                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         July 13, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 05-6255
          v.                                          (W .D. of Okla.)
 D EW A Y N E E. C HR ISTIA N SEN,                (D.C. No. CR -05-28-2-F)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      Defendant-Appellant Dewayne E. Christiansen appeals 180-month

concurrent sentences imposed after he was convicted of two counts of bank

robbery in violation of 18 U.S.C. § 2113(a). Christiansen argues that the district

court’s sentence w as unreasonable because it departed upw ard by six offense

levels after it concluded the United States Sentencing Guidelines (“Guidelines”)




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
did not adequately account for his extensive criminal history. The additional

offense levels increased Christiansen’s minimum sentence from 92 months to 151

months. Since the district court correctly applied USSG § 4A1.3 in deciding upon

a six-level upw ard departure, and Christiansen has failed to otherwise

demonstrate that his sentence is unreasonable, we AFFIRM .

                                  I. Discussion

      C hristiansen and co-defendant Taylor Garrison, Jr. were indicted on two

counts of bank robbery. After Christiansen pleaded guilty, the presentence report

calculated his criminal history category as VI and his offense level as 23, yielding

a Guideline range of 92–115 months for each robbery. The report noted that

Christiansen had an additional 27 felony convictions that were not used in the

criminal history calculation because of their age. At sentencing, the district court

determined that the G uidelines did not adequately account for Christiansen’s

criminal history. The court therefore invoked USSG § 4A1.3(a) 1 and departed

      1
          USSG § 4A1.3(a) provides as follows:
             (a) U PW ARD DEPARTURES.—
                    (1) STANDARD FOR UPW ARD DEPARTURE.— If reliable
                    information indicates that the defendant’s criminal history
                    category substantially under-represents the seriousness of the
                    defendant’s criminal history or the likelihood that the
                    defendant will com mit other crimes, an upward
                    departure may be warranted.
                    (2) TY PES OF INFORM ATION FORM ING THE BASIS FO R
                    UPW ARD DEPARTURE.— The information described in
                    subsection (a) may include information concerning the
                    following:
                                                                       (continued...)

                                          -2-
upward six levels in its calculation of the applicable G uideline sentence. This

resulted in an offense level of 29, which, when combined with Christiansen’s



      1
          (...continued)
                            (A) Prior sentence(s) not used in computing the criminal
                            history category (e.g., sentences for foreign and tribal
                            offenses).
                            (B) Prior sentence(s) of substantially more than one year
                            imposed as a result of independent crimes committed on
                            different occasions.
                            (C) Prior similar misconduct established by a civil
                            adjudication or by a failure to comply with an
                            administrative order.
                            (D) W hether the defendant was pending trial or
                            sentencing on another charge at the time of the instant
                            offense.
                            (E) Prior similar adult criminal conduct not resulting in
                            a criminal conviction.
                      (3) PROHIBITION.— A prior arrest record itself shall not be
                      considered for purposes of an upward departure under this
                      policy statement.
                      (4) DETERMINATION O F EXTENT OF UPW ARD
                      DEPARTURE.—
                            (A) IN GENERAL.— Except as provided in subdivision
                            (B), the court shall determine the extent of a departure
                            under this subsection by using, as a reference, the
                            criminal history category applicable to defendants whose
                            criminal history or likelihood to recidivate most closely
                            resembles that of the defendant’s.
                            (B) UPWARD D EPARTURES FROM CATEGORY
                            VI.— In a case in which the court determines that the
                            extent and nature of the defendant’s criminal history,
                            taken together, are sufficient to warrant an upward
                            departure from Criminal History Category VI,
                            the court should structure the departure by moving
                            incrementally down the sentencing table to the next
                            higher offense level in Criminal History Category VI
                            until it finds a guideline range


                                          -3-
criminal history category of VI, yielded a recommended Guideline range of

151–188 months. The court sentenced Christiansen to two concurrent terms of

180 months.

      Christiansen argued at sentencing and maintains on appeal that the district

court acted unreasonably when it imposed sentences of 180 months. Christiansen

contends that the district court should not have applied USSG § 4A1.3(a) and that

doing so resulted in a sentence unreasonable in light of the factors set forth at 18

U.S.C. § 3553(a).

