                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          March 3, 2009
                       UNITED STATES COURT OF APPEALS
                                                    Elisabeth A. Shumaker
                                                                           Clerk of Court
                                  TENTH CIRCUIT
                             __________________________

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                           No. 08-2078
                                                               (D. N.M.)
 STEVEN ELLERY SPRINGER,                          (D.Ct. No. 1:06-CR-01622-MCA-1)

           Defendant - Appellant.
                          ____________________________

                               ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and O’BRIEN, Circuit Judges.



       Steven Ellery Springer was sentenced to 240 months imprisonment, the

statutory maximum, after being convicted by a jury of knowingly engaging in

sexual conduct with a juvenile under the age of twelve. He appeals from his

sentence, claiming procedural and substantive error. We affirm.

                                   I. BACKGROUND

       On September 18, 2005, Jane Doe, a six-year-old girl, went to the carnival

at Laguna Pueblo, New Mexico, with her mother. Towards the end of the day,

       *
         This order and judgment is not binding precedent, except under the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
Doe went by herself to the game booth where Springer was working. Springer

had Doe kneel on the counter instead of standing in front of the game booth. Two

witnesses observed Springer put his hand between Doe’s legs and “rub her in her

vaginal area with his hand.” (R. Vol. III at 142.) One of the witnesses went to

find a law enforcement officer and the other observed Springer leading Doe away

from the game booth towards the exit. The witness saw Springer pinch or grab

Doe’s buttocks as Doe got off the counter. At trial, Doe testified Springer

“started touching me on my front part and back part, and that’s when he started

forcing me to walk with him before I could finish the game.” 1 (Id. at 99.) Doe

testified Springer was holding her “[a] little bit tight” and she “felt scared.” (Id.

at 104.) She testified Springer did not tell her where he was taking her but

mentioned something about a car.

      At approximately 7:50 p.m., one of the witnesses contacted two police

officers. The officers followed Springer and Doe and saw Springer “kind of

hugging” Doe and rubbing her back and buttocks. (Id. at 75.) One of the officers

stopped Springer as he was walking toward the parking area, an area that was “not

lit at all,” and asked him for his identification. (Id. at 78.) The officer testified

Doe looked “very scared” when he stopped Springer. (Id. at 81.) Springer was

arrested after he admitted he was a convicted sex offender, was not registered as a

sex offender in the State of New Mexico, and was prohibited from being in

      1
          Doe was seven years old when she testified.

                                           -2-
proximity to children.

       Springer was indicted on one count of knowingly engaging in sexual

conduct with Jane Doe, an Indian juvenile who had not attained the age of twelve,

in violation of 18 U.S.C. §§ 2244(a)(1), (c), 2246(c)(3) and 1152. Prior to trial,

the government learned Springer had previously pled guilty in North Carolina

state court to three counts of taking indecent liberties with a minor in violation of

N.C. Gen. Stat. § 14-202.1. 2 In that case Springer was sentenced to 40 to 48

months imprisonment and was released after approximately 4 years.

       At trial, the judge permitted testimony from two victims of Springer’s

North Carolina offenses pursuant to Rule 414 of the Federal Rules of Evidence.

A.B. testified that in June 1997, when she was eight years old, she visited her

grandmother and two female cousins, ages nine and seven, in North Carolina.

Springer was staying with A.B.’s grandmother at the time. For approximately two

weeks, Springer touched A.B. and her cousins inappropriately on a daily basis.

He touched A.B.’s breasts and vagina and A.B. saw Springer touch her cousins in

       2
        This statute provides in pertinent part:
      A person is guilty of taking indecent liberties with children if, being 16
      years of age or more and at least five years older than the child in question,
      he either:
             (1) Willfully takes or attempts to take any immoral, improper, or
      indecent liberties with any child of either sex under the age of 16 years for
      the purpose of arousing or gratifying sexual desire; or
             (2) Willfully commits or attempts to commit any lewd or
      lascivious act upon or with the body or any part or member of the body of
      any child of either sex under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a).

                                            -3-
the same manner. The touching stopped when one of the girls told one of their

mothers. The girls talked with each other “about how it was not right and how we

felt frightened by it.” (R. Vol. III at 125.) J.P., A.B.’s second cousin, testified

about the same June 1997 incident. She testified Springer touched her, her sister

and her cousin “in our pants under our under garments and under our shirts and on

our chests.” (Id. at 131.) J.P. remembered being touched in her vaginal area the

most.

