                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 24, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-2249
          v.                                             (D. of N.M.)
 CURTIS PAYNE,                                   (D.C. No. CR-08-2171-JCH)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Curtis Floyd Payne appeals the district court’s sentencing for his drug

offenses. The district court sentenced him to 262 months’ imprisonment, which is

at the bottom of the Sentencing Guidelines range for Payne’s criminal history and

offense level. Payne concedes that the district court correctly calculated the

Guidelines range, but argues the sentence nonetheless was procedurally and



      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
substantively unreasonable given the factors in 18 U.S.C. § 3553(a). Exercising

jurisdiction under 18 U.S.C. § 3742, we AFFIRM Payne’s sentence.

                                  I. Background

      Payne pleaded guilty to possession with intent to distribute 50 grams or

more of cocaine and cocaine base, and related conspiracies. Accounting for

Payne’s criminal history and his acceptance of responsibility for the crimes, the

district court calculated the Guidelines range as 262 to 327 months’

imprisonment. At sentencing, Payne asked the district court for a below-

Guidelines sentence of 10 years’ imprisonment—the statutory minimum—on

account of his obligations to his family. The district court stated that it had

considered the § 3553 factors, including Payne’s history and characteristics, and

sentenced him to 262 months’ imprisonment for the cocaine base (crack) offense,

to run concurrently with 240 months’ imprisonment for the cocaine (powder)

offense.

      On appeal, Payne argues the district court did not follow proper procedures

when sentencing him, and he claims the sentence was substantively unreasonable.

                                   II. Discussion

      We review “all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.”

United States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008) (quoting Gall v.

United States, 552 U.S. 38, 41 (2007)). “Our appellate review for reasonableness

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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.” Id. at 803. Objections to sentencing procedure

not made before the district court are reviewed for plain error. See United States

v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).

      A. Procedural Reasonableness

      Payne first agues that the district court did not adequately explain the

reasons behind his sentence. When a court issues a sentence within the properly

calculated Guidelines range, § 3553 requires the court to “state in open court the

reasons for [the] imposition of the particular sentence,” and, when the “range

exceeds 24 months, the reason for imposing a sentence at a particular point within

the range . . . .” 18 U.S.C. § 3553(c). We have held a within-Guidelines sentence

“requires the court to provide only a general statement” of its reasoning. Ruiz-

Terrazas, 477 F.3d at 1199.

      Although he did not object below, Payne now alleges the district court

erred by failing to address several of the § 3553 factors adequately, failing to

assess how Payne’s proposed mitigating factors such as his age and family

circumstances contribute to the sentence determination, and failing to state

specifically how the Guidelines sentence is reasonable. He does not object to the

Guidelines range calculation.




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      Although the district court did not provide extensive reasoning for its

sentencing decision, the court’s reasoning was sufficient. Our review of the

record shows Payne’s argument for a downward departure from the Guidelines

centered on § 3553(a)’s first factor—“the nature and circumstances of the offense

and the history and characteristics of the defendant.” In particular, Payne

contended his career offender status was unfair because he had received his prior

convictions within the previous seven years—presumably showing an only recent

lapse into crime—and he asserted he had a family to support financially and an ill

grandparent. Given Payne’s arguments, it was reasonable for the district court to

focus primarily on his “significant criminal history in seven years,” Aplt. App.,

Vol. 3 at 14, and “the fact that [Payne has] family members,” id. at 16.

      Furthermore, the court fulfilled its statutory duty when it acknowledged it

had considered the § 3553 factors. See Ruiz-Terrazas, 477 F.3d at 1201 (“Section

3553(a) imposes on the district court a duty to ‘consider’ a variety of important

sentencing considerations. But it nowhere imposes on the court a duty to address

those factors on the record . . . .”) A sentencing court’s failure to expressly

mention each § 3553 factor does not render the sentencing procedurally

unreasonable. See United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir.

2008) (quoting United States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005))

(“[A] district court need not ‘march through § 3553(a)’s sentencing factors,’ nor

do we ‘demand that the district court recite any magic words to show that it

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fulfilled its responsibility to be mindful of the factors that Congress has instructed

it to consider.’”) Here, the district court’s discussion of Payne’s criminal history

and family circumstances evidence a consideration of the § 3553(a) sentencing

factors, in addition to the district court’s specific assertion that it had considered

the factors.

      Finally, in context it is clear the district court found the Guidelines range

reasonable. The Supreme Court has stated when a district court imposes a within-

Guidelines sentence, no “lengthy explanation” is required because “the judge

[may] rest[] his decision upon the [Sentencing] Commission’s own reasoning” for

“typical” cases. Rita v. United States, 551 U.S. 338, 356–57 (2007). The district

court still can commit error even if it imposes a within-Guidelines sentence if the

court treats the Guidelines as mandatory. See Gall, 552 U.S. at 50. But the

district court here clearly referred to the Guidelines as “advisory,” Aplt. App.,

Vol. 3 at 15, and explained it had considered the § 3553(a) sentencing factors in

addition to the Guidelines.

      In sum, the district court did not commit procedural error.

      B. Substantive Reasonableness

      We also find Payne’s sentence was substantively reasonable. “A district

court abuses its discretion when it renders a judgment that is ‘arbitrary,

capricious, whimsical, or manifestly unreasonable.’” United States v. Muñoz-

Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quoting United States v. Byrne, 171

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F.3d 1231, 1235–36 (10th Cir. 1999)). We have held that within-Guidelines

sentences are entitled to a presumption of reasonableness. United States v.

Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). To determine the

substantive reasonableness of a sentence, we look to the totality of the

circumstances. Muñoz-Nava, 524 F.3d at 1146.

      Payne’s primary substantive argument concerns the disparity in sentencing

between crack and powder cocaine. Payne argues the sentencing disparity rebuts

the presumption of reasonableness of a within-Guidelines crack sentence, and in

this case his crack sentence was unreasonable. As the Supreme Court detailed in

United States v. Kimbrough, 552 U.S. 85, 94–100 (2007), until recently the

Guidelines treated crack cocaine 100 times more harshly than an equivalent

amount of powder cocaine. In 2007, the Guidelines were revised to reduce that

disparity. See id. at 100. Nonetheless, the Kimbrough Court held a district court

did not impose a substantively unreasonable sentence when it departed from the

Guidelines range for a crack offense. Id. at 109. The Court did not hold that the

Guidelines range for a crack offense was presumptively unreasonable let alone

per se unreasonable.

      The district court sentenced Payne to 262 months’ imprisonment, at the

bottom of the Guidelines range for his crack conviction. The court ordered Payne

to serve the crack sentence concurrently with the sentence of 240 months’

imprisonment for his powder cocaine conviction—that is, the crack conviction

                                         -6-
added 22 months to his prison sentence. Payne, moreover, had a series of recent

and serious offenses, including drug possession and distribution. We are

confident under these circumstances that the bottom-of-the-range sentence was

well within the district court’s discretion to impose.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM Payne’s sentence.

                                                     ENTERED FOR THE COURT

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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