                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 5, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff–Appellee,
                                                        No. 09-8010
 v.
                                              (D.C. No. 08-CR-00157-WFD-1)
                                                         (D. Wyo.)
 GARY DEAN BARKDOLL,

          Defendant–Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Gary Dean Barkdoll appeals his within-Guidelines sentence of 188 months’

imprisonment for possession of methamphetamine with intent to distribute.

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we

affirm.

                                         I

      Barkdoll pled guilty to possession of five grams or more of

methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),


      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
(b)(1)(B), and 846. He was arrested with approximately one ounce of

methamphetamine, which at 47% purity yielded twelve grams of

“methamphetamine actual.” Barkdoll’s presentence report (“PSR”) calculated a

base offense level of 26 for this quantity of drugs. However, because he qualified

as a career offender under United States Sentencing Guidelines (“U.S.S.G.”)

§ 4B1.1(a), the PSR calculated a base offense level of 37. Deducting three levels

for acceptance of responsibility, the PSR calculated a total offense level of 34.

Barkdoll’s extensive criminal history, beginning at age 16, and his status as a

career offender yielded a criminal history category of VI.

      At his sentencing hearing, Barkdoll successfully objected to the PSR’s

calculation of his offense level. The district court found that Barkdoll’s correct

total offense level was 31. Coupled with his criminal history category, Barkdoll’s

advisory Guidelines range was 188 to 235 months’ imprisonment.

      Seeking a downward variance, Barkdoll advanced two primary grounds for

leniency. First, he implored the district court to consider his short life

expectancy. Barkdoll was sixty years old at the time of sentencing and was

diagnosed with small cell carcinoma of the lungs in 1993. He was released from

federal prison that year on the belief that he had only six months to live. Second,

Barkdoll argued that his Guidelines range would have been 37 to 46 months’

imprisonment absent his career offender status and the relatively high purity of

the methamphetamine with which he was arrested. Barkdoll therefore requested a

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sentence of 87 months’ imprisonment. The government stated it would not “jump

up and down about” a small downward variance but opposed an 87-month

sentence. Considering the 18 U.S.C. § 3553(a) factors, the district court imposed

a sentence at the bottom of the advisory Guidelines range: 188 months.

                                         II

      Before this court, Barkdoll argues that his sentence is both procedurally

and substantively unreasonable. He contends the district court improperly

weighed the § 3553(a) factors by ignoring several considerations that counsel in

favor of a more lenient sentence, including his age, ill-health, cooperation with

law enforcement, and minor role in the drug world.

      We review criminal sentences for reasonableness, giving deference to the

district court under “the familiar abuse-of-discretion standard.” Gall v. United

States, 128 S. Ct. 586, 594 (2007). A sentence is procedurally unreasonable if the

district court committed a “significant procedural error,” such as treating the

Guidelines as mandatory, ignoring the § 3553(a) factors, or relying on clearly

erroneous facts. United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.

2008) (quotation omitted). A sentence is substantively unreasonable if its length

is unreasonable “given all the circumstances of the case in light of the factors set

forth in 18 U.S.C. § 3553(a).” Id. (quotation omitted). We presume that a

sentence within a properly-calculated Guidelines range is substantively

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

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      Our review of the record demonstrates that the district court carefully

considered the factors upon which Barkdoll relies, satisfying its procedural duties,

and imposed a substantively reasonable sentence. Given his criminal history, the

nature of the offense, and the surrounding circumstances, the district court acted

within its discretion in imposing a 188-month term of imprisonment. The court’s

thoughtful treatment of Barkdoll’s plea for leniency is worth repeating here:

      Mr. Barkdoll, when I picked up this file yesterday to take a look at it
      and start thinking about what I was going to do here today, I looked
      at your picture and I said, “Well, my goodness, what is a 75-year-old
      man doing using drugs?” And then to my shock, I read your date of
      birth. You’re two years younger than me, 60 years of age. So this is
      what your addiction—your enslavement to addiction has done to you.
      And I’m not indifferent to that, but at some point in time I have to
      put protection of the community above your liberty. I have no
      confidence that you would not create a continuing problem for law
      enforcement.

      Sadly, Mr. Barkdoll, you’ve thrown your life away, and I do find that
      pitiable, but I don’t think it warrants a lenient sentence. A judge’s
      mercy has to be tempered by common sense. It is my responsibility
      to fashion a sentence that is sufficient but not greater than necessary
      to meet the purposes of sentencing, and the uppermost in my mind is
      protection of the community. Quite simply, Mr. Barkdoll, enough is
      enough.

                                         III

      AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge

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