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

                            FOR THE TENTH CIRCUIT                            August 3, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-6178
                                                    (D.C. No. 5:18-CR-00173-D-2)
 KEEGAN REESE KRALL,                                        (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

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

      Keegan Krall appeals his 48-month sentence for aggravated assault resulting in

serious bodily injury. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

      At the time the events of this appeal transpired, Krall was serving a 51-month

sentence at a federal facility in Oklahoma for being a felon in possession of a

firearm. On May 26, 2018, joined by three other inmates, Krall assaulted another



      *
        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
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 This order and judgment is not binding precedent,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.
inmate. The injuries the victim sustained—“multiple lacerations and contusions on

the face and head, two broken ribs, and damage to [his] hearing”—necessitated

hospitalization and a three-day medically induced coma. Krall and the three other

inmates who participated in the assault were indicted for aiding and abetting one

another in an assault resulting in serious bodily injury under 18 U.S.C. §§ 113(a)(6)

and 2(a). Krall pled guilty to these charges without a plea agreement.

      The district court sentenced Krall to 48 months’ imprisonment, to be served

consecutively to his 51-month sentence. It also applied a five-point enhancement

under United States Sentencing Guidelines Manual § 2A2.2(b)(3)(B) because the

victim sustained “serious bodily injury,” and Krall had pled guilty to assault resulting

in serious bodily injury. Krall appeals the district court’s imposition of a consecutive

sentence and its application of the five-point enhancement.

                                           II

      We review a district court’s sentencing decision for reasonableness under a

deferential abuse-of-discretion standard. United States v. Haley, 529 F.3d 1308,

1311 (10th Cir. 2008). Under this standard, we will not reverse a sentence unless it is

“arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quotation omitted).

      “[R]easonableness review has two aspects: procedural and substantive.”

United States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019). “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,

                                           2
1307 (10th Cir. 2009). Substantive 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. Verdin-Garcia, 516 F.3d

884, 895 (10th Cir. 2008) (quotation omitted).

                                           A

      Krall challenges, on procedural reasonableness grounds, the district court’s

decision to issue a consecutive sentence. He contends that at the sentencing hearing,

the court failed to explain its reasons for imposing a consecutive sentence. But Krall

made no such objection below. He thus failed to alert the district court to his

argument on appeal—that the court failed to sufficiently explain its reasons for

concluding that a consecutive sentence fulfilled the goals of sentencing set forth in

§ 3553(a). See United States v. Garcia, 936 F.3d 1128, 1132 (10th Cir. 2019), cert.

denied, No. 19-7991, 2020 WL 3405900 (U.S. June 22, 2020) (issue preserved for

appeal only if “district court was adequately alerted to the issue” (quotation

omitted)). Accordingly, Krall has forfeited appellate review of that issue. See id.

      In similar circumstances, we generally may review a procedural

reasonableness objection for plain error. See United States v. Finnesy, 953 F.3d 675,

688 (10th Cir. 2020). But if a defendant also fails to argue for plain-error review on

appeal, “we ordinarily deem the issue waived (rather than merely forfeited) and

decline to review the issue at all.” United States v. Leffler, 942 F.3d 1192, 1196

(10th Cir. 2019). Krall did not argue for plain error review. Accordingly, he has

waived review of the district court’s decision to run his sentences consecutively.

                                           3
                                           B

      Krall also challenges the district court’s imposition of a five-point

enhancement for causing “serious bodily injury” under § 2A2.2(b)(3)(B). He does

not argue that the court misapplied that section of the Sentencing Guidelines. Rather,

he challenges the United States Sentencing Commission’s (the “Commission”) 2004

amendment to the Guidelines increasing by one point each of the special offense

characteristics relating to the various degrees of bodily injury. See U.S.S.G. app. C,

amend. 663 (U.S. Sent’g Comm’n 2004). Krall contends that the Guidelines, as

amended in 2004, violate § 3553(a), and so the district court also violated the statute

by applying the post-2004 Guidelines.

