                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                             July 6, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-7072
                                                 (D.C. No. 6:17-CR-00023-RAW-1)
THOMPSON CHRISTOPER KYLE                                    (E.D. Okla.)
MANDRELL,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
                 _________________________________

      Thompson Christopher Kyle Mandrell appeals his 97-month sentence as

substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                   BACKGROUND

      Mr. Mandrell was charged with and pleaded guilty to one count of possession

of material involving the sexual exploitation of minors in violation of 18 U.S.C.


      *
        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. This order and judgment is not binding precedent,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.
§§ 2252(a)(4)(B) and 2252(b)(2). Based on his criminal history and total offense

level, the probation department calculated an advisory guideline range of 97-120

months’ imprisonment. Neither party objected to the guideline calculation;

Mr. Mandrell, however, filed a motion for a sentencing variance seeking a

below-guidelines sentence. The government opposed the motion.

       At the sentencing hearing, Mr. Mandrell’s counsel noted that some sentencing

courts had been departing from the child pornography guideline in U.S.S.G. § 2G2.2:

             MR. WILLIAMS: So I feel that the landscape of the law is
       changing in these respects.
             THE COURT: I’ll be honest with you, I don’t feel the landscape
       changing much up here.
              MR. WILLIAMS: Well, I understand that, Your Honor. But the
       U.S. Federal Sentencing Guidelines are just that, they’re federal. They’re
       supposed to keep uniformity, which is why we have the sentencing
       disparity issue that comes up. You know, obviously, that is within the
       discretion of the district court.
              THE COURT: Yeah, and, you know, I might make the observation,
       with all due respect to my colleagues, that they’re causing the disparities,
       not me.
R., Vol. 2 at 12.

       Counsel explained the courts that have departed from the Guideline have done

so primarily because most of the sentencing enhancements under § 2G2.2 are

inherent in the crime itself, and therefore tend to result in advisory imprisonment

ranges at or near the statutory maximum for all offenders. He also argued for a

variance because the Guideline is a directive from Congress and not based on

empirical evidence from the Sentencing Commission. And he further urged a


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below-guidelines sentence arguing that Mr. Mandrell would be easy prey in prison

because of his mental impairments (ADHA, depression, and autism), youthful

appearance, timid demeanor, and poor hygiene.

      After hearing the government’s argument in opposition, the district court

denied Mr. Mandrell’s motion for a variance:

             Counsel for the defendant has filed a motion for downward
      variance . . . from the advisory guideline range of the 97 to 120 months
      down to perhaps 60 months. Counsel requests the . . . variance pursuant to
      various factors cited in 18 [U.S.C.] [§] 3553(a), including the nature and
      circumstances of the offense, and the history and characteristics of the
      defendant. Counsel contends that the defendant’s mental health condition,
      his youthful appearance, age, timid demeanor, and minimal criminal history
      warrant a downward departure.
             Counsel also cites case law in which various courts have varied
      downward based upon the circumstances surrounding the offenses, and the
      nature and circumstances of the offenders in those cases.
            The Court has reviewed the defendant’s motion, and also taken into
      consideration the government’s position as detailed in their written
      response and in their rebuttal arguments here in open court.
            In establishing an appropriate sentence for this defendant, the Court
      has considered the totality of the circumstances regarding the offense of
      conviction, as well as the personal history and characteristics of this
      defendant.
              With regard to the nature and circumstances of the offense in this
      case, the Court finds the guidelines take into account the crime charged.
      Furthermore, the cases cited by the defendant are mostly dissimilar and
      distinguishable from the facts in this case. Therefore, the Court finds that
      no sentencing disparities exist.
              I recognize my authority to vary from the advisory sentencing range
      [but] [t]aking into consideration the defendant’s history and characteristics,
      and his prior violent conduct, as well as the offense conduct, the need for
      just punishment, deterrence, and protection of the public, the Court cannot
      find that the circumstances in this case warrant a variance based on the
      sentencing factors cited in [§] 3553(a).

                                            3
R., Vol. 2 at 25-26 (emphasis added). The court sentenced Mr. Mandrell to

97 months’ imprisonment—the low end of the advisory guideline range.

                             STANDARD OF REVIEW

      “Regardless of whether the sentence imposed is inside or outside the

Guidelines range, [we] must review the sentence under an abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 51 (2007). This review “includes both

a procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008).

      In applying the abuse-of-discretion standard, we “must first ensure that the

district court committed no significant procedural error,” which includes “failing to

consider the § 3553(a) factors . . . or failing to adequately explain the chosen

sentence.” Gall, 552 U.S. at 51. As to substantive reasonableness, “the sentence is

presumptively reasonable,” when “the district court properly considers the relevant

Guidelines range and sentences the defendant within that range.” United States v.

Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). “The defendant may rebut this

presumption by demonstrating that the sentence is unreasonable in light of the other

sentencing factors laid out in § 3553(a).” Id.

      But because Mr. Mandrell failed to object to the method by which the

sentence was imposed—its procedural reasonableness—we do not apply the




                                            4
abuse-of-discretion standard of review, but review the sentencing decision for

plain error:

       [E]ven if a district court is fully apprised of a defendant’s arguments for a
       below-Guidelines sentence, the defendant must still contemporaneously
       object in the district court to the method by which the district court arrived
       at a sentence, including arguments that the sentencing court failed to
       explain adequately the sentence imposed, if he . . . hopes to avoid plain
       error review on appeal of any alleged procedural flaw.
United States v. Wireman, 849 F.3d 956, 961 (10th Cir. 2017) (internal quotation

marks omitted). “We will find plain error only when there is “(1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 962 (internal quotation

marks omitted).

       However, even though Mr. Mandrell did not object to the length of the

sentence—its substantive reasonableness—“we do not require the defendant to object

in order to preserve the issue.” United States v. Martinez-Barragan, 545 F.3d 894,

905 (10th Cir. 2008) (internal quotation marks omitted). Instead, “we review the

length of the sentence for an abuse of discretion.” Id.

                                        ANALYSIS

       According to Mr. Mandrell, the district court erred by failing to consider

§ 3553(a)(6), which requires the court to consider “the need to avoid unwarranted

sentencing disparities among defendants with similar records who have been found

guilty of similar conduct.” We disagree and conclude that the 97-month sentence is

procedurally sound and substantively correct.


                                              5
       As a preliminary matter, Mr. Mandrell appears to raise procedural error by

arguing that the court “declin[ed] to . . . recognize that [a guidelines sentence]

would . . . create a disparity.” Aplt. Opening Br. at 9. As support, he points to the

district court’s statement: “I might make the observation, with all due respect to my

colleagues, that they’re causing the disparities, not me.” R., Vol. 2 at 12. This is not

the refusal to recognize a disparity; instead, it reflects the court’s view as to who is

responsible for the disparity. More to the point, the record unequivocally

demonstrates there was no procedural error because the court “correctly calculated

the applicable Guidelines range, allowed [the] parties to present arguments as to what

they believed the appropriate sentence should be, considered all of the § 3553(a)

factors, and thoroughly documented his reasoning.” Gall, 552 U.S. at 53.

       Mr. Mandrell’s true complaint is that the sentence is substantively unreasonable.

But this argument fails as well. To establish substantive unreasonableness, Mr. Mandrell

must “demonstrate[e] that the [within-guidelines] sentence is unreasonable in light of the

other sentencing factors laid out in § 3553(a).” Kristl, 437 F.3d at 1050. He attempts to

do so by arguing that § 2G2.2 is flawed, citing several instances where sentencing courts

have granted downward variances based on their policy disagreements with the

Guideline. We have rejected this argument: “In our circuit, a within-guideline-range

sentence that the district court properly calculated is entitled to a rebuttable presumption

of reasonableness on appeal . . . and this presumption of reasonableness holds true even if

the Guideline at issue arguably contains serious flaws or otherwise lacks an empirical

basis.” Wireman, 849 F.3d at 964 (ellipsis, citation, brackets, and internal quotation

                                              6
marks omitted). “[W]e apply the presumption of reasonableness to sentences based

on 2G2.2, regardless of its alleged lack of empirical support.” Id. (internal quotation

marks omitted).

       Further, the goal in § 3553(a)(6) is not absolute parity; instead, the statute

seeks to eliminate “unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” Id. (emphasis added).

Indeed, “[d]isparate sentences . . . are permissible when the disparity is explicable by

the facts of the particular case.” United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1223 (10th Cir. 2008).

       The district court compared and contrasted the cases cited by Mr. Mandrell in

his motion and at the sentencing hearing. The record establishes that the court had

reviewed the cases cited by Mr. Mandrell prior to the hearing, and made notes of the

factual differences: “I’ve got my annotated copy [of Mr. Mandrell’s motion] right

here.” R., Vol. 2 at 13. In the end, the court found that “the cases cited by the

defendant are mostly dissimilar and distinguishable from the facts in this case.

Therefore, the Court finds that no sentencing disparities exist.” Id. at 26.

       The sentence is procedurally and substantively reasonable. And because there

was no plain error or an abuse of discretion, the sentence is affirmed.


                                                 Entered for the Court


                                                 Carolyn B. McHugh
                                                 Circuit Judge


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