                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                    October 18, 2006
                                 TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                  No. 06-2027 & 06-2030
                                            (D.C. No. CR-05-2260 JP & CR-96-
 v.
                                                         311-JP)
                                                      (New M exico)
 M A RC GEN E C LA RK ,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      M arc Gene Clark appeals the district court’s imposition of a 150 month

sentence for robbery and discharging a firearm during a crime of violence. W e

affirm.

      M r. Clark entered a convenience store in Shiprock, New M exico with a

loaded rifle. Once inside, he approached the counter and demanded the cashier



      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
give him all money in the register. In response to the cashier’s initial

unwillingness to hand over the money, M r. Clark fired a shot at the cigarette

dispenser above the cashier’s head. Upon noticing another store employee

moving in his direction, M r. Clark fired two additional shots from his rifle in the

vicinity of the employee. The store clerk turned over $101 from the cash register.

W ith the money in hand, M r. Clark exited the store and fled. Individuals waiting

outside the convenience quickly apprehended him after a brief pursuit.

      M r. Clark pled guilty to robbery in violation of 18 U.S.C. §§ 2111 and

1153, and to using a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A)(iii). The base offense level for the robbery

charge, with a 3-level reduction for acceptance of responsibility and a criminal

history category of III, resulted in a guidelines sentencing range of 30 to 37 for

the robbery count. The firearm count, 18 U.S.C. 924(c), included a statutory

minimum 120-month term required to run consecutively to any term imposed for

the robbery count. Thus, M r. Clark’s total guidelines sentence range was

calculated to be 150 to 157 months.

      M r. Clark did not file a sentencing memorandum. At the sentencing

hearing, his counsel argued that a ten-year total sentence would be reasonable

considering “the mandatory 10-year minimum sentence for M r. Clark . . . leaves

him facing so much time.” Rec., vol. III at 11. He requested the court consider a

letter from his client’s mother describing the family’s troubled history, id. at 9,

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and stated that M r. Clark had no intention to cause, nor did his actions

subsequently lead to, any personal injury. Id. at 11. He also asked the court to

consider M r. Clark’s difficult transition from a halfway house in Las Cruces

where he successfully worked a steady job, to Shiprock where employment is

scarce. Counsel suggested this move triggered the depression, alcohol use, and

economic need that led to the robbery. Id.

      After considering his arguments, the district court sentenced M r. Clark at

the bottom of the guideline range to a total prison term of 150 months for the

robbery and firearm counts. In addition to violating 18 U.S.C. §§

924(c)(1)(A)(iii), 2111 and 1153, M r. Clark’s actions at the convenience store

violated the conditions of an ongoing supervised release. Accordingly, the court

sentenced M r. Clark to an additional 24 months to run consecutively with his

150-month sentence for violating the conditions of his supervised release.

      M r. Clark contends the district court’s imposition of a sentence at the

bottom of his guideline range was unreasonable in light of United States v.

Booker, 543 U.S. 220 (2005), and the factors outlined in 18 U.S.C. § 3553(a).

Specifically, he claims the application of the mandatory minimum “distorts the

guideline range applied in this case such that the range does not properly reflect

the 3553(a) factors.” Aplt. Br. at 26. M oreover, M r. Clark argues his traumatic

childhood and the disruption of his progress tow ard rehabilitation supports a

sentence below the guideline range.

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      “Under Booker, we are required to review district court sentencing

decisions for ‘reasonableness.’” United States v. Cage, 451 F.3d 585, 591 (10th

Cir. 2006). In United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006), we held

that sentences imposed within the advisory guideline range are presumed

reasonable. Id. at 1054. “The defendant may rebut this presumption by

demonstrating that the sentence is unreasonable in light of the . . . sentencing

factors laid out in § 3553(a).” Id. at 1055. 1

      First, we address M r Clark’s contention that a sentence is unreasonable

where a mandatory minimum creates a drastically longer overall sentence than a

sentence punishing the same conduct and derived only from the guidelines. M r.

Clark’s § 924(c) conviction for using a firearm mandated a minimum 10-year

sentence to run consecutively to his robbery sentence. The 10-year mandatory

sentence plus the guidelines recommendation of 30 to 37 months for robbery

resulted in an overall sentence range of 150 to 157 months.     By contrast, if M r.