        The jury returned a verdict of guilty. Following Springer’s conviction, the

probation officer prepared a presentence investigation report (PSR). 3 The original

version of the PSR determined Springer was subject to a mandatory life sentence

pursuant to 18 U.S.C. § 3559(e)(1) because he had previously been convicted of a

sex offense involving a minor. Springer objected to the application of §

3559(e)(1) on the ground that his North Carolina convictions did not constitute

prior sex convictions within the meaning of the statute applying the modified

categorical approach mandated by Taylor v. United States, 495 U.S. 575 (1990),

and Shepard v. United States, 544 U.S. 13 (2005). 4

        3
          The PSR used the 2006 version of the guidelines.
        4
          In United States v. Karam, we explained: “To determine whether a prior
conviction qualifies as a predicate offense for purposes of a sentencing enhancement, this
court must look initially ‘to the fact of conviction and the statutory definition of the prior
offense.’” 496 F.3d 1157, 1166 (10th Cir. 2007) (quoting Taylor, 495 U.S. at 602). “In
the context of a guilty plea, where the statutory language is not conclusive, this court may
look beyond the express language of the statute to the terms of the charging document,
the terms of a written plea agreement, a transcript of the plea colloquy, and other explicit
factual findings assented to by the defendant.” Id. (citing Shepard, 544 U.S. at 16 and

                                             -4-
      The probation officer agreed and prepared a revised PSR. The revised PSR

determined Springer’s base offense level was 20 pursuant to USSG §2A3.4(a)(1).

Springer was subject to a 4 level enhancement under §2A3.4(b)(1) because the

victim was under the age of twelve and a 5 level enhancement under §4B1.5(b)(1)

because Springer had engaged in a pattern of activity involving prohibited sexual

conduct. Springer’s total offense level was 29 and his criminal history placed

him in Criminal History Category II, resulting in an advisory guideline range of

97 to 121 months imprisonment.

      Springer objected to the revised PSR arguing he was not subject to the

enhancement under §4B1.5(b)(1) because he had not engaged in a pattern of

prohibited sexual conduct as defined in the guideline. The government argued

Springer was subject to a mandatory minimum sentence of life imprisonment

under 18 U.S.C. § 3559(e)(1) but, if the judge determined otherwise, it should

impose the statutory maximum of 240 months.

      The judge sentenced Springer to 240 months imprisonment followed by

supervised release for life. The judge explained her reasoning at Springer’s

sentencing hearing and in a twenty-eight page sentencing memorandum. The

judge first determined Springer was not subject to a mandatory minimum sentence

of life imprisonment because “as a matter of law . . . none of [Springer’s] North

Carolina convictions dating from 1997 qualify as a ‘prior sex conviction’ within

United States v. Smith, 433 F.3d 714, 718 (10th Cir. 2006)).

                                           -5-
the meaning of 18 U.S.C. § 3559(e)(2)(C).” 5 (R. Vol. I at 118.) In reaching this

result, she applied the modified categorical approach set forth in Taylor and

Shepard. She noted N.C. Gen. Stat. § 14-202.1 is not limited to instances of

sexual contact or sexual acts and thus, a violation of the statute would not

categorically constitute a prior sex conviction. The judge further determined she

could not rely on the testimony of A.B. and J.P. in determining whether Springer

engaged in sexual contact or sexual acts because the jury did not make any

specific findings regarding the facts underlying Springer’s prior convictions. And

she determined the judicial record concerning Springer’s prior convictions did not

