                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  May 19, 2011
                               TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                  Clerk of Court


 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 10-1560
 v.                                          (D.C. No. 1:08-CR-00458-MSK-3)
                                                       (D. Colorado)
 MANIKHONE SAIGNAPHONE, a/k/a
 Mani Saignaphone,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.



      On August 23, 2010, Defendant Manikhone Saignaphone pleaded guilty to

conspiracy to defraud the government. See 18 U.S.C. § 286. The United States

District Court for the District of Colorado sentenced her to 26 months’

incarceration. Defendant appeals the sentence. Although she characterizes her

argument on appeal as solely a challenge to the substantive reasonableness of her

      *
       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
ordered 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
sentence, parts of the argument are better characterized as challenges to

procedural reasonableness. We have jurisdiction under 28 U.S.C. § 1291 and

affirm. As for procedural reasonableness, the district court adequately considered

issues of disparity in sentencing and did not err in assessing Defendant’s

cooperation with the government. And her substantive-reasonableness challenge

fails because she has not overcome the presumption that her sentence, which was

below the sentencing-guidelines range, was not unreasonably long.

I.    BACKGROUND

      From January 28, 2005, to September 4, 2006, Defendant participated in a

conspiracy to submit false amended tax returns to the Internal Revenue Service

(IRS) and the State of Colorado Department of Revenue (CDR). The returns were

submitted on behalf of customers who paid a share of their tax refunds to the

conspirators. Defendant initially worked for Olympia Financial and Tax Services,

Inc. as a salesperson. She recruited customers by falsely claiming that Olympia

could “identify and legally claim deductions initially missed by the customers’

original tax preparer,” that Olympia employed tax professionals who were former

IRS employees and other uniquely qualified individuals, and that Olympia “was a

legitimate business in that it would only use legal methods and truthful

information” to amend returns. R., Vol. 1 at 40. Through this scheme, Olympia

generated over 700 false amended returns filed with the IRS and 400 false




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amended returns filed with the CDR, resulting in a total loss in taxes of

$2,757,744.

      In November 2005 the CDR began investigating Olympia, forcing it to

cease business by March 2006. But Defendant, along with two other Olympia

employees, Louann Savala and Jessica Arambula, continued the scheme by

starting another operation that used various names; we will refer to the operation

as MLM. MLM operated as Olympia did, and Defendant’s role again was to

solicit customers. By the time MLM ceased operation in September 2006, fifty

falsified amended returns had been filed with the IRS, resulting in a loss in taxes

of $232,633.

      At sentencing there was no dispute that Defendant’s guidelines sentencing

range was 37 to 46 months. The guidelines calculation included a three-level

reduction in her offense level for acceptance of responsibility and assisting the

investigation and prosecution. See USSG § 3E1.1. In addition, the government

moved for a 15% departure below the minimum of the guidelines range because

she had provided information to the government in the investigation and

prosecution of other persons. See id. § 5K1.1. The departure would result in a

31-month sentence. Defendant filed a sentencing memorandum requesting a

sentence within Zone C of the guidelines sentencing table, which encompasses

sentences between 10 and 18 months. See id. ch. 5, pt. A. The district court

granted the government’s motion for a departure and also granted a five-month

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downward variance, imposing a sentence of 26 months’ imprisonment and three

years of supervised release.

II.   DISCUSSION

      Although Defendant states that she is challenging only the substantive

reasonableness of her sentence, some of her arguments are better characterized as

challenges to procedural reasonableness. We address procedural reasonableness

before turning to substantive reasonableness.

      A.     Procedural Reasonableness

      First, Defendant contends that the district court did not adequately consider

sentencing disparities. She asserts that “[t]he disparity in sentencing between co-

conspirators in this case should not have been ignored.” Aplt. Br. at 6. Failure of

the district court to consider a sentencing factor set forth in 18 U.S.C. § 3553(a)

is a procedural error. See Gall v. United States, 552 U.S. 38, 51 (2007). One of

those factors is “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.”

18 U.S.C. § 3553(a)(6). We review sentences for procedural reasonableness

under a deferential abuse-of-discretion standard. See United States v. Begaye,

635 F.3d 456, 461 (10th Cir. 2011).

      There was no abuse of discretion here. The district court undoubtedly

considered whether its sentence would create an unwarranted disparity between




                                         -4-
coconspirators. 1 It said that it was “impressed by the need for avoiding

unwarranted discrepancies” in sentencing. R., Vol. 2 at 82. And it expressly

referred to the sentences of two of Defendant’s coconspirators, her sister Mindy

Saignaphone and Savala, but concluded that they “are sufficiently different that

they don’t present a discrepancy problem.” Id. We address in our substantive-

reasonableness discussion whether the district court’s resolution of the disparity

issue was an abuse of discretion.

      Second, Defendant argues that the district court did not give sufficient

consideration to the conflict of interest of her prior counsel when it “incorrectly

determined she did not fully cooperate with the government.” Aplt. Br. at 8. She

contends that because her prior counsel represented other defendants at the same

time that they represented her, she lost the opportunity to cooperate earlier. A

challenge to the district court’s fact finding is a challenge to procedural

reasonableness. See Gall, 552 U.S. at 51. Again, we review for abuse of

discretion and discern no abuse.

      The district court heard from both parties concerning the alleged conflict of

interest. The government pointed out (1) that the conflict-of-interest issue had

been raised in a pretrial motion that was denied; and (2) that while represented by


      1
       Moreover, this is not the sort of disparity that the sentencing court must
consider. “[Section] 3553(a)(6) does not require the sentencing court to compare
the sentences of codefendants; rather, it looks to uniformity on a national scale.”
United States v. Ivory, 532 F.3d 1095, 1107 (10th Cir. 2008).

                                         -5-
prior counsel, Defendant had been given an opportunity to make a statement to

the government but her statement was incomplete and untruthful. Defendant did

not challenge the government’s assertions but merely tried to excuse the

shortcomings in her statement as resulting from inadequate advice and preparation

assistance from counsel. On the record before us, the district court did not abuse

its discretion by taking into account Defendant’s failure to cooperate more fully

earlier in the investigation.

      B.     Substantive Reasonableness

      Defendant argues that her sentence was substantively unreasonable when

compared to those of her coconspirators. We review sentences for substantive

reasonableness under an abuse-of-discretion standard. See id. “When evaluating

the substantive reasonableness of a sentence, we afford substantial deference to

the district court, and determine 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. Alvarez-Bernabe, 626 F.3d 1161, 1167 (10th

Cir. 2010) (brackets and internal quotation marks omitted). As previously noted,

among those factors is “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.”

18 U.S.C. § 3553(a)(6). A sentence within the advisory guidelines range is

presumed to be reasonable. See Alvarez-Bernabe, 626 F.3d at 1167. In other

words, a within-guidelines sentence is presumed to be neither unreasonably harsh

                                          -6-
nor unreasonably lenient. A fortiori, a below-guidelines sentence, as here, is

presumptively not unreasonably harsh.

       Defendant focuses on the sentences of two coconspirators—Mindy

Saignaphone and Savala. Defendant’s sentence was 26 months’ incarceration.

Mindy’s was 8 months and Savala’s was 30 . Defendant contends that she should

have been treated more like Mindy and much more leniently than Savala. But the

district court reasonably decided otherwise. Unlike Mindy, Defendant continued

in a new fraudulent scheme after Olympia was shut down. And although Savala

had a higher criminal-history category than Defendant, she had provided

significantly greater cooperation than Defendant. Defendant has failed to

overcome the presumption that her sentence was reasonable.

III.   CONCLUSION

       We AFFIRM the judgment below.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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