                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                       May 1, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 07-2268
 v.                                           (D.Ct. No. 1:07-CR-00693-JEC-1)
                                                          (D. N.M.)
 MONROE HARRIS THORNHILL,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before TACHA, Circuit Judge, and BARRETT and BRORBY, Senior Circuit
Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Defendant Monroe Harris Thornhill pled guilty to one count of possession


      *
         This order and judgment is not binding precedent except under the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.
of a firearm by a person previously committed to a mental institution in violation

of 18 U.S.C. §§ 922(g)(4) and 924(a)(2). He now appeals his sixteen-month

sentence on grounds it is: (1) procedurally unreasonable because the district court

failed to provide an explanation for imposing such a sentence; and (2)

substantively unreasonable because his sentence is greater than necessary to

achieve the sentencing goals of 18 U.S.C. § 3553(a). We exercise jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Thornhill’s

sentence.



                                  I. Background

      In 2003, Polk County sheriff’s officers arrested Mr. Thornhill in Bartow,

Florida, after he discharged a firearm near those officers. Mr. Thornhill was

charged with first degree attempted murder, but a judge found him not guilty by

reason of insanity and committed him to a treatment facility. After his

conditional release in July 2006, Mr. Thornhill moved to Tucumcari, New

Mexico, where sometime on or about November 13, 2006, he purchased a .223

caliber Olympic Arms rifle. He eventually turned the rifle over to his outpatient

counselor, who provided it to New Mexico authorities; they in turn contacted

agents with the United States Bureau of Alcohol, Tobacco and Firearms. After

federal government agents ascertained Mr. Thornhill was not in need of mental

health treatment, they arrested him for possession of a firearm by a person

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previously committed to a mental institution, after which an indictment issued,

charging him with violation of 18 U.S.C. §§ 922(g)(4) and 924(a)(2).



      Following his indictment, Mr. Thornhill pled guilty. A probation officer

prepared a presentence report calculating his sentence under the applicable United

States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer

set Mr. Thornhill’s base offense level at fourteen pursuant to U.S.S.G.

§ 2K2.1(a)(6)(A) for being a person prohibited from possession of a firearm at the

time of the offense. The probation officer then decreased his offense level by two

for acceptance of responsibility, resulting in a total offense level of twelve. The

presentence report also set Mr. Thornhill’s criminal history category at I, which,

together with an offense level of twelve, resulted in a recommended Guidelines

sentencing range of ten to sixteen months imprisonment. The presentence report

noted Mr. Thornhill’s recommended Guidelines range fell within Zone C of the

Guidelines sentencing table in Chapter 5, Part A, so that the minimum applicable

term of his sentence could be satisfied by either: (1) a sentence of imprisonment

under § 5C1.1(d)(1); or (2) a sentence of imprisonment which included a term of

supervised release that could be substituted with community confinement or home

detention under § 5C1.1(e), provided that at least one-half of the minimum term

was satisfied by imprisonment, as required under § 5C1.1(d)(2).




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      On October 23, 2007, Mr. Thornhill filed a formal sentencing

memorandum, which did not in any way contest the presentence report but merely

advised that the Guidelines sentencing range of ten to sixteen months was

“appropriate”; the government had recommended a sentence at the bottom of the

Guidelines range; and the split sentence under Zone C of the sentencing table, as

discussed in the presentence report, would allow Mr. Thornhill to receive mental

health counseling through programs available to him through a United States

Veterans’ Administration treatment center. Because Mr. Thornhill had already

served seven months incarceration since his arrest, he requested a sentence of ten

months incarceration, with the remaining three months to be served under home

confinement so he could receive the appropriate mental health treatment. In

support of his request, Mr. Thornhill summarily stated he had no prior criminal

convictions; a previous mental health evaluation found he could successfully

operate within a community-based treatment placement; and, as a former Marine,

he mistakenly believed he had the right to own a firearm, not understanding the

prohibition against such ownership after his prior mental institution commitment.

In his sentencing memorandum, Mr. Thornhill did not in any way object to the

presentence report or raise an argument contesting application of the Guidelines

in conjunction with a specific § 3553(a) sentencing factor. Likewise, the

government did not oppose Mr. Thornhill’s sentencing request and instead

recommended: (1) a sentence at the low end of the Guidelines range of ten

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months imprisonment; and (2) if he qualified, a split sentence.



      At the sentencing hearing, the following colloquy occurred between the

district court and Mr. Thornhill’s counsel: “The Court: Is there anything in the

presentence report you specifically wish to call to my attention? [Counsel]: Your

Honor, I submitted a sentencing memorandum, and I’ll just stand by my

memorandum. The Court: All right.” R., Vol. 4 at 2.



      Following this colloquy, the district court stated it had “reviewed the

presentence report factual findings and ... considered the sentencing guideline

applications and the factors set forth in 18 United States Code 3553(a)(1) through

(7).” Id. at 3. After determining the advisory Guidelines range was ten to sixteen

months, the district court sentenced Mr. Thornhill to sixteen months

imprisonment. In so doing, it stated that Mr. Thornhill “shall be designated to a

medical facility where he can undergo a psychiatric evaluation and treatment.”

Id. At the conclusion of the hearing, Mr. Thornhill’s counsel generally “note[d]

an objection to the sentence, especially with the recommendation of a split

sentence and minimum time.” Id. at 6.



                                  II. Discussion

      Mr. Thornhill’s first contention on appeal is based on his argument his

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sixteen-month sentence is procedurally unreasonable because the district court

failed to provide an explanation for imposing a sentence at the high end of the

Guidelines sentencing range. In support of this argument, he contends the district

court: (1) “did not note the parties’ arguments or their stipulation concerning the

appropriate sentence”; (2) “did not refer to any facts or law on which it relied”;

and (3) “did not explain–even in broad terms–why it rejected the government’s

recommendation and concluded that the sentence imposed was warranted.” Apt.

