                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       April 24, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

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

          Plaintiff-Appellee,
                                                        No. 06-4193
 v.                                             (D.Ct. No. 2:05-CR-931-TC)
                                                         (D. Utah)
 C ARL LYN N H OPK IN S, also known
 as Carl Hopkins,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant Carl Lynn Hopkins pled guilty to one count of being a convicted

      *
         This order and judgment is not binding precedent except under the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.
domestic violence offender in possession of a firearm and ammunition in

violation of 18 U.S.C. § 922(g)(9). He now appeals his forty-six-month sentence,

challenging the district court’s grant of an upward departure, its denial of his

request for a downward departure, and the reasonableness of his sentence

pursuant to 18 U.S.C. § 3553(a). W e lack jurisdiction to review the denial of the

request for a downward departure and otherwise exercise jurisdiction pursuant to

18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 for the purpose of affirming M r.

Hopkins’s conviction and sentence.



                               I. Factual Background

      On December 10, 2005, police officers responded to an aggravated

dom estic violence incident at M r. Hopkins’s home. M r. Hopkins’s wife and two

stepsons reported M r. Hopkins stabbed one stepson, discharged a handgun tow ard

all of them through the front door, and threatened them w ith violence. According

to the injured stepson, he and M r. Hopkins were arguing when M r. Hopkins yelled

he was going to get his gun. Both stepsons stopped M r. Hopkins from leaving

through the front door. M r. H opkins then went into the kitchen, grabbed two

knives, and stabbed one stepson in the stomach; he also followed the same

stepson into the kitchen and continued to attempt to stab him. M r. Hopkins then

left the house but immediately returned and shot at the door. Police recovered a

.40-caliber bullet just inside the front door and a spent casing on the front porch.

                                          -2-
      Police stopped M r. Hopkins in his vehicle and, following his arrest, found

two butcher knives and a .40-caliber handgun in his vehicle. After receiving a

M iranda warning, M r. Hopkins talked about the stabbing, admitting he “stuck”

one stepson with the knife and stating, “I w anted him to move, and he did, so it

worked. I hoped it would hurt him.” R., Vol. 3 at 2-3 (¶¶ 5, 9). He also stated

he fired a round through the door “like John W ayne does in the movies,” and “[i]f

I could of seen any of the fuckers, I would have shot them, but I couldn’t.” Id. at

2 (¶ 5). Later, during his booking, M r. Hopkins also stated, “If I would have

known it would come to this, I would of killed all the fuckers. I mean it’s the

same in the end, isn’t it?” and “If I got out of here now, shouldn’t I just go back

and shoot every one of them?” Id. at 2 (¶ 6).



                             II. Procedural Background

      After M r. Hopkins pled guilty to one count of being a convicted domestic

violence offender in possession of a firearm and ammunition in violation of 18

U.S.C. § 922(g)(9), the probation officer prepared a presentence report providing

information on M r. Hopkins’s offense conduct and prior criminal history and

calculating his sentence under the applicable United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”). The probation officer: 1) set his base offense level

at fourteen pursuant to U .S.S.G. § 2K2.1(a)(6) because M r. Hopkins qualified as a

person prohibited from possession of a firearm; 2) increased his base level four

                                          -3-
levels pursuant to U.S.S.G. § 2K2.1(b)(6) for use or possession of a firearm or

amm unition in connection with his offense of aggravated assault; and 3) reduced

his offense level by three levels for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1, resulting in a total offense level of fifteen.



      In calculating M r. Hopkins’s criminal history, the probation officer pointed

out M r. Hopkins possessed three prior misdemeanor convictions, for a total of

four criminal history points and a criminal history category of III. These

convictions included: 1) a 1996 misdemeanor conspiracy conviction, which under

U.S.S.G. § 4A1.1 added one criminal history point; 2) a 1998 misdemeanor

conviction for discharging a weapon where a person might be endangered, when

M r. H opkins discharged a firearm at his wife, 1 which under § 4A1.1 added two

criminal history points; and 3) a 2000 misdemeanor simple assault conviction in

which his wife reported he “beat the hell” out of her by grabbing her hair,

throwing her to the ground, kicking her in the face, and beating her, which added

one more criminal history point under § 4A1.1. M r. Hopkins’s criminal history

category of III, together with an offense level of fifteen, resulted in an advisory

Guidelines sentencing range of twenty-four to thirty months imprisonment.




