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

                            FOR THE TENTH CIRCUIT                             July 31, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-5124
                                                   (D.C. No. 4:16-CR-00096-JED-1)
 TIMOTHY PAUL HAMILTON, JR.,                                 (N.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK, and EID, Circuit Judges.
                 _________________________________

      Appellant Timothy Hamilton, along with his parents, owned and operated two

companies used to defraud investors. In all, his misrepresentations persuaded 18

individuals to invest almost $900,000 in the businesses. Although some of the

money was returned, most of it was used for personal benefit, including supporting

Hamilton’s aspirations to become a country music star. Hamilton pleaded guilty to

an information charging him with wire fraud in violation of 18 U.S.C. § 1343. The

district judge sentenced Hamilton to the statutory maximum, above his recommended

Guidelines range. He appeals the sentence, asserting the district court erred by



      *
         This order and judgment is not binding precedent, except under the doctrines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.
failing to provide notice of its intent to depart upward as required by Fed. R. Crim. P.

32(h), rendering his sentence procedurally and substantively unreasonable. We

conclude the sentence was reasonable because the district court did not depart, but

rather varied upward. Therefore, no notice was required.

                                            I.

      As part of his plea agreement and allocution, Hamilton acknowledged the

court had discretion to impose any sentence up to the federal maximum, which in this

case was five years. The presentence investigation report recommended a Guideline

range of 37 to 46 months’ imprisonment, but Hamilton filed a motion for downward

variance requesting a probation sentence without imprisonment. The Government

opposed the motion, arguing instead for a sentence near the upper end of the

recommended Guidelines range.

      In Hamilton’s Petition to Enter Plea of Guilty, he stated that although he hoped

for lenience, he was “prepared to accept any punishment permitted by law which the

Court [saw] fit to impose.” Further, the accompanying certificate made clear

Hamilton’s counsel had advised him of the court’s sentencing discretion and that the

court could “depart from the advisory [G]uideline range or impose a non-[G]uideline

sentence.” During Hamilton’s change of plea hearing, the magistrate judge made

sure Hamilton understood “that regardless of the [G]uidelines range, [the district

court] may sentence you to imprisonment for up to the maximum time allowed by

law.” Hamilton also stated no sentence had been promised to him and that he knew

the district court could impose a sentence more severe than he was expecting.

                                           2
      At Hamilton’s sentencing the Government produced several victims to testify,

many of whom noted Hamilton had used religion as a way to gain their trust.

Hamilton apologized to the victims, admitted wrongdoing, and asked the court for

mercy. The court discussed each of the reasons Hamilton presented for a downward

variance, rejecting each in turn because “there are no factors present that separate this

defendant from the mine-run of similarly situated defendants to a degree that

warrants a downward variance.” The district court then found a sentence greater than

the recommended Guidelines sentence was warranted:

             On the contrary, the court finds that a sentence within or below
      the advisory guideline range is insufficient based upon the
      aforementioned factors and a greater sentence is warranted. Therefore,
      the defendant’s motion for nonguideline sentence is denied, and the
      court will vary upward to a total offense level of 24. Combined with the
      defendant’s criminal history category of I, the resulting variance
      guideline range is 51 to 60 months.
             The court recognizes that the United States Sentencing
      Guidelines are advisory and not mandatory, but has considered the
      sentencing guidelines along with all of the factors set forth in Title 18 of
      the United States Code, Section 3553(a) to reach an appropriate and
      reasonable sentence in this case.
             In determining a sentence, the court has considered the nature of
      the offense and the defendant’s lack of criminal history and his personal
      characteristics. This case involved the defendant conspiring with his
      parents to defraud 18 individuals of a combined total of 868 thousand
      dollars—$868,300. The defendant is 32 years old with no prior criminal
      convictions and no history of substance abuse. Based on these factors, a
      sentence within the advisory guideline range will serve as an adequate
      deterrent to this defendant as well as others, promote respect for the
      law, provide just punishment for the offense, and provide protection for
      the public. . . . Restitution is mandatory.

Aplt. App. 158–60.




                                           3
       In the sentencing documents, the district court judge checked “variance” on the

minutes sheet, and in its Statement of Reasons under Section IV, “Court

Determination for a Variance,” the court checked “extreme conduct” and “victim

impact” as reasons supporting “[t]he nature and circumstances of the offense

pursuant to 18 U.S.C. § 3553(a)(1).” In the same subsection, under “[t]he history and

characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1),” the court

checked “Remorse / Lack of Remorse.” The space for stating “the basis for a

variance” referred to Section VIII of the form, where the district court reiterated its

explanation of the sentence on the record at the hearing.

