                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 3, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-6074
          v.                                           (W.D. Oklahoma)
 DERRICK JERRELL JONES,                         (D.C. No. 5:10-CR-00061-F-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, 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); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Derrick Jerrell Jones pled guilty to one count of

possession of crack cocaine with intent to distribute and one count of being a

felon in possession of two semi-automatic handguns. At sentencing, the district


      *
        This order and judgment is not binding precedent except under the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.
court determined to vary upward from the advisory sentencing guidelines range

under the United States Sentencing Commission, Guidelines Manual (“USSG”),

and sentenced Mr. Jones to 120 months’ imprisonment. Mr. Jones appeals his

sentence, arguing that the 120-month term was imposed in a procedurally

unreasonable manner and is substantively unreasonable. We affirm.



                                  BACKGROUND

         In August 2007, the Federal Bureau of Investigation (“FBI”) began an

investigation into a large gang-related drug conspiracy. Law enforcement

personnel discovered that Mr. Jones was a part of the conspiracy. After

conducting surveillance and investigating Mr. Jones, officers searched his home,

where they found 133.9 grams of crack cocaine, twenty-six grams of marijuana,

three sets of digital scales with drug residue, two semi-automatic handguns and

several rounds of ammunition. As it turned out, Mr. Jones was on probation for a

prior drug conviction and an attempted home-burglary conviction when he was

participating in the instant conspiracy. He also admitted, as stated in his

presentence report (“PSR”), that he had been involved in gang activity for many

years.

         As indicated above, pursuant to a plea agreement Mr. Jones pled guilty to

possession of crack cocaine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1), and being a felon in possession of firearms, in violation of 18 U.S.C.

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§ 922(g)(1). In preparation for sentencing, the United States Probation Office’s

PSR calculated that the applicable advisory guidelines sentencing range was 108

to 135 months, based upon the offenses of conviction and a criminal history

category of III. At sentencing, the district court ultimately concluded that the

applicable advisory guideline range was 87 to 108 months. It also rejected

Mr. Jones’ motion for a downward departure. Instead, the court stated as follows:

             I certainly do recognize that I have the discretion to depart
      downward and I don’t intend to do so. As a matter of fact, I intend
      to vary upward.
             The guideline range is 87 to 108 months. I find that that
      guideline range is not sufficient to . . . accomplish the statutory
      objectives of sentencing. In this case, the predominant statutory
      objectives of sentencing are incapacitation, deterrence, and just
      punishment.
             Mr. Jones, your gang activity is more recent than most of the
      defendants that I have before me facing similar charges and who
      have been convicted of similar crimes. You have a previous
      conviction for possession of crack with intent to distribute. For that
      reason, it is apparent that you had a previous opportunity to
      reconsider whether you ought to spend your time and effort
      distributing this horrible substance.
             You have a previous burglary conviction that came along, as I
      recall, after your . . . previous crack cocaine distribution conviction.
      All of which causes me to conclude that a sentence within the
      guideline range really would not in this instance–and this is unusual
      for me–but really would not in this instance comport with the
      statutory objectives of sentencing.
             This is not a major factor, but I couldn’t help but notice that
      you apologized to your family and the Court but did not make one
      reference to the victims who are–whose lives have been affected by
      your distribution of this horrible substance.
             Accordingly, the top of your guideline range is 108 months.
      I’m going to impose a sentence of 120 months. Because I think
      that’s what is required to keep you from committing further offenses
      of this kind or any other kind, in order to deter others from following

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      the path you have followed, and to provide just punishment for your
      offense.

Tr. of Sentencing at 22-24, R. Vol. 3 at 33-35.

      Defense counsel then registered an objection to the upward variance on two

stated grounds: “no notice in the presentence report that an upward departure was

warranted”; and that the “departure . . . was not supported by the available

evidence.” Id. at 26-27. The district court implicitly dismissed the objection,

after explaining that no prior notice was required when the court varies from an

advisory guideline range, as opposed to departing from such a range. 1 See

Irizarry v. United States, 553 U.S. 708, 714-15 (2008).

      This appeal followed, in which Mr. Jones argues that the district court

“committed significant procedural error by failing to adequately explain the

upward variance from the advisory guideline range and by relying on insufficient

evidence to support the upward variance.” Br. of Appellant at 9. He also

challenges the sentence as substantively unreasonable.




      1
        Departures and variances are two different things. See United States v.
Sells, 541 F.3d 1227, 1237 n.2 (10 th Cir. 2008) (explaining that a departure occurs
when a court sentences a defendant above or below the recommended guideline
range under Chapter 4 or 5 of the sentencing guidelines, whereas a variance
occurs when a court “enhances or detracts from the recommended range through
application of § 3553(a) factors”) (further quotation omitted).