      1
        During the same incident, after discharging the gun M r. Hopkins also
pointed the weapon at his wife’s head, but the gun failed to fire.

                                          -4-
      The probation officer also outlined M r. Hopkins’s numerous health

problems, including the fact he takes five medications a day and suffers from: 1)

congestive heart failure following three heart attacks and the implant of a

defibrillator and stents; 2) a pancreatic condition; 3) post-traumatic stress disorder

related to his service in Vietnam; 4) depression; 5) alcoholism; 6) passing out;

and 7) headaches. The probation officer also outlined other factors w hich could

warrant a departure from the applicable Guidelines range, including the

possibility his criminal history, pursuant to U.S.S.G. § 4A1.3, under-represented

both the seriousness of his past criminal conduct and the likelihood he would

comm it other crimes and the fact he discharged the firearm in commission of the

offense, which, under § 5K2.6, 2 could warrant an increase. The probation officer

also pointed out M r. H opkins committed multiple assaults with tw o weapons (i.e.,

the knife and firearm), but only one aggravated assault was included in

calculating the offense level and no enhancement was added for either the

discharge of the weapon or the actual stabbing injury to M r. H opkins’s stepson.



      Other than one clarification, neither party filed objections to the

presentence report. However, prior to sentencing each party filed a motion for

departure. The government filed a motion for an upward departure based on: 1)

      2
        The presentence report inadvertently refers to § 5K2.7, rather than
§ 5K2.6, which is the provision suggesting discharge of a firearm might warrant a
substantial sentence increase.

                                          -5-
the under-representation of M r. Hopkins’s criminal history due to his previous,

repeated violent attacks on his spouse in the presence of his stepsons and the

likelihood he would re-offend against the same family members; 2) his violent

conduct toward family members during the instant offense which, but for

providence, could have resulted in a more tragic event; 3) his alarming statements

and lack of remorse following his arrest; and 4) the fact only one assault in the

current incident was taken into account in the offense level and no enhancement

was added for the discharge of the weapon or the actual stabbing injury.



      In turn, M r. Hopkins filed a motion for a downward departure under

U.S.S.G. § 5H1.1 based on his age of fifty-nine and also under U .S.S.G. § 5H1.4

for his poor medical condition. In support, M r. Hopkins elaborated on his

medical problems, as outlined in the presentence report, and added that he also

suffers from hyperlipidemia and anxiety and is likely to have a short life

expectancy based on his combination of health problems. He also attached six

medical admission notes to substantiate his health problems. He argued these

combined factors warranted a downward departure resulting in a sentence below

the advisory Guidelines range.



      At the sentencing hearing, M r. Hopkins’s counsel renew ed his request for a

downward departure, reiterating the same arguments and suggesting a sentence of

                                         -6-
eighteen months would be sufficient under the circumstances presented. In turn,

the government renewed its request for an upward departure and requested a

sentence between forty-one and fifty-one months imprisonment. During the

discussion of his medical problems, the district court actively participated in the

colloquy, noting M r. Hopkins’s heart problems involved the need for a

defibrillator and agreeing his incarceration would entail “a lot” of medical care.

The district court also acknowledged M r. Hopkins made “some very compelling

arguments” concerning his request for a downward departure based on his age,

health, and short life expectancy.



      In addition, the district court participated in a colloquy with both M r.

Hopkins and his counsel concerning his prior criminal history of three

misdemeanors, including the previous misdemeanor conviction for discharge of a

firearm toward his wife, which M r. Hopkins told the district court occurred

because he threw the firearm down on the ground. W hile admitting he possessed

some anger management problems, M r. Hopkins and his counsel also suggested

the description of the instant offense, including the superficial stabbing wound to

his stepson, was overstated.