       Hamilton now appeals his sentence, arguing the district court erred by failing

to give notice of its intent to give a sentence greater than the recommended Guideline

range, and as a result, his sentence is procedurally and substantively unreasonable.

                                            II.

       Federal Rule of Criminal Procedure 32(h) requires courts “give the parties

reasonable notice that it is contemplating [] a departure,” and “specify any ground on

which” the departure might be based. Fed. R. Crim. P. 32(h). Hamilton argues the

district court erred by failing to provide the required notice of its intent to depart

upward, but this argument was not preserved for appeal. See Aplt. Br. at 13

(explaining the failure of defense counsel to object to lack of notice at sentencing

was “[un]imaginable” and “clearly defective”). Where a defendant fails to object to a

lack of notice under Fed. R. Crim. P. 32(h), this Court reviews for plain error. United

States v. Atencio, 476 F.3d 1099, 1104–05 (10th Cir. 2007) (en banc), overruled in

                                             4
part on other grounds by Irizarry v. United States, 553 U.S. 708 (2008). To

demonstrate plain error, Hamilton “must show: ‘(1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.’” United States v. Bustamante-Conchas,

850 F.3d 1130, 1137 (10th Cir. 2017) (en banc) (quoting United States v. Mike, 632

F.3d 686, 691–92 (10th Cir. 2011)).

                                            A.

       Hamilton’s argument fails at the first step of plain error review. We conclude

there was no error because the district court varied, rather than departed, upward, and

the Supreme Court has previously held that Rule 32(h) does not apply to variances.

See Irizarry, 553 U.S. at 716 (“The fact that Rule 32(h) remains in effect today does

not justify extending its protections to variances.”).

       Although there is some overlap, variances and departures are distinct actions

of district courts. See United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1220 n.4

(10th Cir. 2008). “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. Sells, 541 F.3d 1227, 1237 n.2

(10th Cir. 2008) (quoting Atencio, 479 F.3d at 1101 n.1). “A variance occurs ‘[w]hen

a court enhances or detracts from the recommended range through application of

§ 3553(a) factors.’” Id.

       Both the district judge’s statements at the sentencing hearing and the written

record produced at sentencing clearly reflect the district court’s intent to vary, rather

                                             5
than depart. First, the district court judge explicitly stated on the record that “the

court will vary upward,” and then recalculated “the resulting variance [G]uideline

range.” Aplt. App. at 158 (emphases added).

       Second, in addition to labeling Hamilton’s actions a “variance,” the district

court specifically noted it “considered . . . all of the factors set forth in Title 18 of the

United States Code, Section 3553(a) to reach an appropriate and reasonable

sentence.” Aplt. App. at 158–59. Consideration of § 3553(a) factors is the hallmark

of a variance. See Sells, 541 F.3d at 1237 n.2. Here, the judge weighed the § 3553(a)

factors on the record: discussing “the nature of the offense and the defendant’s lack

of criminal history and his personal characteristics,” Aplt. App. at 159 (referencing

§ 3553(a)(1)); noting the sentence would “serve as an adequate deterrent to this

defendant as well as others, promote respect for the law, provide just punishment for

the offense, and provide protection for the public,” id. (referencing § 3553(a)(2)(A)–

(C)); explaining he considered “[s]entencing disparities among defendants” in

crafting “an appropriate sentence in this case,” id. (referencing § 3553(a)(6)); and

ordering mandatory restitution, id. (referencing § 3553(a)(7)).

       Third, and finally, the written record produced from sentencing reflects the

district court’s intent to vary, rather than depart. On the court’s minute sheet from

sentencing, the word “variance” was checked, but “departure” was not. Aple. Supp.

App. at 54. In the court’s Statement of Reasons, the judge checked the box for

imposing “a sentence otherwise outside the sentencing [G]uideline system (i.e., a

variance).” That box directed him to complete “Section VI. Court Determination for

                                              6
a Variance,” where the judge checked boxes under “18 U.S.C. § 3553(a) and other

reason(s) for a variance.” If the district court had departed, it would have filled out

“Section V. Departures.”

      Nowhere in the record is there any reference to Chapters Four and Five of the

Guidelines, which this court requires for a departure. See Sells, 541 F.3d at 1237 n.2.

