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

                             FOR THE TENTH CIRCUIT                         August 30, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-1450
                                                 (D.C. No. 1:16-CR-00067-RM-1)
ROCKY ALLEN,                                                (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Rocky Allen pleaded guilty to tampering with a consumer product in violation

of 18 U.S.C. § 1365(a) and to obtaining a controlled substance by deceit or

subterfuge in violation of 21 U.S.C. § 843(a)(3) and (d)(1). At sentencing, Allen

argued that a comparison of sentences imposed on similar defendants in similar cases

compelled the district court, under 18 U.S.C. § 3553(a)(6), to vary downward from

the Guidelines range and to sentence Allen to 30 months’ imprisonment. Instead, the

district court varied upward from the Guidelines range and sentenced Allen to a

      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
prison term of 78 months. On appeal, Allen argues that the district court committed

procedural error in sentencing him. We disagree and affirm.

                                              I

       The convictions at issue in this appeal arose from Allen’s employment at Swedish

Hospital (Swedish). Allen wasn’t authorized to possess fentanyl—an opioid and

Schedule II narcotic. Nevertheless, on January 22, 2016, Allen filled a syringe with saline

and falsely labeled it with a sticker identifying its contents as fentanyl. He then entered an

operating room and, while the other medical personnel were preparing a patient for

surgery, took a syringe that was loaded with fentanyl and replaced it with the syringe

containing saline. Another hospital employee caught him in the act. Allen was HIV

positive. At a cost of over $800,000, Swedish contacted over 2,600 patients, offering

testing for HIV, Hepatitis B, and Hepatitis C.

       Based on this incident, the government charged Allen with tampering with a

consumer product in violation of § 1365(a) (count one) and obtaining a controlled

substance by deceit or subterfuge in violation of § 843(a)(3) and (d)(1) (count two).

Allen pleaded guilty.

       The district court calculated a total offense level of 24 and a criminal-history

category of I, yielding a Guidelines imprisonment range of 51 to 63 months. Allen

moved for a downward variance, arguing that to avoid unwarranted sentencing

disparities, the court should sentence him below the Guidelines range. In support, he

provided a comparative analysis of 19 cases involving health-care employees

convicted under § 1365(a) who had similar offense conduct, Guidelines ranges, and

                                              2
criminal histories. To compile this list, Allen searched for charges under § 1365(a) in

the nationwide ECF Pacer database, eliminated cases involving convictions under

§ 1365(a)(2) and (3) (which involve resultant serious bodily injury or death), and

eliminated cases in which defendants were originally charged under §1365(a), but

later pleaded guilty to only a lesser offense. Allen explained that a comparison of the

sentences in these cases, which ranged from diversion to 82 months, revealed that the

mean sentence was just under 18 months, and the median sentence was one year and a

day. And while Allen acknowledged his criminal conduct and the effect it had on

Swedish and its patients, he urged the court to consider, in mitigation, his success

while on pretrial release, his minimal criminal history, the severe physical and sexual

abuse he endured during his childhood, his service to his country in Afghanistan and

the trauma he experienced there, and his ongoing drug addiction and mental illness,

including Post-Traumatic Stress Disorder (PTSD). Allen proposed a 30-month

sentence. The government, conversely, moved for an upward variance and a sentence

of 120 months’ imprisonment.

       The district court acknowledged Allen’s statistical analysis. It noted that “the

whole concept of Federal sentencing is to be roughly within arm’s reach, if you would, of

others who are similarly situated.” R. vol. 3, 229. Noting that Allen’s Pacer methodology

was only one way to assess national sentencing practices, the court explained that it had

obtained data from the Sentencing Commission relevant to §1365(a) and the applicable

sentencing guideline, U.S.S.G. § 2N1.1. The district court noted that the takeaway from

that data was that courts often “don’t pay a whole lot of attention to” the applicable

                                             3
Guideline. R. vol. 3, 224. And the district court further noted that a Westlaw survey

yielded seven comparable cases in which the defendants received sentences significantly

longer than Allen’s calculated mean.