reveal whether the crimes for which he was convicted involved sexual acts or

       5
            This statute provides: “A person who is convicted of a Federal sex offense in
which a minor is the victim shall be sentenced to life imprisonment if the person has a
prior sex conviction in which a minor was the victim . . . .” 18 U.S.C. § 3559(e)(1).
“[T]he term ‘prior sex conviction’ means a conviction for which the sentence was
imposed before the conduct occurred constituting the subsequent Federal sex offense, and
which was for a Federal sex offense or a State sex offense.” 18 U.S.C. § 3559(e)(2)(C).
“[T]he term ‘State sex offense’ means an offense under State law that is punishable by
more than one year in prison and consists of conduct that would be a Federal sex offense
if . . . the conduct occurred in any commonwealth, territory, or possession of the United
States . . . .” 18 U.S.C. § 3559(e)(2)(B)(ii). The term “Federal sex offense” is defined to
include an offense under 18 U.S.C. §§ 2241 (aggravated sexual abuse), 2242 (sexual
abuse) and 2244(a)(1) (abusive sexual contact). 18 U.S.C. § 3559(e)(2)(A). These
statutes require a “sexual act” or “sexual contact.” The term “sexual act” means, inter
alia, “the intentional touching, not through the clothing, of the genitalia of another person
who has not attained the age of 16 years with intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2)(D). “[T]he
term ‘sexual contact’ means the intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person.” 18 U.S.C. § 2246(3).


                                             -6-
sexual conduct.

      Though the PSR did not consider it, the judge concluded Springer was

subject to the enhancement set forth in USSG §4B1.5(a) because he committed

the instant offense subsequent to sustaining at least one sex offense conviction. 6

In arriving at this result, the judge determined that because the guidelines are

advisory, as opposed to mandatory, she could engage in judicial factfinding to

determine whether Springer’s prior convictions constituted sex offense

convictions within the meaning of the guideline. The judge “dr[e]w the

reasonable, common-sense inference that at least one of the North Carolina crimes

to which [Springer] pleaded guilty in 1997 falls within th[e] definition [of a prior

sex offense conviction].” (R. Vol. I at 125.)

      Applying §4B1.5(a), the judge determined Springer’s total offense level

was 32 instead of 29 and his Criminal History Category was V instead of II,

resulting in a guideline range of 188 to 235 months imprisonment. 7 In the

alternative, the judge held if §4B1.5(a) did not apply, Springer was subject to the

      6
         For purposes of this guideline, the term “sex offense conviction” means in
pertinent part “any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B), if the offense
was perpetrated against a minor.” USSG §4B1.5, comment. (n.3(A)(ii)). 18 U.S.C.
§ 2426(b)(1)(B) defines a “prior sex offense conviction” to mean a conviction for an
offense “under State law for an offense consisting of conduct that would have been an
offense under [18 U.S.C. §§ 2241, 2251 or 1591]” if the jurisdictional requirements were
met.
       7
         When a defendant is subject to the enhancement set forth in §4B1.5(a), his
Criminal History Category “shall be the greater of: (A) the criminal history category
determined under Chapter Four, Part A (Criminal History); or (B) criminal history
category V.” USSG §4B1.5(a)(2).

                                           -7-
5 level enhancement under §4B1.5(b), as determined by the PSR, resulting in an

advisory guideline range of 97 to 121 months.

      The judge granted the government’s request for an upward departure or

variance to the statutory maximum of 240 months. She stated this sentence was

appropriate whether the correct guideline range was 188 to 235 months or 97 to

121 months. She supported her ruling with a thorough discussion of the 18

U.S.C. § 3553(a) factors. Springer filed a timely notice of appeal.

                                II. DISCUSSION

      “After United States v. Booker, 543 U.S. 220 (2005), we review sentences

for reasonableness under a deferential abuse-of-discretion standard.” United

States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008) (citation

omitted). “Reasonableness review is a two-step process comprising a procedural

and a substantive component. Procedural review asks whether the sentencing

court committed any error in calculating or explaining the sentence. Substantive

review involves 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).”

Id. (quotations and citations omitted). Springer alleges procedural and

substantive error.

A. Procedural Error

      Springer contends the judge erred in calculating the advisory guideline

range because it did not apply a categorical or modified categorical approach in

                                         -8-
determining whether his North Carolina convictions constituted prior sex offense

convictions within the meaning of USSG §4B1.5(a). The government concedes

the judge committed procedural error but contends its error was harmless because

she stated she would impose the same sentence even if §4B1.5(a) was

inapplicable. 8

       Where a district court commits procedural error, we vacate the sentence

imposed unless the error was harmless. See United States v. Kaufman, 546 F.3d

1242, 1270 (10th Cir. 2008). “[H]armless error is that which does not affect the

district court’s selection of the sentence imposed, and the burden of proving

harmlessness is on the beneficiary of the error—here, [the government].” Id.

