                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 2, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 06-6269
          v.                                           (W .D. Oklahoma)
 D A MIO N D WA N G ILB REA TH,                    (D.C. No. 05-CR -201-F)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TACH A, Chief Circuit Judge, PO RFILIO and A ND ER SO N, 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.

      Damion Dwan Gilbreath was indicted for one count of possession of a

firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). After a



      *
        This order and judgment is not binding precedent except under the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.
jury failed to reach a unanimous verdict, a mistrial was declared. Prior to his

retrial, Gilbreath pled guilty to possessing a firearm, knowing or having

reasonable cause to believe it w as stolen, in violation of 18 U.S.C. § 922(j). H e

was sentenced to 108 months’ imprisonment, followed by three years of

supervised release. Gilbreath appeals his sentence, which we affirm.



                                  BACKGROUND

      On October 8, 2005, Joe Gaddis of H & G Auto Center in Oklahoma City,

Oklahoma, reported to an Oklahoma City police officer that there were problems

with gang members congregating at his business after hours. Gaddis also

indicated that he had learned that there was supposed to be a gang fight at his

business that night and he asked if police officers could disperse anyone lingering

around his business.

      Later that same evening, police officers saw between eight and twelve

people standing outside the H & G Auto Center. Because of the tip and the fact

that some of the members of the group were wearing clothing associated with a

known gang, the officers approached the group. As the officers approached,

Gilbreath left the group and began walking aw ay. As the officers got closer,

Gilbreath changed directions and walked to the back of a pickup truck, where he

reached underneath his shirt and then dropped an object on the bed of the pickup

truck. The officers heard a loud metallic bang as the object hit the truck bed.

                                          -2-
Believing that Gilbreath had just discarded a weapon, the officers ordered him to

put his hands up and not move. A loaded Hi-Point .40 caliber semiautomatic

pistol w as found in the pickup truck bed. Authorities then arrested Gilbreath.

They later discovered that the gun had been stolen.

      As indicated, Gilbreath ultimately pled guilty to one count of possession of

a stolen firearm, in violation of 18 U.S.C. § 922(j). In preparation for sentencing,

the United States Probation Office prepared a presentence report (“PSR”), which

calculated an advisory sentencing range under the United States Sentencing

Commission Guidelines M anual (“USSG ”) (2005). The PSR calculated

Gilbreath’s base offense level as twenty-four, because he had at least two prior

felony convictions for either a crime of violence or a controlled substance

offense. Pursuant to USSG §2K2.1(b)(4), the offense level was increased by tw o.

W ith a two-level downward adjustment for acceptance of responsibility,

Gilbreath’s total offense level was twenty-four. W ith a criminal history category

VI, the advisory Guideline range was 100 to 120 months.

      Gilbreath objected to the PSR, arguing that the “criminal history

computation assessing criminal history points for each crime is not an accurate

reflection of his criminal history.” Addendum to PSR at 22, R. Vol. 4. He

conceded that he was arrested and charged with felony drug possession on a

number of occasions between 1993 and 1995, along with several misdemeanor

charges for possession of marijuana, driving under the influence and/or while

                                         -3-
having a suspended license, and bail jumping. How ever, he argued that, because

they were all disposed of together in a single court proceeding in July 1996 which

resulted in a one-year sentence, the cases should be viewed as a “continuing

course of conduct.” Id. at 23. He further argued that a series of cases in 1998

and 1999 “involving the use and distribution of marijuana, and on one occasion

possession of Valium” also were resolved in a single judicial proceeding,

resulting in a ten-year sentence. Id. He thus argued that virtually all of these

cases were “related cases” under USSG §4A1.2, comment. n.3. Gilbreath argued

his criminal history category should be a V, not a VI.

      In response, the probation officer pointed out that the relevant USSG

provision states that “prior sentences are not considered related if they were for

offenses that were separated by an intervening arrest (i.e. the defendant is arrested

for the first offense prior to committing the second offense).” Id. at 24. The

probation officer accordingly stated that Gilbreath’s criminal history category was

correctly assessed as category VI.

      Gilbreath also argued that he should receive a departure or variance from

the advisory Guideline range because his “possession of the firearm [lasted] for

no more than a few minutes and the fact his criminal history is overstated.” Id.

The probation officer responded that Gilbreath clearly possessed the weapon no

matter how many minutes it encompassed, he clearly pled guilty to possession of




                                         -4-
the firearm, and he reiterated that Gilbreath’s criminal history category was

correctly calculated.

      At his sentencing hearing, Gilbreath conceded that the intervening arrests

rendered unavailable his argument that his prior convictions were related for

purposes of assessing criminal history points. He continued to argue, as he had in

his sentencing memorandum, that his criminal history category VI

overrepresented his actual criminal history and was grounds for a downward

variance. Gilbreath’s counsel argued “there were a number of arrests for

controlled substance violations, but . . . to the extent that there are ones that are

simply for possession, those are more evident of his drug problem at the time as

opposed to some sort of crime spree or preying on society.” Tr. of Sentencing

Hr’g at 6, R. Vol. 3.

      The court reviewed Gilbreath’s criminal history and made the following

observations:

      So he’s had nine felony prosecutions. Going by arrest dates in the
      felony cases, he has had nine opportunities to decide that he has seen
      the light. And the rationale really for the intervening arrest rule is
      that . . . as applied to this case, we don’t treat these cases as related
      cases for purposes of . . . Guideline 4A1.2 rather because he felt the
      long arm of the law nine different times when he was arrested nine
      different times.

      . . . He got arrested on all those separate times and kept on
      committing crimes, which certainly dissipates any tendency to regard
      him, either for purposes of Guideline 4A1.2 or otherwise as being
      less culpable.



