                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 30, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-3016
                                              (D.C. No. 2:09-CR-20069-KHV-1)
    DARNELL RICHMOND,                                     (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and KELLY, Circuit Judges.


         Darnell Richmond appeals his 151-month sentence for bank robbery. We

have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

                                      B ACKGROUND

         In 2009, while on parole from an assault conviction, Richmond entered a

bank in Kansas City, Kansas, handed a teller a note that read, “I have a bomb,”



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
and demanded money. R., Vol. III, at 6. The teller gave Richmond $2,157, and

he fled the bank, pursued by an off-duty police officer. Richmond attempted to

enter a vehicle being driven by a bystander, but the doors were locked. Shortly

thereafter, the police officer apprehended him.

      Richmond pleaded guilty, without a plea agreement, to one count of bank

robbery, a violation of 18 U.S.C. § 2113(a). The U.S. Probation Office prepared

a presentence investigation report, noting that Richmond, who was forty-eight

years old, had a lengthy criminal history, which included two prior convictions

for crimes of violence (both involving robbery). He thus qualified as a career

offender under U.S.S.G. § 4B1.1, subject to an offense level of 32 and a criminal-

history category of VI. But since he accepted responsibility for his crime, his

offense level was reduced by three points, to 29. The resulting sentencing

guidelines range was 151 to 188 months.

      At sentencing, Richmond sought a variance from the career-offender

sentencing range. He argued that a variance was warranted because (1) his oldest

crime of violence occurred twenty-three years before the instant bank robbery;

(2) a non-career-offender sentence would nevertheless keep him incarcerated into

his fifties—an age with reduced recidivism rates; (3) he had a long history of

using cocaine to medicate depression; and (4) the instant bank robbery was an

impulsive response to being robbed of cocaine and money the prior evening. The

prosecutor opposed a variance, noting that Richmond’s involvement in robbery,

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burglary, assault, firearms possession, trespassing, and drug-possession crimes

had spanned most of his adult life. Ultimately, the district court rejected

Richmond’s arguments for a variance, and imposed a sentence at the bottom of

the applicable career-offender range, 151 months. The court explained:

      I . . . have a hard time applying [a variance] to the facts of this
      particular case. And it’s basically, Mr. Richmond, because you have
      such a violent and extended criminal history and the fact that you’d
      only been released from prison a few months when you committed
      this offense[.] I know that your addiction to cocaine base or crack
      has apparently been part of this, but the fact that that’s gone on for
      some 20 years, suggests to me that we need to tip the balance in
      favor of a longer sentence to protect the public from further crimes
      by you and to give you necessary treatment, training, and other
      therapeutic types of services . . . .
               . . . I think [a 151-month sentence] is lengthy enough to
      promote respect for the law, to reflect the seriousness of your crime,
      and to provide just punishment. Hopefully, it will deter you and
      others from committing crimes like this in the future, but also with a
      heavy emphasis on protecting the public from further crimes by you.

R., Vol. II, at 60-61.

      Richmond objected to the sentence on the ground that mental-health

counseling and drug-abuse treatment could be accomplished with a shorter

sentence. The district court agreed, but stated it was placing a “heavy emphasis

[on] protecting the public from further crime by [Richmond] because at this point

. . . it’s pretty much a rol[l] of the dice whether he’s going to deal with his drug

problem.” Id. at 64.

      Richmond now appeals his sentence.




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                                      D ISCUSSION

      We review a sentence for reasonableness, applying an “abuse-of-discretion

standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

Reasonableness review has both procedural and substantive components. United

States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010), cert. denied,

79 U.S.L.W. 3270 (U.S. Nov. 1, 2010) (No. 10-6271). “Review for procedural

reasonableness focuses on whether the district court committed any error in

calculating or explaining the sentence.” United States v. Friedman, 554 F.3d

1301, 1307 (10th Cir. 2009). “Review for substantive reasonableness focuses on

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).” Id. (quotation

omitted).

