s character is one of the factors a

district court may consider. See United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1222 (10th Cir. 2008). The district court was unequivocal in its finding

that Dang was not credible, stating, “I have no confidence that this defendant will

tell us anything that’s correct, now or in the future.” The court supported this

finding with a lengthy and comprehensive discussion of the false, misleading, and

contradictory statements Dang made to law enforcement during the investigation

of the offense conduct and again during the preparation of the PSR. The court

also detailed the litany of false statements Dang made about his immigration

status, his involvement in civil lawsuits, and his employment history, among other

things. The court’s discussion provides ample support for the conclusion Dang’s

character, particularly his lack of respect for the rule of law, merits a substantial

upward variance from the advisory guidelines range.

                                          -4-
      Dang also argues the district court erred by failing to consider the disparity

between his sentence and the sentence received by his brother. Dang’s argument

fails because a district court is not required to consider sentencing disparities

between codefendants. United States v. Rojas, 531 F.3d 1203, 1210 (10th Cir.

2008) (“[D]isparity among codefendants is not a consideration required by

§ 3553(a).”). The purpose of the Guidelines is to “eliminate disparities among

sentences nationwide.” United States v. Zapata, 546 F.3d 1179, 1194 (10th Cir.

2008). Furthermore, Dang has not identified any basis upon which this court

could conclude the disparate sentences are unwarranted. See id. (“[D]isparate

sentences are allowed where the disparity is explicable by the facts on the

record.” (quotation omitted)).

IV.   Conclusion

      The district court did not abuse its discretion when it imposed a twenty-

four month sentence. Accordingly, we affirm Dang’s sentence.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




                                          -5-