      This argument lacks merit. Krall asserts that the goals of sentencing with

respect to aggravated assault are the same now as they were before 2004; thus, the

2004 amendment’s one-point increase for aggravated assaults resulting in serious

bodily injury is “greater than necessary” to achieve the goals of sentencing set forth

in § 3553(a)—the statute’s so-called “parsimony principle.” United States v. Smith,

756 F.3d 1179, 1183 (10th Cir. 2014). But Krall ignores that the 2004 amendments

also decreased by one point the base offense level for aggravated assault. See

U.S.S.G. app. C, amend. 663. Thus, Krall’s total offense level would be the same

both before and after 2004, and he does not argue that if he were sentenced before

2004, his sentence would have been “greater than necessary” to achieve the goals of




                                           4
sentencing. Because Krall offers no other reason in support of his assertion that the

2004 amendments violate § 3553(a)’s parsimony principle, we reject this argument. 1

       Krall also argues that because the Commission did not rely on research or

empirical evidence in making the 2004 amendments to the aggravated-assault

guidelines, those amendments are “wholly arbitrary.” Correlatively, because the

district court followed the amended guidelines, Krall argues its decision was also

arbitrary and an abuse of discretion. But the Commission did rely on empirical

research and data in making the amendments applicable to his sentence. For

instance, “[t]he Commission . . . amended the [aggravated-assault] guideline to

decrease the base offense level from level 15 to level 14, based upon information

received from the Native American Advisory Group and studies indicating that

federal aggravated assault sentences generally are more severe than many state

aggravated assault sentences.” U.S.S.G. app. C, amend. 663 at 12. Krall does not

argue that the research conducted by the Commission was inadequate or insufficient

to justify the 2004 amendments. He simply ignores it.

      In any event, Krall’s argument appears to rely on a misreading of the Supreme

Court’s decision in Kimbrough v. United States, 552 U.S. 85 (2007), in which the

Court upheld a district court’s decision to impose a below-guidelines sentence on a


      1
        Without citation, Krall argues that the purposes of sentencing set forth in
§ 3553(a) reflect “broad philosophies of punishment in American jurisprudence” that
“allow for the logical and reasonable suggestion that sentences ought to have more
parity across time as well.” Because this argument is insufficiently briefed, it is
waived. See Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007) (arguments
presented “without supporting analysis and case law” are waived).
                                          5
defendant who pled guilty to charges relating to the possession and distribution of

crack cocaine. Id. at 91-93. The Court recognized that in adopting a statutory

requirement treating each gram of crack cocaine as equivalent to one-hundred grams

of powder cocaine, the Commission deviated from its “characteristic institutional

role” to formulate sentencing standards based on “empirical data and national

experience.” Id. at 109 (quotation omitted). Based on this and other considerations,

the Court concluded that the district court did not abuse its discretion in refusing to

apply the 100-to-1 crack/powder ratio to Kimbrough’s sentence upon concluding that

such application would yield a sentence “greater than necessary” to achieve the goals

of sentencing provided in § 3553(a). Id. at 110.

      Contrary to Krall’s argument, Kimbrough did not state that when the

Commission fails to conduct research in support of a Guidelines amendment, its

decision is “wholly arbitrary.” Rather, Kimbrough recognized that the lack of

empirical support for a Guidelines recommendation is but one factor the district court

may consider in choosing to deviate from the Guidelines. Thus, the district court in

the present case was not required to depart downward from the post-2004 Guidelines

even if they were not supported by empirical research. To the contrary, we have held

that a district court does not err in declining to depart from a within-guidelines

sentence when the applicable guidelines are not based on empirical research or

data—as was the case for the 100-to-1 crack/powder cocaine disparity. See United

States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007) (“[A] district court does not

err by refusing to depart or vary downward based on the Guidelines’ disparate

                                            6
treatment of crack and powder cocaine.” (citation omitted)).

      Accordingly, we hold the district court did not abuse its discretion in applying

the five-point enhancement to Krall’s sentence.

                                         III

      AFFIRMED.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




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