      Richmond first makes the procedural argument that the district court failed

to “adequately consider the [18 U.S.C. § 3553(a)] sentencing factors.” Aplt. Br.

at 6. But he neither raised this argument below, nor addresses on appeal the

stringent requirements necessary for relief under the resulting plain-error

standard. See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007) (noting that forfeited error is subject to plain-error review, which requires

“(i) error, (ii) that is plain, which (iii) affects the defendant’s substantial rights,

and which (iv) seriously affects the fairness, integrity, or public reputation of




                                           -4-
judicial proceedings”). Consequently, we need not consider the argument at all.

See United States v. Romero, 491 F.3d 1173, 1179 (10th Cir. 2007).

      In any event, the record clearly shows that there was no error, let alone

plain error, as the district court sufficiently considered the § 3553(a) factors in

sentencing Richmond. Specifically, the court discussed Richmond’s history,

noting his extensive criminality and drug use, and addressed the multiple needs

served by the sentence imposed. See 18 U.S.C. § 3553(a)(1) & (2). Nothing

requires the district court to engage in “a ritualistic incantation” or recite any

“magic words” to demonstrate it has “fulfilled its responsibility to be mindful of

the factors that Congress has instructed it to consider.” United States v. Lopez-

Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (quotation omitted). “Rather, it is

enough if the district court considers § 3553(a) en masse and states its reasons for

imposing a given sentence.” United States v. Kelley, 359 F.3d 1302, 1305 (10th

Cir. 2004).

      Richmond next complains that “the District Court failed to address the

demonstrated correlation between age and the risk of recidivism.” Aplt. Br. at

10-11. Although Richmond claims this is a substantive argument, it is in fact

procedural. See United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009)

(noting that procedural reasonableness is implicated if the district court failed to

adequately consider the § 3553(a) factors or explain the chosen sentence). This

argument too was not raised in the district court, and is not accompanied on

                                           -5-
appeal by a plain-error discussion. Nevertheless, the district court’s repeated

comments that a career-offender sentence was necessary to protect the public

from Richmond indicate that it considered and rejected his risk-of-recidivism

argument.

      To the extent Richmond intended on appeal to advance a true substantive

challenge to the length of his sentence on the basis of recidivism statistics, we

conclude that the district court properly declined to vary from the career-offender

range. Richmond’s lengthy criminal history and the serious circumstances of the

instant offense suggest that recidivism statistics are an unreliable predictor of

Richmond’s actual likelihood of re-offending and harming the public.

      Finally, Richmond makes the substantive argument that the district court

“overemphasized the need to protect the public . . . at the expense of the other

legitimate statutory factors.” Aplt. Br. at 10. But we may not examine either “the

weight a district court assigns to various § 3553(a) factors,” or “its ultimate

assessment of the balance between” the factors. United States v. Smart, 518 F.3d

800, 808 (10th Cir. 2008). Rather, “we must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the [sentence

imposed].” Id. (quotation omitted). Further, a sentence imposed within the

properly calculated advisory range, like Richmond’s, is entitled to a rebuttable

presumption of reasonableness. United States v. Sanchez-Juarez, 446 F.3d 1109,

1114 (10th Cir. 2006). Again, given Richmond’s lengthy criminal history, as well

                                          -6-
as the circumstances of the instant crime, we conclude that the district court’s

emphasis on protecting the public does not render the 151-month sentence

substantively unreasonable.

                                   C ONCLUSION

      The judgment of the district court is AFFIRMED. 1



                                                    Entered for the Court


                                                    Deanell R. Tacha
                                                    Circuit Judge




1
       Richmond has filed a letter seeking permission to file a pro se supplemental
appellate brief. But he has been represented by counsel throughout this appeal.
Consequently, we “invok[e] our policy of addressing on direct appeal only those
issues raised by counsel,” and we do not address the issues raised in Richmond’s
proffered pro se brief. United States v. McDermott, 64 F.3d 1448, 1450 n.1
(10th Cir. 1995). Accordingly, Richmond’s request to file a pro se supplemental
brief is denied.

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