Clark had been convicted of robbery and his discharge of a firearm was accounted

for through a sentencing enhancement rather than a separate count under § 924(c),




      1
       M r. Clark argues the reasonableness presumption for within-guidelines
sentences set out in United States v. Kristal, 437 F.3d 1050 (10th Cir. 2006), is
inconsistent with the Supreme Court’s holding in Booker. In doing so, he
recognizes “that a three-judge panel cannot overrule a prior holding,” w ithout a
superseding Supreme Court precedent or an en banc decision, and explains this
objection is made “in order to preserve the issue for possible review by this court
en banc and/or by the Supreme Court by certiorari.” Aplt. Br. at 23.

                                           -4-
he would have received a 7-level enhancement to his robbery count pursuant to

U.S.S.G. § 2B3.1(b)(2)(a). This enhancement would have bumped up M r. Clark’s

robbery guidelines range to 63 to 78 months, a range half as lengthy as the range

for a conviction for robbery and a conviction for discharging a firearm. Notably,

although the recommended ranges are quite different, the conduct underlying the

two situations are the same; the difference in outcome springs from the

government’s charging decision and the resulting convictions.

      M r. Clark argues the sentencing range in his case is inconsistent with “the

sentence the Sentencing Commission has determined would satisfy all the §

3553(a) sentencing purposes, given the same offense characteristics as M r.

Clark’s offense and the same criminal history as M r. Clark,” without the

accompanying §924(c) charge. Aplt. Rep. Br. at 5. He relies primarily upon §

3553(a)(6), which requires sentencing courts to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” H e contends his robbery sentence should

have been reduced to prevent sentence disparities among those with “same

offense characteristics,” or those individuals who comm itted burglary and fired a

weapon, but have been differently charged.

      M r. Clark is correct in his assertion that § 3553(a)(6) aims to prevent

sentence disparities, but he fails to acknowledge that its uniformity is required

only among defendants who “have been found guilty of similar conduct.” 18

                                         -5-
U .S.C . § 3553(a)(6) (emphasis added). M r. Clark was “found guilty” on two

counts; the person with whom he seeks comparison was “found guilty” on a single

count of robbery. As w ritten, § 3553(a)(6) does not require the district court to

consider disparities between individuals found guilty of different crimes, as

opposed to those who have engaged in similar conduct. The district court,

therefore, did not disregard the requirements of § 3553(a)(6) when it refused to

equalize penalties between the real M r. Clark, who had two convictions, and the

counterfactual M r. Clark, who had one conviction and a sentencing enhancement.

      M r. Clark further maintains his traumatic childhood required a sentence

below the guidelines range. Because his sentence w as w ithin his advisory

guideline range, we presume the sentence is reasonable and require M r. Clark to

demonstrate that it “is unreasonable in light of the . . . sentencing factors laid out

in § 3553(a)” to overcome this presumption. Kristl, 437 F.3d at 1055.

      M r. Clark describes a number of unfortunate events from his childhood that

contributed to his participation in criminal activity, including scholastic and

athletic failures; molestation by a school janitor; and a lack of parental attention.

He asserts the district court failed to give sufficient weight to § 3553(a)(1), which

requires it to consider “the nature and circumstances of the offense and history

and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). W e disagree. The

district court review ed the letter from M r. Clark’s mother describing his

childhood, the facts laid out in the PSR, and the oral recounting of M r. Clark’s

                                          -6-
personal problems by M r. Clark’s counsel at the sentencing hearing. Rec., vol. III

at 7. Although M r. Clark had a troubled childhood, § 3553(a)(1) is but one of

several factors the district court is required to consider. It must also consider “the

need for the sentence to reflect the seriousness of the crime and promote respect

for the law.” United States v. Galarza-Payan, 441 F.3d 885, 890 (10th Cir. 2006)

(citing 18 U.S.C. § 3553(a)(6) ). M r. Clark fired three shots within the confined

space of a small convenience store, which, as the district court noted, violated

“the conditions of [his] supervised release in a very violent way.” Rec., vol. III at

28. M r. Clark does not point to anything in his personal background that is

sufficiently extraordinary to overcome the presumption that the district court’s

weighing of all the 3553(a) factors was reasonable.

      M r. Clark claims his release from the halfway house, with its steady

employment in Las Cruces, followed by a subsequent period of unemployment in

Shiprock leading up to the robbery, caused the depression and alcohol abuse that

led to his convictions, thereby supporting a sentence below the guideline range.

W e do not doubt the truth or unfortunate nature of the underlying facts. However,

M r. Clark’s factual recitations do not in themselves demonstrate his sentence is

unreasonable.




                                          -7-
W e A FFIR M .


                 ENTERED FOR THE COURT

                 Stephanie K. Seymour
                 Circuit Judge.




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