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

                                    TENTH CIRCUIT                              April 1, 2011

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                No. 10-3126
                                                   (D.C. No. 2:09-CR-20109-KHV-1)
 v.                                                            (D. Kan.)

 JOSEPH G. MARKHAM,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.


       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).

       Joseph G. Markham pleaded guilty to one count of bank robbery, 18 U.S.C.

§ 2113(a), and was sentenced to 70 months’ imprisonment and 3 years’ supervised

release. On appeal, he argues that the district court abused its discretion in refusing to

       *This order and judgment is not binding precedent, except under the doctrines of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. Citation to
an order and judgment must be accompanied by an appropriate parenthetical notation –
(unpublished). 10th Cir. R. 32.1(A).
grant a downward variance from the applicable Sentencing Guidelines range because of

Mr. Markham’s bipolar disorder. Exercising jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we affirm.

                                     BACKGROUND

       On September 1, 2009, Mr. Markham drove to a commercial customer window at

a bank. Using t-shirts and dark glasses to mask his face, he handed the bank teller a note

that demanded cash and threatened that a bomb would be detonated in the bank and a

nearby school. The teller passed cash to Mr. Markham. Several other tellers activated

silent alarms to alert police of the ongoing robbery.

       Mr. Markham drove away, and bank officials provided the police with a

description of Mr. Markham’s vehicle. A police officer observed the vehicle and

attempted to initiate a traffic stop. A car chase ensued involving multiple traffic

violations. Mr. Markham eventually pulled into a parking lot and was taken into custody.

He admitted his crime to authorities.

       Mr. Markham pleaded guilty to bank robbery, a violation of 18 U.S.C. § 2113(a),

without benefit of a plea agreement. At his sentencing hearing, Mr. Markham presented

expert evidence that he suffers from bipolar disorder and argued that his reduced mental

capacity should be taken into account in imposing the sentence. After hearing the expert

testimony and defense counsel’s arguments as to why Mr. Markham’s bipolar disorder

should qualify him for a downward variance under the applicable factors outlined in 18

U.S.C. § 3553(a), the district court determined a variance was not appropriate. The
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district court judge stated:

              I’m satisfied from the expert testimony that the defendant had bipolar
              disorder at the time of this offense. I’m not particularly persuaded that it
              was a cause effect relationship between this offense or that the bipolar
              disorder contributed substantially to the commission of the offense. . . .
                     So I’m considering the evidence, but I’m rejecting it as a basis for a
              variance. . . .
                     . . . I’m also required to look at a lot of other factors under Section
              3553(a) of the sentencing guidelines. When I look at the overall record in
              this case, though, I don’t see any reason why the sentencing guidelines
              should not be applied.

Tr. of Sentencing Hr’g at 72-74, R. Vol. 2 at 75-77. The district court determined the

appropriate range under the Sentencing Guidelines as between 70 and 87 months and

sentenced Mr. Markham to 70 months’ imprisonment and 3 years’ supervised release.

                                      DISCUSSION

       Mr. Markham has presented one issue on appeal: whether his 70-month sentence

is substantively unreasonable given the effects of his bipolar disorder.1 “[S]ubstantive

reasonableness addresses 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).” United

States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (quotations omitted). “[W]e

review the reasonableness of sentencing decisions . . . under a deferential abuse-of-

       1
        Mr. Markham does not challenge procedural reasonableness, nor do we find any
procedural error. “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). The district court properly calculated
the Sentencing Guidelines range for Mr. Markham’s crime, did not treat the Guidelines as
mandatory or rely on clearly erroneous facts, considered the 18 U.S.C. § 3553(a) factors,
and adequately explained the sentence. See Gall v. United States, 552 U.S. 38, 51 (2007).

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discretion standard.” Id. (quotations omitted). Where, as in this case, the challenged

sentence is within the properly calculated Guidelines range, we presume the sentence is

reasonable. See United States v. Kristi, 437 F.3d 1050, 1054 (10th Cir. 2006) (per

curiam). “The fact that the appellate court might reasonably have concluded that a

different sentence would be appropriate is insufficient to justify reversal of the district

court.” Gall v. United States, 552 U.S. 38, 51 (2007).

       We accord this deference to the district court’s sentencing decisions because the

district judge “is in a superior position to find facts and judge their import under §

3553(a) in the individual case. The judge sees and hears the evidence, makes credibility

determinations, has full knowledge of the facts and gains insights not conveyed by the

record.” Id. (quotations omitted). Therefore, if “the balance struck by the district court

among the factors set out in § 3553(a) is not arbitrary, capricious, or manifestly

unreasonable, we must defer to that decision even if we would not have struck the same

balance in the first instance.” U.S. v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008).

       Mr. Markham chose multiple factors from 18 U.S.C. § 3553(a) to argue that, in

light of his mental illness, the district court failed to “be guided by the ‘parsimony

principle’—that the sentence be ‘sufficient, but not greater than necessary, to comply

with the purposes of criminal punishment as expressed in §3553(a)(2).’” United States v.

Martinez-Barragan, 545 F.3d 894, 904 (10th Cir. 2008) (quoting 18 U.S.C. § 3553(a)).

But the district court judge was “not particularly persuaded” that a connection existed

between Mr. Markham’s illness and crime. Tr. of Sentencing Hr’g at 72, R. Vol. 2 at 75.
                                              4
By virtue of the district judge’s finding of no causal connection, we cannot conclude that

he abused his discretion in finding no basis under the § 3553(a) factors to reduce the

sentence.

       Although we agree with Mr. Markham that the record could support a downward

variance based on mental illness, we cannot find that the district court’s contrary decision

was “arbitrary, capricious, or manifestly unreasonable.” Sells, 541 F.3d at 1239. The

district court judge heard the expert testimony and was in a better position than this court

to make judgments regarding credibility and the relative weight of the evidence. Nothing

in the record renders his conclusion regarding a lack of causal connection between the

crime and mental illness manifestly unreasonable. Thus it was reasonable for the district

court judge to weigh the relevant factors of 18 U.S.C. § 3553(a) and determine Mr.

Markham was not entitled to the downward variance.

                                     CONCLUSION

       For the foregoing reasons, the sentence is AFFIRMED.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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