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                                   DISCUSSION

      We review the reasonableness of sentencing decisions, “whether inside, just

outside, or significantly outside the Guidelines range under a deferential abuse-

of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); United

States v. Huckins, 529 F.3d 1312, 1317 (10 th Cir. 2008). A sentencing court

abuses its discretion when its decision is “arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146

(10 th Cir. 2008). Reasonableness review includes a procedural and a substantive

analysis.

      I. Procedural Reasonableness

      “Procedural reasonableness addresses whether the district court incorrectly

calculated or failed to calculate the Guidelines sentence, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous

facts, or failed to adequately explain the sentence.” Gall, 552 U.S. at 51.

      Mr. Jones argues the district court committed procedural error because it

failed to adequately explain its upward variance from the advisory guideline

range. More specifically, he argues that the district court’s finding that he was

involved in “recent gang activity” is not supported by the record. Mr. Jones

further alleges that the district court’s reliance on his previous drug conviction to

support its upward variance means that any defendant who re-offends is unfairly

susceptible to an increased sentence.

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      The government contends that we must consider the propriety of the court’s

variance under the plain error standard of review, because Mr. Jones failed to

object to the variance at sentencing. Whether we apply a plain error standard of

review or not, Mr. Jones’ variance argument fails. 2 The district court gave

detailed reasons, grounded in the § 3553(a) factors, why it believed an upward

variance was necessary. It specifically stated that Mr. Jones’ gang-related

activity and extensive prior criminal history, combined with the need to deter

Mr. Jones and others, the need to protect the public, and the need to punish

Mr. Jones properly for his conduct, all combined to suggest an upward variance.

      As indicated, Mr. Jones also argues that the district court’s reference to his

recent gang-related activity is not supported by the evidence. Mr. Jones’ PSR

expressly states: “At 16 years of age [Mr. Jones] moved out of his mother’s home

and ‘lived on the street.’ According to [Mr. Jones], he also was in a gang, the

Grape Street Crips, from age 12 to 20. The gang affiliation was confirmed by the

Oklahoma City Gang Task Force.” PSR at ¶ 68, R. Vol. 2 at 16. No objection

was made to that factual finding, which the district court expressly adopted. We


      2
       The confusion regarding the applicability of the plain error standard of
review stems from the fact that Mr. Jones objected to the 120-month sentence at
the sentencing hearing, although he viewed the departure from the advisory
sentencing guideline range as a “departure,” rather than a “variance.” Thus, it is
not completely clear whether we should conclude that Mr. Jones failed to raise, at
the time of sentencing, the issue of the departure from the guidelines range. We
conclude that we need resolve this issue, because Mr. Jones’s argument
concerning the propriety of the sentence fails under any standard.

                                         -6-
cannot say that the district court clearly erred in determining that Mr. Jones’

gang-related activity was extensive and sufficiently recent that it caused the court

concern.

      Mr. Jones further argues that the court could not vary upward based upon

his prior drug conviction, and therefore his purported failure to rehabilitate,

because the Guidelines already account for that in his criminal history score. As

the government points out, Mr. Jones misreads our case law. We have

acknowledged that “district courts are now allowed to contextually evaluate each

§ 3553(a) factor, including those factors the relevant guideline(s) already purport

to take into account.” United States v. Smart, 518 F.3d 800, 808 (10 th Cir. 2008).

In sum, the district court thoroughly and clearly explained its reasons for

imposing an upward variant sentence. Accordingly, we conclude that the

sentence imposed is procedurally reasonable.



      II. Substantive Reasonableness

      As indicated above, Mr. Jones also challenges the substantive

reasonableness of his 120-month sentence. “[S]ubstantive reasonableness review

broadly looks to whether the district court abused its discretion in weighing

permissible § 3553(a) factors in light of the totality of the circumstances.” United

States v. Sayad, 589 F.3d 1110, 1118 (10 th Cir. 2009) (further quotation omitted).

When considering a variance, we must “consider the extent of the deviation and

                                          -7-
ensure that the justification is sufficiently compelling to support the degree of the

variance.” Gall, 552 U.S. at 50. Further, we use a “highly deferential standard of

review in assessing the substantive reasonableness of a sentence.” Sayad, 589

F.3d at 1118.

      In this case, the district court supported its selected sentence by reference

to proper § 3553(a) factors, including Mr. Jones’ dangerous and lengthy criminal

history and a long history of gang affiliation, his failure to rehabilitate, and his

lack of remorse for those to whom he sold drugs. The sentence imposed was

substantively reasonable.



                                   CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence in this case.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




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