                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               January 10, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-5049
          v.                                         (N.D. Oklahoma)
 DEMONTE BELL, a/k/a C-Grill,                (D.C. No. 4:11-CR-00094-JHP-2)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and MURPHY, Circuit Judges.




      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.

      Defendant and appellant, Demonte Bell, appeals the 100-month sentence

imposed on him following his plea of guilty to one count of conspiracy to kill a



      *
       This order and judgment is not binding precedent, except under the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.
person to prevent communication to federal law enforcement officers, in violation

of 18 U.S.C. §§ 1512(k) and 1512(a)(1)(C). Because we find the sentence

reasonable, and the district court did not err in declining to grant Mr. Bell a

downward variance, we affirm the sentence in this case.



                                 BACKGROUND

      Mr. Bell, along with co-defendant Phillip Summers, was charged by

indictment with (1) conspiracy to retaliate against a person providing information

to federal law enforcement officers, in violation of 18 U.S.C. §§ 1513(a)(1)(B)

and 1513(f); (2) conspiracy to kill a person to prevent communication to federal

law enforcement authorities, in violation of 18 U.S.C. §§ 1512(a)(1)(C) and

1512(k); (3) solicitation to commit murder, in violation of 18 U.S.C. § 373; and

(4) use of interstate commerce facilities in the commission of murder for hire, in

violation of 18 U.S.C. § 1958. 1 The remainder of the fifteen counts charged

Mr. Summers only.

      The essential elements of the criminal offense are as follows:

Mr. Summers plotted to have Tulsa Police Detective Michael Hull murdered.

Mr. Summers was angry with Detective Hull for a number of reasons. First, in

2004, Detective Hull had investigated and testified against Mr. Summers, who


      1
        Mr. Bell was actually named in four of the use-of-interstate-commerce-
facilities counts.

                                         -2-
was accused of committing a double murder (killing Ples Vann and his wife,

Shelly). Additionally, Detective Hull had investigated Mr. Summers and

Mr. Summers’ brother, Michael, which led to federal Racketeering Influenced and

Corrupt Organizations Act (“RICO”) charges against Mr. Summers and

culminating in a 252-month sentence for Mr. Summers. Finally, Mr. Summers

believed, albeit erroneously, that Detective Hull had been involved in the murder

of Mr. Summers’ sister.

      Mr. Summers was a high-ranking member of the Hoover Crips street gang.

He had been in prison since April 2010, awaiting a new trial on the Vann

murders. 2 In December 2010, Mr. Summers began asking a fellow inmate to

smuggle into the prison a cellular phone so Mr. Summers could communicate with

his associates outside the prison without being monitored by jail personnel. That

inmate eventually reported Mr. Summers’ request to the Bureau of Alcohol,

Tobacco and Firearms (“ATF”). In January 2011, ATF provided the inmate with

a cellular phone, which he gave to Mr. Summers. Law enforcement officials

monitored this cell phone, which was the primary means of communication

between Mr. Summers and defendant Bell.




      2
       Mr. Summers had been convicted in January 2008 of the Vann murders and
sentenced to death. On March 1, 2010, however, the Oklahoma Court of Criminal
Appeals reversed the conviction and remanded to case to the state district court
for a new trial.

                                        -3-
      Mr. Summers’ fellow inmate knew where Detective Hull lived because he

was accused of burglarizing the detective’s home. Mr. Summers and the inmate

discussed Mr. Summers’ plan to kill Detective Hull. The inmate told Mr.

Summers that he had an associate who could get the detective’s address and

complete the murder. This “associate” turned out to be an undercover Tulsa

Police detective.

      On January 25, 2011, Mr. Summers contacted Mr. Bell, using the monitored

cell phone. The two discussed the plot to kill Detective Hull. Mr. Summers

asked Mr. Bell to contact the “associate”/undercover detective and set up a

meeting so that Mr. Bell could see where Detective Hull lived. Mr. Bell

contacted the undercover detective.

      As it turned out, Mr. Bell failed to appear at the scheduled meeting with the

undercover detective. The detective informed Mr. Summers that he was unhappy

with Mr. Bell’s failure to appear. Mr. Summers then spoke to Mr. Bell and asked

him if there were other people Mr. Bell knew who would complete the killing.

Mr. Bell suggested that a Michael Lucas would be interested. Mr. Summers

contacted Mr. Lucas and discussed the murder conspiracy with him. Mr. Bell

gave the undercover detective Mr. Lucas’s phone number.

      On January 27, 2011, Mr. Bell was arrested for an unrelated crime.

Mr. Lucas was then unwilling to meet the undercover detective without Mr. Bell’s

presence. Later that day, the undercover detective called Mr. Summers to tell him

                                        -4-
(erroneously) that he, the undercover detective, had killed Detective Hull. Mr.

Summers informed his fellow inmate of this development, and asked where he

should send the payment for the completed job. Mr. Bell and Mr. Lucas were

subsequently arrested.

      Following his arrest, Mr. Bell began cooperating with Tulsa police

investigators. After initially pleading not guilty, Mr. Bell ultimately accepted a

plea agreement in which he pled guilty to one count—conspiracy to kill a person

in order to prevent communication to federal officers—and the remaining counts

against him in the indictment were dismissed. Mr. Bell admitted that he had acted

as an intermediary between Mr. Summers and the undercover detective and that

he knew he was facilitating a contract killing. Mr. Bell’s cooperation assisted law

enforcement authorities in getting Mr. Summers to plead guilty.

      Prior to sentencing, the government moved for a downward departure

pursuant to United States Sentencing Commission, Guidelines Manual (“USSG”)

§5K1.1 and 18 U.S.C. § 3553(e), based on Mr. Bell’s substantial cooperation.

