                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 27, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-4175
                                               (D.C. No. 1:10-CR-00022-DB-1)
    ANTHONY PASCAL MOUILLE,                               (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.



         In July 2010, Anthony Mouille pleaded guilty to one count of identity fraud

and one count of aggravated identity theft arising out of his possession of stolen

and counterfeit checks and identification documents that he admittedly intended

to use to commit bank fraud, among other things. The district court imposed a

sentence of eighteen months on count one, and a statutorily-mandated consecutive



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
sentence of twenty-four months on count two. Mr. Mouille now appeals, arguing

that his sentence was both procedurally and substantively unreasonable.

         Mr. Mouille contends that his sentence was procedurally unreasonable

because the district court failed to expressly acknowledge that it understood the

U.S. Sentencing Guidelines are not mandatory. “Ordinarily, we review a district

court’s sentencing procedure for abuse of discretion, evaluating factual findings

for clear error and legal determinations de novo.” United States v. Mendoza,

543 F.3d 1186, 1190 (10th Cir. 2008). But because Mr. Mouille did not raise this

objection after the district court imposed his sentence, we will review it only for

plain error. See id.; United States v. Romero, 491 F.3d 1173, 1178 (10th Cir.

2007).

         Mr. Mouille bears the heavy burden of establishing plain error by showing

that the district court (1) committed error, (2) that was plain, (3) that affected his

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

reputation of judicial proceedings. Romero, 491 F.3d at 1178. He does not even

attempt to make a showing on the fourth prong, and his showing on the other

three prongs is wholly inadequate.

         Mr. Mouille is correct that the district court did not “state on the record, or

otherwise clearly articulate, its recognition that the United States Sentencing

guidelines are not mandatory,” Aplt. Br. at 10, but he makes no showing that this

was error. He relies on the Supreme Court’s statement in Gall v. United States,

                                            -2-
552 U.S. 38, 51 (2007), that a district court commits “significant procedural

error” if it “treat[s] the Guidelines as mandatory,” but he cites no authority for his

contention that a district court also commits procedural error if it does not

expressly say that it knows the guidelines are not mandatory. To warrant reversal

under a plain error standard, the district court must have committed an error that

is “clear or obvious under well-settled law.” Mendoza, 543 F.3d at 1192 (internal

quotation marks omitted). Even if we assumed that the district court’s failure to

articulate its understanding was error, it was neither clear nor obvious under

well-settled law.

      Moreover, the record does not suggest the district court actually treated the

sentencing guidelines as mandatory, and we may assume that the court knew the

law and applied it correctly absent some contrary indication in the record. See

United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007). The

Supreme Court held that the sentencing guidelines were not mandatory more than

five years before Mr. Mouille was sentenced, see United States v. Booker,

543 U.S. 220, 259 (2005), and we have no reason to believe the district court did

not follow that holding in sentencing Mr. Mouille.

      Mr. Mouille also fails to show that the district court’s alleged error affected

his substantial rights, i.e., that “there is a reasonable probability that, but for the

error claimed, the result of the proceeding would have been different,” Mendoza,

543 F.3d at 1194 (internal quotation marks omitted). Mr. Mouille contends that

                                           -3-
his substantial rights were affected because he was denied the benefit of the

bargain he struck in his plea agreement that the government would recommend a

sentence at the low end of the guideline range, which it did. He seems to suggest

that had the district court acknowledged the discretionary nature of the guidelines,

it would have imposed a lesser sentence. 1 The district court’s discussion of the

sentencing factors under 18 U.S.C. § 3553(a), however, evidences that the court

would not have imposed a lesser sentence regardless of its view of the sentencing

guidelines. To the contrary, the court said the sentence it imposed was probably

not high enough given Mr. Mouille’s extensive criminal history and the nature of

the current crimes of conviction. R. Vol. 2 at 16.

      Mr. Mouille also argues that the district court’s sentence on count one was

substantively unreasonable. “When evaluating the substantive reasonableness of

a sentence, we afford substantial deference to [the] district court[ ], and determine

whether the length of the sentence is reasonable given all the circumstances of the

case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v.

Alvarez-Bernabe, 626 F.3d 1161, 1167 (10th Cir. 2010) (alteration in original)

(internal quotation marks omitted). When reviewing a sentence that is within the



1
       We note that Mr. Mouille expressly acknowledged in his Statement of
Defendant in Advance of Plea of Guilty that the government’s recommendation of
a sentence at the low end of the guideline range would not be binding on the
court, which would determine the appropriate sentence independently. R. Vol. 1
at 16, 20-21.

                                         -4-
guideline range, we may apply a presumption of reasonableness. Gall, 552 U.S.

at 51.

         The eighteen-month sentence the district court imposed on count one was

within the guideline range of fifteen to twenty-one months for that offense.

Mr. Mouille acknowledges the sentence is entitled to a presumption of

reasonableness, but contends the presumption is rebutted by the fact that the

sentence is longer than either the zero-month sentence he requested or the

low-end guideline sentence the government recommended. 2 We see no merit to

this argument; that the district court imposed a sentence longer than either party

requested does not by itself make the sentence unreasonable. As Mr. Mouille

acknowledges, the district court “articulate[d] a justification for the sentence

imposed” that “related to the factors set forth in 18 U.S.C. § 3553.” Aplt. Br. at

16-17. Mr. Mouille has failed to establish that the eighteen-month sentence was

substantively unreasonable.




2
      Mr. Mouille states in his brief that there is a question “whether the
presumption of reasonableness for a guideline sentence, and the need to rebut it,
applies only to those cases where there is substantive error–or also applies to
those cases where there is a procedural error.” Aplt. Br. at 16. He may,
therefore, be advancing this argument in an effort to rebut the presumption of
reasonableness only because he believes he must do so to establish his claim of
procedural unreasonableness. Regardless, we will address this argument as a
stand-alone challenge to the substantive reasonableness of his sentence.

                                         -5-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Jerome A. Holmes
                                          Circuit Judge




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