                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        June 14, 2010
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 09-4231
 JOSEPH DANIEL ARCHULETA,                          (D.C. No. 2:09-CR-00124-CW-1)
                                                               (D. Utah)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, TACHA and O’BRIEN, Circuit Judges.



       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.

       Defendant Joseph Daniel Archuleta pled guilty to one count of possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and was



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
sentenced to a term of imprisonment of 188 months. Archuleta now appeals, claiming the

sentence imposed by the district court is substantively unreasonable. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                              I

       On March 11, 2009, a federal grand jury indicted Archuleta on one count of being

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of

possessing with intent to distribute 5 grams or more of methamphetamine, in violation of

21 U.S.C. § 841(a)(1). On May 29, 2009, Archuleta pled guilty to the possession of

methamphetamine charge in exchange for the government’s agreement to dismiss the

felon in possession charge.

       On July 13, 2009, the probation office disclosed to the district court and the parties

its presentence report (PSR). In calculating Archuleta’s advisory guideline range, the

PSR first imposed a base offense level of 26 pursuant to U.S.S.G. § 2D1.1(c)(7) and a 2-

level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for Archuleta having possessed a

firearm in connection with the offense of conviction. The PSR then imposed an 8-level

enhancement because it concluded Archuleta satisfied the definition of “career offender”

outlined in U.S.S.G. § 4B1.1(a) and the applicable offense level from the career offender

table set forth in U.S.S.G. § 4B1.1(b)(B), i.e., 34, was greater than the offense level

otherwise applicable to Archuleta. Lastly, the PSR imposed a 3-level decrease pursuant

to U.S.S.G. § 3E1.1 for acceptance of responsibility, resulting in a total offense level of

31. That offense level, combined with Archuleta’s criminal history score of 14 and

                                              2
criminal history category of VI, resulted in an advisory guideline range of 188 to 235

months.1

       Archuleta filed no objections to the PSR. He did, however, file a motion for

downward departure or, in the alternative, downward variance. In that motion, Archuleta

asserted the district court should “impose a sentence within the applicable guideline range

without application of the career offender guideline,” i.e., a sentence of 110 to 137

months. ROA, Vol. 1 at 22. Archuleta’s motion argued this could be accomplished by

way of “a § 4A1.3 vertical departure from the career criminal guideline” based upon the

mitigating details of his criminal history. Id. at 25. Although Archuleta conceded “[h]e

[had been] in trouble all of the time,” he argued his “trouble [was] of a less serious nature

than the worst of the worst offenders,” i.e., the “offenders which the [career offender]

guideline must be attempting to identify . . . . ” Id. In particular, Archuleta asserted he

“ha[d] never been convicted of a violent crime for the purposes of the career offender

guidelines,” id., and he asserted his drug distribution offenses were driven by his own

addiction to drugs.

       Archuleta’s motion also argued that a sentence of 110 to 137 months could be

accomplished by way of a downward variance from the advisory career criminal


       1
        A revised PSR was subsequently filed adding a 2-level enhancement for
possession of a dangerous weapon, which resulted in a total offense level, absent the
career offender provisions, of 25. This revised total offense level would have, but for the
career offender provisions, produced an advisory guideline range of 110 to 137 months.
Because of the applicability of the career offender provisions, however, the revision to the
PSR did not impact Archuleta’s total offense level or his advisory guideline range.

                                              3
guidelines. In particular, Archuleta suggested the district court could impose a sentence

"within the [advisory] guideline range, as calculated without the career offender

provisions . . . .” Id. at 33. Archuleta argued that “this straight guideline sentence on his

drug count with a criminal history category of VI [wa]s appropriate to account for his

criminal culpability in total . . . .” Id. at 26.

       The government filed a response in opposition to Archuleta’s motion, arguing

“there [we]re no ‘genuinely distinguishing factors’ that would justify refusing to treat

[Archuleta] as a career offender.” Id. at 57 (quoting United States v. Friedman, 554 F.3d

1301, 1310 (10th Cir. 2009)). The government noted Archuleta “ha[d] 10 criminal

convictions along with 7 additional arrests since becoming an adult,” id. at 59, and two of

those prior convictions involved distribution of “large quantities of drugs,” id. at 57.

Consequently, the government argued, Archuleta’s criminal history “put him squarely

within [the career offender] category.” Id.