(quotations and citation omitted); see also United States v. Marshall, 432 F.3d

1157, 1162 (10th Cir. 2005) (explaining the party seeking to show harmless error

must demonstrate, by a preponderance of the evidence, that the judge would have

imposed the same sentence absent the error).

       This is not the first time we have considered whether a court’s alternative

       8
          We do not decide whether the court committed procedural error in engaging in
judicial factfinding to determine the applicability of USSG §4B1.5(a). This seems to be
the result suggested by case law from this and the Eighth Circuit. See United States v.
Maldonado-Lopez, 517 F.3d 1207, 1210 (10th Cir. 2008) (McConnell, J., concurring)
(“When a sentencing enhancement is framed in terms of the statute of conviction, the
categorical approach applies and the sentencing court must look not to the particular facts
of the prior conviction but to the terms of the underlying statute.”); United States v.
Lockwood, 446 F.3d 825, 827 (8th Cir. 2006) (applying modified categorical approach to
determine whether the district court erred in concluding defendant’s prior state conviction
constituted a prior sex offense conviction within the meaning of USSG §4B1.5).
However, we need not decide the issue because we determine any error was harmless.

                                            -9-
sentence renders its procedural error harmless. In United States v. Pena-

Hermosillo, the district court rejected two enhancements sought by the

government resulting in an advisory guideline range of 188 to 235 months instead

of 324 to 405 months. 522 F.3d 1108, 1111 (10th Cir. 2008). The judge varied

downward and imposed a sentence of 121 months, one month above the statutory

minimum for two of the four counts. After announcing its sentence, the judge

stated “the same sentence would be imposed even if the advisory guideline range

was determined to be improperly calculated.” Id. at 1111 (quotations omitted).

He explained the 121 month sentence was “the most reasonable sentence upon

consideration of all the factors enumerated in [18 U.S.C. § 3553].” Id. at 1117

(quotations and citation omitted).

      We held the district court did not sufficiently explain the reasons for

rejecting disputed enhancements and then considered the alternative sentence.

We found “procedural error even in the district court’s attempt to impose the

same sentence under an alternative rationale.” Id. We explained “the district

court’s cursory explanation for its alternative rationale . . . falls short of the

explanation necessary for sentencing under § 3553, especially where the variance

from the guideline range is as large as this.” Id. We stated “it is hard for us to

imagine a case where it would be procedurally reasonable for a district court to

announce that the same sentence would apply even if correct guideline

calculations are so substantially different, without cogent explanation.” Id.

                                           -10-
(emphasis added). We noted “we need not determine when, if ever, an alternative

holding based on the exercise of Booker discretion could render a procedurally

unreasonable sentence calculation harmless. We hold only that where the district

court offers no more than a perfunctory explanation for its alternative holding, it

does not satisfy the requirement of procedural reasonableness.” Id. at 1117-18

(emphasis added).

       Here, the district court’s explanation for its alternative sentence was

anything but cursory. It explained its reasoning in detail at Springer’s sentencing

hearing and in its sentencing memorandum. The judge justified her decision to

vary from the guidelines by considering the totality of circumstances under

§ 3553(a). 9 Specifically, she explained the 240-month sentence was justified

whether the guideline range was 188 to 235 months or 97 to 121 months because:

(1) Springer’s prior convictions were for prior sex offenses against children; (2)

the victim of the instant offense was only six years old and much smaller than


       9
          The judge did not specifically state whether it was departing or varying from the
guideline range. We have recognized that “[d]epartures and variances are analytically
distinct.” United States v. Martinez-Barragan, 545 F.3d 894, 901 (10th Cir. 2008).
“[W]hen a court reaches a sentence above or below the recommended guideline range
through application of Chapters Four and Five of the Sentencing Guidelines, the resulting
increase or decrease is referred to as a ‘departure.’ When a court enhances or detracts
from the recommended range through application of § 3553(a) factors, however, the
increase or decrease is called a ‘variance.’” United States v. Atencio, 476 F.3d 1099,
1101 n.1 (10th Cir. 2007). A full reading of the district court’s decision here indicates it
imposed a higher sentence based primarily on consideration of the § 3553(a) factors.
Thus, we treat the sentence as a variance, not a departure. See, e.g., Alapizco-Valenzuela,
546 F.3d at 1221-22.