       Accordingly, the district court said it would “sentence [Allen] on the basis of the

facts in this case, and not be unduly influenced by the various mass of cases that exist

across the country.” Id. The district court emphasized that it had considered each of the

sentencing factors under § 3553(a). Specifically, it recognized the existence of a number

of mitigating factors, such as Allen’s childhood abuse, his military service, and his

PTSD. But countering these mitigating factors was the number of “breaks” Allen had

been given because of his PTSD, including a sentence reduction in military court and his

general discharge despite his military conviction. Id. at 307. The court noted its concern

that Allen recognized his PTSD only when it served to benefit him, instead of seeking the

help necessary to heal. Regarding Allen’s opioid addiction, the court pointed out that

Allen had “multiple opportunities to step away,” but instead persisted in repeatedly lying

and stealing fentanyl from the hospitals where he worked. Id. at 308. The court also

described the “massive collateral damage” caused to Swedish and its patients due to

Allen’s actions. Id. at 297, 309. And the court observed that Allen’s conduct

demonstrated a disdain for the welfare of others.

       Ultimately, after balancing the § 3553(a) sentencing factors, the court varied

upward from the Guidelines range by imposing a 78-month prison sentence on count

one and a concurrent 48-month sentence on count two. Allen appeals.



                                             4
                                             II

       On appeal, Allen raises a procedural challenge to the district court’s method of

calculating his sentence. A sentence is procedurally unreasonable “if the method by

which it is calculated is unreasonable.” United States v. Hall, 473 F.3d 1295, 1311

(10th Cir. 2007). When reviewing the method used to calculate the sentence, this

court reviews the district court’s legal determinations de novo. Id.

       Under § 3553(a)(6), a district court must consider “disparities nationwide among

defendants with similar records and Guideline calculations.” United States v. Verdin-

Garcia, 516 F.3d 884, 899 (10th Cir. 2008) (emphasis omitted). This factor recognizes

the “unquestioned” precept “that uniformity remains an important goal of sentencing.”

Kimbrough v. United States, 552 U.S. 85, 107 (2007). However, “disparate sentences are

allowed where the disparity is explicable by the facts on the record.” United States v.

Davis, 437 F.3d 989, 997 (10th Cir. 2006) (quoting United States v. Goddard, 929 F.2d

546, 550 (10th Cir. 1991)).

       Allen argues that the district court applied an incorrect, impossible-to-meet legal

standard when it calculated his sentence. He asserts that instead of comparing defendants

with “similar records and guideline calculations” as required under § 3553(a)(6), Aplt.

Br. 17 (quoting United States v. Franklin, 785 F.3d 1365, 1373 (10th Cir. 2015)), the

district court rejected Allen’s proffered comparison analysis, which included that

information. “[I]n effect,” Allen argues, the district court improperly required an

“identical” case for comparison purposes. Id. at 24.



                                             5
       True, the district court criticized the analysis Allen presented. And it rejected the

conclusion Allen argued that his analysis compelled. But as Allen admits, the district

court didn’t reject his comparative case analysis outright. Rather, the record reveals that

the district court considered the data and ultimately rejected Allen’s conclusion that it

compelled a sentence of 30 months of imprisonment. In doing so, the district court

considered its own research—research it collected using alternative methods—and

concluded that the sentences of comparable defendants were higher, lower, or the same as

what Allen proposed. Then, the district court weighed the facts supporting Allen’s

request for a downward variance and the government’s request for an upward variance.

Ultimately, the district court determined that an upward variance from the Guidelines

range was appropriate under the facts of Allen’s case.

       We find no error in this approach; the cases Allen cites didn’t compel the

district court to use a different procedure. Allen correctly points out that when a

defendant fails to offer enough information “for the district court to make a full

comparison under § 3553(a)(6),” Aplt. Br. 17, we regularly reject any argument that

the district court erred in not conducting this analysis. See Franklin, 785 F.3d at

1372-73 (affirming sentence in part because defendant provided 16 dissimilar cases

to support argument that sentence was unprecedented); United States v. Lewis, 594

F.3d 1270, 1276 (10th Cir. 2010) (finding no procedural error where district court

rejected defendant’s analysis listing 28 defendants convicted of similar crimes, but

failing to include those defendants’ offense levels, criminal histories, or offense

conduct); cf. United States v. Boneshirt, 662 F.3d 509, 519 (8th Cir. 2011) (affirming

                                              6
district court’s rejection of § 3553(a)(6) argument where defendant cited cases with

similar convictions without providing information about the specific conduct

involved). But nothing in these cases suggests that when a defendant does provide

sufficient data, the district court must (1) consider only those cases the defendants

cites or (2) adopt the methodology the defendant used to extrapolate a proposed

sentence from those cases.

      Under these circumstances, we conclude the method the district court used to

calculate Allen’s sentence was reasonable.

      Affirmed.




                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




                                             7