       Archuleta’s sentencing hearing took place on November 20, 2009. At the outset of

the hearing, the district court concluded the PSR’s advisory guideline calculations were

correct, and that “unless there [wa]s a disregarding of the career offender category,”

ROA, Vol. 2 at 7, Archuleta’s advisory guideline range was “188 to 235 months,” id. at

7-8. Turning to Archuleta’s motion for a downward departure or variance, the district

court noted that Archuleta “started having troubles with the juvenile system in 1989,

maybe at 14 or 15,” and had “basically been constantly in trouble from that time to the

present.” Id. at 12-13. In light of this history, the district court noted, it “ha[d] great

                                                    4
difficulty . . . finding any reason not to conclude that . . . Archuleta [wa]s a career

offender.” Id. at 25. “And,” the district court concluded, because the Sentencing

Commission had “spell[ed] out quite clearly that the required sentence for someone with

[Archuleta’s] kind of history [wa]s a severe sentence,” the court was “required to find,

based on the[] facts, that . . . Archuleta [wa]s a career offender, and [it] w[ould] sentence

him at the low end of the Guideline range.” Id. Accordingly, the district court imposed a

sentence of 188 months’ imprisonment, a term at the bottom of the advisory guideline

range.

         Judgment was entered in the case on November 30, 2009. Archuleta filed a notice

of appeal on December 15, 2009.

                                               II

         On appeal, Archuleta contends “[t]he within-guidelines sentence imposed [by the

district court] was substantively unreasonable.” Aplt. Br. at 7. According to Archuleta,

his “acceptance of responsibility for his present crime and understanding of the nature

and effects of his drug addiction and criminal history, coupled with the fact that only one

of his prior controlled substance offenses involved a very large quantity of drugs,”

constituted “‘genuinely distinguishing factors’” that “justif[ied] a variance from [the]

otherwise applicable career offender guideline sentence.” Id. at 15 (quoting Friedman,

554 F.3d at 1310). Consequently, he argues, “a guidelines sentence was substantively

unreasonable in [his] case and the district judge abused his discretion in imposing it.” Id.

at 15-16.

                                               5
       We review criminal sentences for reasonableness, giving deference to the district

court under “the familiar abuse-of-discretion standard.” Gall v. United States, 552 U.S.

38, 46 (2007). A sentence is substantively unreasonable if its length is unreasonable

“given all the circumstances of the case in light of the factors set forth in 18 U.S.C. §

3553(a).” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008) (internal

quotation and citation omitted). We presume that a sentence within a properly-calculated

Guidelines range is substantively reasonable. United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2006). This presumption can be rebutted if the defendant shows the

sentence imposed is unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a).

Id.

       At the outset, we note Archuleta does not dispute, and the record on appeal firmly

establishes, that the district court properly applied the career offender provisions of

U.S.S.G. § 4B1.1 in calculating Archuleta’s advisory guideline range. More specifically,

Archuleta qualifies as a “career offender” under § 4B1.1(a) because (1) he was more than

eighteen years old at the time he committed the instant offense of conviction, (2) the

instant offense of conviction constitutes a “controlled substance offense” under U.S.S.G.

§ 4B1.2(b), and (3) Archuleta has two prior felony convictions that likewise qualify as

“controlled substance offense[s]” under § 4B1.2(b). See U.S.S.G. § 4B1.1(a) (defining

career offender).

       Turning directly to Archuleta’s arguments, we conclude, after carefully examining

the record on appeal, that he has failed to rebut the presumption of reasonableness we

                                              6
must afford to the sentence imposed by the district court. As the district court noted at the

time of sentencing, Archuleta’s criminal history is quite extensive, beginning when

Archuleta was fourteen years old and continuing unabated, save for his periods of

confinement, until his arrest in connection with the instant case at the age of thirty-four.

As an adult, Archuleta was convicted ten times between March 1993 and February 2009,

and served time in both state and federal correctional facilities. Of those ten prior adult

convictions, two involved the possession or attempted possession of methamphetamine

with intent to distribute. The most recent of those two convictions, in March 2006, arose

out of Archuleta’s possession with intent to distribute approximately two pounds of

methamphetamine. Although Archuleta was sentenced in connection with that conviction

to a term of imprisonment of one to fifteen years, he ultimately served less than three

years and was discharged from state confinement on April 29, 2008. Following an

intervening arrest in October 2008 for driving on a suspended license, Archuleta

committed the instant offense, which again involved the possession of methamphetamine

with intent to distribute, on January 21, 2009. The fact that both Archuleta’s first and

most recent drug-trafficking convictions involved lesser quantities of methamphetamine

than his second such conviction does nothing to persuade us the career offender

provisions of the guidelines should have been effectively ignored by the district court.

The same holds true for Archuleta’s acceptance of responsibility for the instant offense of

conviction, including his seemingly sincere recognition of his underlying drug addiction.

Instead, we are persuaded the district court adequately took those factors into account

                                              7
when it imposed a sentence at the bottom of Archuleta’s advisory guideline range. Thus,

in sum, we conclude there was no abuse of discretion on the part of the district court in

refusing to impose a sentence below the advisory guideline range.

       AFFIRMED.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Chief Judge




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