                                            -11-
Springer; (3) Springer was an unregistered sex offender who purposefully took a

job providing him with access to children; (4) Springer was apprehended while

leading the victim towards a remote area, indicating an intent to engage in

additional, more serious sexual abuse; (5) Springer has a high likelihood of

recidivism as evidenced by the fact that his prior incarceration did not deter him

from committing the instant offense; (6) Springer needs long-term sex-offender

treatment; (7) a guideline sentence would not adequately represent the seriousness

of the crime; and (8) a guideline sentence would create an unwarranted sentencing

disparity between Springer and individuals convicted of similar prior sex offenses

against children.

      The Supreme Court held in Gall v. United States that “failing to adequately

explain the chosen sentence” is procedural error. 128 S. Ct. 586, 597 (2007).

Here, the judge did not fail to adequately explain the alternative sentence and we

need not engage in speculation or conjecture. This distinguishes this case from

Pena-Hermosillo, where the alternative sentence lacked “cogent explanation” and

was “no more than . . . perfunctory.” 522 F.3d at 1117-18. Though we could not

foresee it in Pena-Hermosillo, the alternative sentence here satisfies the

requirement of procedural reasonableness and renders harmless the assumed error

the court made in calculating Springer’s guideline range.

B. Substantive Error

      Springer also contends the sentence imposed is substantively unreasonable.

                                        -12-
He takes issue with the judge’s decision to sentence him to the statutory

maximum “no matter what the guideline range” and contends the 240-month

sentence is not reasonable because “[f]or the most part, the reasons upon which

the district court relied in sentencing [ ] [him] to the statutory maximum . . . were

accounted for in the guideline enhancements applied to his base offense level.”

(Appellant’s Opening Br. at 16, 29.) He also argues his sentence is unreasonable

in light of United States v. Huckins, 529 F.3d 1312 (10th Cir. 2008) (affirming

sentence of 18 months for defendant who pled guilty to one count of possession

of child pornography), United States v. Drewry, 365 F.3d 957 (10th Cir. 2004)

(pre-Gall, affirming sentence of 210 months for defendant who was convicted of

five counts of physical and sexual abuse of four children), and United States v.

Cramer, 414 F.3d 983 (8th Cir. 2005) (pre-Gall, affirming sentence of 235

months for defendant who pled guilty to one count of transporting a minor with

intent to engage in criminal sexual activity where the minor had been missing for

two years). The government contends the sentence is reasonable and reflects the

judge’s thorough consideration of the § 3553(a) factors.

      When, as here, the district court varies from the guideline range through

application of the § 3553(a) factors, “we simply consider whether the length of

the sentence is substantively reasonable utilizing the abuse-of-discretion standard.

We do not apply a presumption of unreasonableness to the sentence, and instead

must give due deference to the district court’s decision that the § 3553(a) factors,

                                         -13-
on a whole, justify the extent of the variance.” Alapizco-Valenzuela, 546 F.3d at

1216 (quotations and citation omitted).

      The judge did not abuse her discretion in varying upwards from the

guidelines to arrive at a sentence of 240 months. She did not say she would

sentence Springer to the statutory maximum regardless of the guideline range.

Rather, she stated a sentence of 240 months was warranted whether the guideline

range was 188 to 235 months or 97 to 121 months. Based on the facts presented,

this was not improper. Nor was it improper for the judge to rely on the same

facts to support both an enhancement and a variance. See id. at 1222-23. And we

are not troubled by the alleged disparity between the sentence imposed in this

case and the sentences imposed in Huckins, Drewry, and Cramer. The judge

noted Springer was spared a life sentence simply because the record of his North

Carolina convictions lacked specificity regarding the nature of his offenses. The

judge engaged in a thorough discussion of the § 3553(a) factors and her reasoning

reflects the fact she considered Springer “as an individual” and considered this

case “as a unique study in the human failings that sometimes mitigate, sometimes

magnify, the crime and the punishment to ensue.” Gall, 128 S. Ct. at 598

(quotations and citation omitted).

      AFFIRMED.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge

                                          -14-