We decline to accept Hamilton’s argument that the language “mine-run of similarly

situated defendants” is an oblique reference to Chapters Four and Five of the

Guidelines and are magic words that render the action a departure. See, e.g.,

Kimbrough v. United States, 552 U.S. 85, 109 (2007) (“[W]hile the Guidelines are no

longer binding, closer review may be in order when the sentencing judge varies . . .

even in a mine-run case.”). Hamilton provides no support for the proposition that the

district court’s recalculating a new Guidelines range necessarily makes the action a

departure, rather than a variance. Rather, in our view, the district court’s statements

emphasized the advisory nature of the Guidelines, applied § 3553(a) factors, and

noted the sentence fell within the resulting range after the court varied upward.

      Given the district court’s broad discretion at sentencing, coupled with the

multitude of direct references to § 3553(a) factors in crafting the sentence, we

conclude the district court varied upward, which renders Rule 32(h) inapplicable, and

therefore, no notice was required. See Irizarry, 553 U.S. at 714–16.

                                           B.

      Sentences are reviewed for reasonableness, which encompasses a two-part

inquiry into both procedural and substantive reasonableness. United States v. Verdin-

                                            7
Garcia, 516 F.3d 884, 895 (10th Cir. 2008). Procedural reasonableness review turns

on whether the district court committed any error in calculating or explaining the

sentence, including “failing to calculate . . . the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors . . . or failing to

adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51

(2007). A sentence is substantively unreasonable when “the length of the sentence is

[un]reasonable given all the circumstances of the case in light of the factors set forth

in 18 U.S.C. § 3553(a).” Alapizco-Valenzuela, 546 F.3d at 1215 (quotation marks

and citation omitted). “The fact that the appellate court 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.

      Hamilton advances three arguments in favor of procedural error at sentencing:

(1) the district court failed to give notice of its intent to depart upward as required by

Rule 32(h); (2) the district court relied on improper factors in fashioning the

sentence;1 and (3) the district court failed to explain the sentence adequately. As

Hamilton did not preserve these arguments below, we review them for plain error and

again hold Hamilton’s claims fail at the first prong.




      1
         Hamilton also asserts the district court relied on improper factors in violation
of this Circuit’s four-prong test for upward departures in United States v. Robertson,
568 F.3d 1203, 1211 (10th Cir. 2009). Aplt. Br. at 20–29. We do not evaluate this
claim because Robertson is inapplicable, given our determination the district court
varied upward.
                                            8
      Hamilton’s first argument was addressed and rejected above. Because we

conclude the district court varied upwards, no notice was required and no procedural

error committed. Hamilton’s second and third arguments also fail, because we

conclude the district court did not rely on improper factors and adequately explained

its sentence. Hamilton pleaded guilty to the requisite criminal conduct; the facts

related to his crimes are admitted. Aplt. App. at 24–41 (plea agreement); 42–45

(admitted facts). The district court properly considered those facts in explaining “the

nature of the offense” and Hamilton’s characteristics. See, e.g., United States v.

Sayad, 589 F.3d 1110, 1118 n.4 (10th Cir. 2009) (“District courts are granted wide

discretion in choosing which factors to rely on in determining whether a variance is

justified under § 3553(a), and may choose to rely on factors disfavored by the

Sentencing Commission.” (citations omitted)). Further, the district court explained

its sentencing decision at length and in great detail; we cannot agree that its

explanation did not “identify legitimate reasons for the sentence imposed.” We hold

the district court’s findings and conclusions were well-within its discretion,

adequately explained, and do not constitute error.

      Finally, we hold the district court’s sentencing Hamilton to the statutory

maximum was not substantively unreasonable “given all the circumstances of the

case in light of the factors set forth in 18 U.S.C. § 3553(a).” Alapizco-Valenzuela,

546 F.3d at 1214 (quotation marks and citation omitted). Even if we were to disagree

with the district court’s decision, “[t]he fact that the appellate court might reasonably



                                            9
have concluded that a different sentence was appropriate is insufficient to justify

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

      In sum, Hamilton cannot show the district court committed plain error. The

district court varied upward, rendering Fed. R. Crim. P. 32(h) inapplicable, so the

district court was not required to give notice, and accordingly, committed no error.

The district court did not rely on improper factors or fail to adequately explain its

sentence; and ultimately, the sentence imposed was within the wide discretion of the

district court. We AFFIRM.


                                             Entered for the Court


                                             Allison H. Eid
                                             Circuit Judge




                                           10