                                           -5-
             I recognize that I do have the discretion to depart downward
      based on the argument that the actual facts as to his criminal history
      show that the technical calculation of his criminal history overstates
      the seriousness of his criminal history. Recognizing that I do have
      that departure, I decline to depart downward. I believe that his
      criminal history, as set forth in the presentence investigation report,
      is not only technically accurate, it is also entirely fair as a factual
      matter.

Id. at 11-12.

      Gilbreath’s counsel then argued for a downward variance or deviation

based upon the sentencing factors set forth in 18 U.S.C. § 3553(a). 1 He argued

that the nature of and circumstances surrounding the instant offense support a

downward variance, in that Gilbreath “possessed” the gun very briefly, he had a

very difficult childhood environment where he experienced early exposure to

gangs and gang activities, and that he is comm itted to helping raise his three

young children.

      The court then recited all the sentencing factors contained in § 3553(a) and

stated:




      1
       W e have recently explained the difference between a departure and a
variance from an advisory Guideline range:
      [W ]hen a court reaches a sentence above or below the recommended
      Guidelines range through application of Chapter Four or 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, No. 05-2279, 2007 W L 102977, at *5 n.1 (10th Cir.
Jan. 17, 2007).

                                         -6-
       Applying all those factors and giving appropriate weight to the
       United States Sentencing Guidelines on an advisory basis, the
       sentence I intend to impose is a sentence of 108 months of
       incarceration, which is toward the lower end of the guideline range.

              The reason for that . . . is adequately expressed by an analysis
       of the facts which brought this defendant to a total offense level of
       24 and a criminal history category of 6. I, for that reason, do not rest
       on the guidelines alone in determining that 108 months is an
       appropriate sentence in this case.

Id. at 24.

       Gilbreath appeals, arguing essentially the same argument he made to the

district court at sentencing: “W as the district court’s sentence of 108 months’

confinement reasonable in light of the temporary nature of the possession of the

firearm and the fact a criminal history category of V I overrepresented M r.

Gilbreath’s criminal history[?]” Appellant’s Br. at 1.



                                    D ISC USSIO N

       Since the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), the formerly mandatory federal sentencing Guidelines are now

advisory. “Post-Booker, we review sentencing decisions for reasonableness,

which has both procedural and substantive components.” Atencio, 2007 W L

102977, at *6. “In setting a procedurally reasonable sentence, a district court

must calculate the proper advisory Guidelines range and apply the factors set




                                          -7-
forth in § 3553(a).” Id. “A substantively reasonable sentence ultimately reflects

the gravity of the crime and the § 3553(a) factors as applied to the case.” Id.

      Because district courts continue to calculate a Guidelines sentence as part

of their determination of a reasonable sentence, “we continue to review the

district court’s application of the Guidelines de novo, and we review any factual

findings for clear error.” U nited States v. Townley, 472 F.3d 1267, 1275-76 (10th

Cir. 2007). W here a district court “correctly applies the G uidelines and imposes a

sentence within the applicable Guideline range, that sentence ‘is entitled to a

rebuttable presumption of reasonableness.’” Id. at 1276 (quoting United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam)). 2

      Gilbreath does not appear to make a procedural challenge to the district

court’s calculation of his sentence. He only challenges the 108-month term on

substantive grounds, given the circumstances surrounding the offense and his

allegedly overrepresented criminal history. W e conclude that Gilbreath has failed

to rebut the presumption of reasonableness accorded to his within-Guideline-

range sentence. The district court heard extensive argument, both written and

oral, from Gilbreath’s counsel on why a variance or departure was warranted.

The district court went through all the relevant factors and explained thoroughly

      2
        To the extent Gilbreath argues that his sentence is unreasonable in part
because the district court refused, in its discretion, to depart downward, we lack
jurisdiction over that claim. United States v. Chavez-Diaz, 444 F.3d 1223, 1229
(10th Cir. 2006). However, “we have jurisdiction post-Booker to review the
sentence imposed for reasonableness.” Id.

                                         -8-
why it did not believe that Gilbreath’s criminal history category overrepresented

his actual criminal history at all. Despite multiple arrests, charges and two prison

terms, Gilbreath continued to violate the law. M oreover, nothing in the

circumstances of the current offense, including the brevity of his possession of

the firearm, convinces us that the sentence is unreasonable. 3 Gilbreath

indisputably possessed the weapon, as he pled guilty to that crime. In short,

whether or not a presumption of reasonableness applies to the within-Guideline

range sentence, the sentence imposed in this case is reasonable, in light of all the

18 U.S.C. § 3553(a) factors. 4




      3
        W e have stated before that, in the context of a felon-in-possession
prosecution, “‘even if a felon held a firearm for a mere second or two, unless that
felon truly did not know that what he possessed was a firearm . . . § 922(g) w ill
still impose criminal liability.’” United States v. W illiams, 403 F.3d 1188, 1194
(10th Cir. 2005) (quoting United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir.
1999)). Gilbreath relies upon W illiams, in which we reversed a 210-month
sentence and remanded for resentencing. W illiams is factually distinguishable
from this case and presented a much more compelling case for resentencing than
does Gilbreath.
      4
       W e note that the Supreme Court has recently heard oral argument in two
cases which may impact the way we review sentences after Booker. See United
States v. Rita, 177 Fed. Appx. 357 (4th Cir.), cert. granted, 127 S. Ct. 551 (2006)
(No. 06-5754); United States v. Claiborne, 439 F.3d 479 (8th Cir.), cert. granted,
127 S. Ct. 551 (2006) (No. 06-5618).

                                         -9-
                         C ON CLU SIO N

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

                                       ENTERED FOR THE COURT


                                       Stephen H. Anderson
                                       Circuit Judge




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