Br. at 5. In making his argument, Mr. Thornhill acknowledges his within-

Guidelines sentence does not require as much explanation as an outside-

Guidelines sentence would and concedes the standard of review is for plain error

because he did not object to the district court’s failure to explain his sentence.



      As Mr. Thornhill concedes, we review an alleged error raised for the first

time on appeal for plain error. See Fed. R. Crim. P. 52(b); United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1199 (10th Cir.), cert. denied, 128 S. Ct. 113 (2007).

“Plain error occurs when there is (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 judicial proceedings.” Id. (citation omitted).



      In determining if an error occurred, we recognize “[i]n sentencing, the

district court has a duty under 18 U.S.C. § 3553(c) to show it has considered the

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sentencing factors set forth in § 3553(a) ....” United States v. Tindall, 519 F.3d

1057, 1065 (10th Cir. 2008). “The sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, ___ U.S. ___, 127 S. Ct. 2456, 2468 (2007). On the other hand,

§ 3553(c) requires the court to provide only a general statement in explaining the

imposition of a sentence falling within the Guidelines range. See Ruiz-Terrazas,

477 F.3d at 1199. The Supreme Court has “made clear that a district judge is not

required to give an exhaustive list of reasons.” Tindall, 519 F.3d at 1065.

“Unless a party contests the Guidelines sentence generally under § 3553(a)–that is

argues that the Guidelines reflect an unsound judgment, or, for example, that they

do not generally treat certain defendant characteristics in the proper way–or

argues for departure, the judge normally need say no more.” Rita, 127 S. Ct. at

2468. Instead, “[a] one-sentence explanation accompanying a within-guidelines

sentence-in the absence of the need to address specific § 3553(a) arguments

brought to the district court’s attention-satisfies the district court’s duty to impose

a procedurally reasonable sentence.” Tindall, 519 F.3d at 1065.



      In this case, Mr. Thornhill’s sentence falls within the advisory Guidelines

range and he did not make a specific objection to the district court’s methodology

in calculating his sentence or otherwise raise any specific Guidelines objection or

                                          -7-
§ 3553(a) argument regarding calculation of his sentence for the district court to

address. Instead, he merely requested a sentence at the low end of the Guidelines

range. To the extent Mr. Thornhill contested calculation of his sentence with

regard to the § 3553(a) factors when he generally mentioned his lack of a prior

criminal record and need for mental health treatment, it is evident the district

court was aware of and considered these facts when it set his criminal history

category at I in calculating his Guidelines sentencing range and later ordered a

mental health evaluation and treatment. In addition, despite Mr. Thornhill’s

contentions otherwise, the district court did state the facts and law on which it

relied when it stated it had “reviewed the presentence report factual findings and

... considered the sentencing guideline applications and the factors set forth in 18

United States Code 3553(a)(1) through (7).” R., Vol. 4 at 3. Finally, we are

satisfied from a review of the record that the district court considered the parties’

pleadings requesting a split, low-end Guidelines sentence and rejected that

request when it imposed a higher Guidelines sentence. As a result, under the

circumstances presented, in which no specific objection to the presentence report

or calculation of the sentence occurred with regard to any § 3553(a) factor, the

district court’s general and brief explanation that it had considered the facts,

advisory Guidelines, and § 3553(a) factors in imposing the sixteen-month

sentence satisfied its duty to explain Mr. Thornhill’s sentence. Thus, no

reversible error occurred under our plain error analysis.

                                          -8-
      Next, we address Mr. Thornhill’s argument his sentence is substantively

unreasonable because his sentence is greater than necessary to achieve the

sentencing goals of 18 U.S.C. § 3553(a). In support of his contention, Mr.

Thornhill generally summarizes the § 3553(a) factors to be considered in

determining the length of a sentence and suggests a sentence at the low end of the

Guidelines range would be adequate to achieve the sentencing goals in his case

because his offense involved simple gun possession without the threat of

violence, and he needs treatment to combat his multiple mental health disorders.



      We review Mr. Thornhill’s argument under a deferential abuse of discretion

standard. See United States v. Smart, 518 F.3d 800, 802, 805-06 (10th Cir. 2008).

      Reasonableness review is guided by the factors set forth in 18 U.S.C.
      § 3553(a), ... which include the nature of the offense and
      characteristics of the defendant, as well as the need for the sentence
      to reflect the seriousness of the crime, to provide adequate
      deterrence, to protect the public, and to provide the defendant with
      needed training or treatment ....

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). If the

sentence is within the correctly-calculated Guidelines range, we may apply a

presumption of reasonableness. See id. at 1053-54; see also Rita, 127 S. Ct. at

2462, 2465. The defendant or the government may rebut this presumption by

demonstrating the sentence is unreasonable when viewed under the § 3553(a)

factors. See Kristl, 437 F.3d at 1054.


                                         -9-
      In this case, the district court correctly calculated the relevant Guidelines

range and sentenced Mr. Thornhill within that range, so his sentence is

presumptively reasonable. Moreover, nothing in the record otherwise indicates

Mr. Thornhill’s sentence length is substantively unreasonable under the

circumstances presented. Thus, we conclude the district court did not abuse its

discretion in imposing a sixteen-month sentence, and Mr. Thornhill has not

carried his burden in demonstrating his sentence is unreasonable under the

§ 3553(a) sentencing factors.



                                  III. Conclusion

      For these reasons, we GRANT Mr. Thornhill’s motion for expedited

consideration of his appeal and AFFIRM his sentence.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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