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

                              FOR THE TENTH CIRCUIT                      March 26, 2020
                          _________________________________
                                                                      Christopher M. Wolpert
                                                                          Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                    No. 19-6152
                                                  (D.C. No. 5:19-CR-00125-R-1)
    MARK ALBERT BARBER,                                   (W.D. Okla.)

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT *
                          _________________________________

Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges. **
                 _________________________________

         On May 20, 2019, Defendant pleaded guilty to failure to register as a sex

offender in violation of 18 U.S.C. § 2250. Thereafter, the United States Probation

Office prepared a Presentence Investigation Report (“PSR”). Based on a total offense

level of 13 and a criminal history category of I, the PSR calculated an advisory

guideline range of 12 to 18 months to be served in prison or split between prison and

community confinement. While Defendant argued for a below-guideline sentence, the


*
 This order and judgment is not binding precedent, except under the doctrines of law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 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.
district court rejected Defendant’s request for leniency and sentenced Defendant at the

low-end of the guideline range to 12 months’ imprisonment. Defendant appeals,

arguing his sentence is substantively unreasonable. Our jurisdiction arises under 28

U.S.C. § 1291, and we affirm.

       We review the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard. United States v. Gantt, 679 F.3d 1240, 1249 (10th Cir.

2012). The district court abuses its discretion if it imposes a sentence that is “arbitrary,

capricious, whimsical, or manifestly unreasonable.”          Id.   A sentence within the

properly calculated guidelines is entitled to a rebuttable presumption of

reasonableness. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). A

defendant may rebut this presumption by demonstrating that the sentence is

unreasonable when viewed against the factors described in § 3553(a). Id. Although

Defendant acknowledges his 12-month sentence falls within the properly calculated

guideline range, Defendant nonetheless contends the district court erred by imposing a

sentence that is greater than necessary to comply with the purposes of sentencing.

       In support, Defendant first argues failure to register as a sex offender is a

regulatory crime with “no victim, no injury, no loss, and no malicious intention.”

Appellant Br. at 9. This argument “boils down to a disagreement with Congress” over

the seriousness of failure to register. United States v. Guerrero-Carreon, 566 F. App’x

643, 645 (10th Cir. 2014) (unpublished). A sentence is not rendered unreasonable,

however, merely because a district court refuses “‘to deviate from the advisory

guideline range’ based on disagreements with the policies underlying a particular

                                             2
Guideline provision.” United States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007)

(quoting United States v. McCullough, 457 F.3d 1150, 1171 (10th Cir. 2006)).

Therefore, Defendant’s first argument in support of a downward variance is without

merit.

         Next, Defendant argues he has already been “duly punished” for his underlying

sex offense and has since “demonstrated his fundamentally good character and

intentions.” Appellant Br. at 9–10. Defendant therefore argues a downward variance

was warranted based on his personal history and characteristics. Defendant does not

show the district court abused its discretion in declining to vary downward, however,

and it is evident the district court considered Defendant’s personal history and

characteristics in fashioning the appropriate sentence. Specifically, the district court

stated a guideline sentence was appropriate “because of the egregious nature of the

underlying conduct” but declined to impose a high-end guideline sentence due to the

“passage of time” since the underlying sex offense. ROA Vol. 3 at 15

         The district court was well within its discretion to consider the egregiousness of

Defendant’s underlying sex offense. Because Defendant’s underlying sex offense

occurred in the United Kingdom, it was not reflected in Defendant’s criminal history

score. The Sentencing Guidelines authorize an upward departure in this very situation,

see U.S.S.G. § 4A1.3, cmt. (n.2), because, had Defendant committed his underlying

sex offense in the United States, his guideline range would have been 18 to 24 months’

imprisonment. ROA Vol. 2 at 19. While the district court declined to depart upward

as permitted by the Guidelines, the district court did not abuse its discretion in

                                             3
considering Defendant’s underlying sex offense when crafting an appropriate sentence.

See United States v. Pinson, 542 F.3d 822, 836 (10th Cir. 2008) (permitting

consideration of prior offenses in determining an appropriate sentence). Moreover, the

district court acknowledged the passage of time since the underlying offense and

afforded Defendant some benefit by sentencing at the low-end of the guideline range.

Ultimately, the district court was within its discretion in considering and weighing

Defendant’s personal history and characteristics.

      Finally, Defendant argues the district court “failed to articulate how any of the

sentencing goals justified, much less required, additional incarceration.” Appellant Br.

at 12. When the district court imposes a guideline sentence of less than 24 months, the

court’s duty to explain the sentence is not an onerous one. See United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007); 18 U.S.C. § 3553(c). Rather, the

district court need only give a “general statement noting the appropriate guideline

range and how it was calculated.” Ruiz-Terrazas, 477 F.3d at 1202 (quoting United

States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006)). In this case, the district

court “considered the sentencing guidelines” and “the sentencing factors set forth in

18 U.S. Code, 3553” before concluding a guideline sentence at the low-end of the

guideline range was appropriate. ROA Vol. 3 at 15–16. This explanation is sufficient

to meet the requirements of 18 U.S.C. § 3553(c).

      Therefore, we hold the district court did not abuse its discretion in sentencing

Defendant at the low-end of the guideline range, and for the reasons provided herein,



                                           4
Defendant’s sentence is AFFIRMED.




                                    Entered for the Court


                                    Bobby R. Baldock
                                    Circuit Judge




                                    5