      W hile w e have held that an “extreme divergence” from the applicable

Guideline range must be supported by “dramatic facts” in order to be reasonable,

we require only an “appropriate justification” w here the sentence is more

moderately separated from the Guideline recommendation. See United States v.

Cage, __ F.3d __, 2006 W L 1554674 (10th Cir. 2006) (reversing a non-Guidelines

sentence of six days for unreasonableness where the minimum advisory Guideline

sentence w as 46 months and the district court had already decided that a departure

under the Guidelines themselves would be inappropriate). M oreover, a sentencing

court “is not required to consider individually each factor listed in § 3553(a)

before issuing a sentence,” and we will “not demand that the district court recite

any magic words to show us that it fulfilled its responsibility to be mindful of the

factors that Congress has instructed it to consider.” United States v. Contreras-

M artinez, 409 F.3d 1236, 1242 (10th Cir. 2005). Nonetheless, we turn to a

                                          -4-
consideration of the § 3553(a) factors as they apply to Christiansen’s sentence to

determine whether they were properly taken into account by the district court.

      Section 3553(a)(1) mandates consideration of “the nature and

circumstances of the offense and the history and characteristics of the defendant.”

Here, Christiansen’s history and characteristics were plainly considered by the

district court when it decided to enhance under USSG § 4A1.3(a) in light of

Christiansen’s extensive criminal record. The next factor requires that the

sentencing court balance

      the need for the sentence imposed to: (A) reflect the seriousness of
      the offense, to promote respect for the law, and to provide just
      punishment for the offense; (B) to afford adequate deterrence to
      criminal conduct; (C) to protect the public from further crimes of
      the defendant; and (D) to provide the defendant with needed
      educational or vocational training, medical care, or other
      correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2). The district court concluded that Christiansen deserved a

higher sentence in light of this factor. His extensive criminal history

demonstrated a longstanding lack of respect for the law, his offense was of a

serious nature, prior convictions have obviously failed to deter him from criminal

conduct, and the public clearly required protection from Christiansen’s

demonstrated penchant for criminality.

      The next three factors mandate that the sentencing court consider the kinds

of sentences available, the applicable Guideline sentencing range, and any

pertinent policy statements in the Guidelines. 18 U.S.C. § 3553(a)(3)–(5). These

                                         -5-
factors were explicitly considered by the district court when it acknowledged the

initial G uideline range and decided that an enhancement pursuant to USSG

§ 4A1.3(a) was appropriate. The enhanced sentence is reasonable in light of these

factors for the same reason that the enhancement was itself appropriate under the

Guidelines: the Guidelines significantly under-represented Christiansen’s criminal

career.

      Finally, § 3553(a)(6) requires the district court be cognizant of “the need to

avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” Christiansen’s sentence is

undeniably disparate from the typical sentence imposed for bank robbery;

however, this factor cautions only against unwarranted sentence disparity.

Christiansen’s enhanced sentence was warranted by his exceptional criminal

record and the inability of the Guidelines to properly account for his criminal

history absent a USSG § 4A1.3(a) departure. Therefore, Christiansen’s sentence

is reasonable under this factor.

      In sum, a review of the relevant § 3553(a) factors discloses that the district

court did not impose an unreasonable sentence. 2

      2
        It is worth noting that Christiansen’s sentence was properly enhanced
under USSG § 4A1.3. As we have noted, the Guidelines, while advisory after the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005),
“‘represent at this point eighteen years’ worth of careful consideration of the
proper sentence for federal offenses’” and the Guidelines, “rather than being at
odds with the § 3553(a) factors, are instead the expert attempt of an experienced
                                                                       (continued...)

                                         -6-
                                 II. Conclusion

      For the foregoing reasons, we find Christiansen’s sentence to be reasonable

and AFFIRM the district court.

                                                    Entered for the Court



                                                    Timothy M . Tymkovich
                                                    Circuit Judge




      2
       (...continued)
body to weigh those factors in a variety of situations.” United States v. Terrell,
445 F.3d 1261, 1265 (10th Cir. 2006) (quoting United States v. M ykytiuk, 415
F.3d 606, 607 (7th Cir. 2005). The same can be said of those portions of the
Guidelines which explicitly provide for circumstances in which a departure may
be necessary in order to achieve a reasonable sentence.


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