Specifically, the government asked the district court to reduce Mr. Bell’s USSG

offense level from 33 to 27, which would decrease his advisory Guidelines

sentencing range from 188-235 to 100-125 months.

      Mr. Bell then moved for a downward variance, seeking to lower his total

offense level to 25. His argument was that his role in the conspiracy was very

similar to Mr. Lucas’s rule. Yet Mr. Lucas was permitted to plead guilty to a

                                         -5-
lesser crime than Mr. Bell with a lower offense level. He (Mr. Bell) further

argued that he should have the same total offense level of 25 as Mr. Lucas did.

      At the sentencing hearing, the district court granted the government’s

motion for a downward adjustment under USSG §5K1.1. Thus, Mr. Bell’s

offense level was 27 and the court sentenced him to 100 months’ imprisonment

(within the 100-125 advisory Guidelines range). The court further agreed with

the government that the disparity between Mr. Bell’s sentence and Mr. Lucas’s

sentence was warranted because Mr. Bell brought Mr. Lucas into the conspiracy.

Mr. Bell also had a more severe criminal history than Mr. Lucas. This appeal

followed, in which Mr. Bell challenges his sentence, arguing the district court

erred in denying his requested downward variance.



                                  DISCUSSION

      We review sentences for reasonableness under a deferential abuse-of-

discretion standard. See United States v. Alapizco-Valenzuela, 546 F.3d 1208,

1214 (10th Cir. 2008). “‘Reasonableness review is a two-step process comprising

a procedural and a substantive component.’” Id. (quoting United States v.

Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008). See Gall v. United States,

552 U.S. 38, 51 (2007). “Procedural review asks whether the sentencing court

committed any error in calculating or explaining the sentence.” Id. Substantive

review, on the other hand, “involves whether the length of the sentence is

                                        -6-
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. Conlan, 500 F.3d 1167, 1169 (10th Cir.

2007). A within-Guidelines sentence is entitled to a presumption of substantive

reasonableness on appeal, and a defendant must rebut this presumption by

demonstrating that the sentence is unreasonable in light of the other sentencing

factors laid out in § 3553(a). Rita v. United States, 551 U.S. 338, 347 (2007);

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

reviewing a district court’s sentence for substantive reasonableness under the

§ 3553(a) factors, we give substantial deference to the district court because it has

an unquestionable institutional advantage, involving greater familiarity with

individual cases and defendants, to consider whether the facts of the case justify a

variance under § 3553(a). Rita, 551 U.S. at 363; United States v. Balbin-Mesa,

643 F.3d 783, 788 (10th Cir. 2011).

      Mr. Bell concedes that “[t]here is no dispute that the district court properly

calculated the advisory guideline.” Appellant’s Br. at 9. He thereby appears to

waive any argument about procedural reasonableness, separate from his argument

(the only argument presented in this appeal) that the district court erred in not

granting him a downward variance.

      We review for an abuse of discretion the district court’s decision not to

grant a downward variance. United States v. Franklin-El, 554 F.3d 903, 914

(10th Cir. 2009); United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008)

                                          -7-
(“[W]hether any . . . disparity justifies a sentencing variance in a given case

raises a . . . question . . . of substantive reasonableness [which we review for an

abuse of discretion].”); United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.

2008).

         Mr. Bell’s basic argument is that he and Mr. Lucas engaged in nearly

identical conduct in the course of the conspiracy and that their sentences should,

therefore, be the same. 3 Any difference between their sentences, the argument

goes, amounts to an unwarranted disparity, prohibited by one of the 18 U.S.C.

§ 3553(a) sentencing factors: “The court, in determining the particular sentence

to be imposed, shall consider– . . . (6) the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.” 18 U.S.C. § 3553(a)(6).

         We have said that “[a]lthough a district court may consider sentencing

disparities between codefendants, ‘disparate sentences are allowed where the

disparity is explicable by the facts on the record.’” Haley, 529 F.3d at 1311

(quoting United States v. Davis, 437 F.3d 989, 997 (10th Cir. 2006)). The district

court stated as follows in denying Mr. Bell’s requested variance:

                The court recognizes its authority to vary from the advisory
         sentencing range called for by the application of the guidelines. In
         establishing an appropriate sentence for this defendant, the court has

         3
       Specifically, Mr. Bell asked for “a variance of eight levels to a total
offense level of 25, a variance guideline range of 84 to 105 months, and a
sentence of 84 months incarceration.” Tr. of Sentencing Hr’g, R. Vol. 2 at 18.

                                           -8-
      considered the nature of the offense of conviction and the
      defendant’s criminal history and personal characteristics.

             The court has already granted the government’s motion for a
      six-level downward departure in this case and defendant has received
      a four-level reduction in his offense level for being a minimal
      participant in the offense. The court is not persuaded by defendant’s
      argument that his applicable offense level being higher than that of
      Michael Lucas in the related case will result in an unwarranted
      sentencing disparity between him and Lucas.

             Despite his contention that his conduct is almost identical to
      that of Lucas, Mr. Lucas was brought into the conspiracy by the
      defendant, and therefore, would likely [have] had no involvement but
      for this defendant.

            Taking into consideration the defendant’s history and
      characteristics, as well as the nature and circumstances of the
      offense, need for just punishment, deterrence, protection of the
      public, the court cannot find that the circumstances in this case
      warrant a variance based on the sentencing factors cited in 18 U.S.C.
      Section 3553(a). Therefore, defendant’s request for variance . . . is
      denied.

Tr. of Sentencing Hr’g, R. Vol. 2 at 19-20. In so concluding, the district court

did not abuse its discretion.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                         -9-