      In response, the district court judge explained what he found “most

persuasive” and relevant for an “upward departure” were the statements made by

                                         -7-
M r. H opkins at his booking; i.e., “If I w ould have known it w ould come to this, I

would of killed all the fuckers. I mean it’s the same in the end, isn’t it?” and “If I

got out of here now, shouldn’t I just go back and shoot every one of them?” R.,

Vol. 2 at 12-13; Vol. 3 at 2 (¶ 6). After reciting these statements, the judge noted

they were alarming and indicated extreme danger because they occurred after M r.

Hopkins had time to cool down. M r. Hopkins then provided the district court his

explanation for stabbing his stepson, which he premised, in part, on their past

difficulties with each other, including his stepson’s own threatening and physical

behavior and disobedience tow ards him and his mother, as w ell as his stepson’s

large physical size and the fact the other stepson possessed a gun when the

incident occurred. In response, the district court judge made the following

statement:

      I really understand and I sympathize with your health problems. I
      don’t happen to think you’re very old, but that’s perhaps just my
      point of view. However, listening to you here today, I don’t see a
      whole lot of remorse. And then reading the description of this
      incident, which I’ll accept that your stepson is a larger man with his
      own violent tendencies, your response of jabbing him in the stomach
      and then shooting through the door when you say that you were just
      trying to get out, and then you shoot to get in, and your comments
      that you made at booking, all tie in with your history, particularly
      paragraphs 22 and 23, 3 where I frankly wonder about the story that
      the gun just flew through the air. I think you are a very dangerous
      man, and the danger extends mainly to your w ife and family.

      3
         These paragraphs in the presentence report pertain to: 1) the 1998
incident where M r. Hopkins discharged a firearm at his wife and then pointed the
gun at her head, but the gun failed to fire; and 2) the 2000 incident in which M r.
Hopkins’s wife reported he “beat the hell” out of her.

                                          -8-
R., Vol. 2 at 16-17.


      The district court then imposed the sentence, stating:

      I think that now that we’re on a level 15, with criminal history three,
      that an appropriate departure is two over to a 37, 46. 4 And I believe
      that for the reasons I’ve just stated, that a commitment and sentence
      of 46 months is appropriate. A nd it really will serve, I hope, to
      protect the community, most particularly your loved ones, or at least
      those who are within your family, from you, and perhaps you from
      your own violence.

      I do strongly recommend, however, that you be placed in an
      institution where you can receive your needed medical care. And
      that before you are placed anywhere, that you be evaluated for your
      medical needs.

Id. at 17. In imposing the sentence, the district court also directed M r. Hopkins to

participate in domestic violence and alcohol treatment programs.



                                  III. Discussion

      On appeal, M r. Hopkins argues the upward departure increasing his

sentence above the Guidelines range is unreasonable because he only had three

misdemeanor convictions and the aggravating factors involved in his instant crime

were fully accounted for in assessing a four-level increase in his offense level.

In addition, he contends the district court should not have given significant

weight to his statements following the incident because they did not imply a

      4
         An offense level of fifteen, together with a criminal history category of
V, results in a Guidelines range of thirty-seven to forty-six months imprisonment.
See U.S.S.G. ch. 5, pt. A (Sentencing Table).

                                         -9-
current threat, were made almost contemporaneously with his arrest, and the

district court seemed to acknowledge they may have risen from his mental health

issues. He also suggests his statements to the district court at sentencing should

not warrant a significant increase as he was trying to explain he felt threatened by

his stepsons at the time of the instant offense and did not intend to shoot anyone.

Finally, M r. Hopkins argues the district court inappropriately failed to weigh his

undisputed and significant health problems which should have been considered as

mitigating factors in sentencing him. In making this argument, M r. Hopkins

relies on 18 U.S.C. § 3553 and suggests a downward departure should have been

given based on U.S.S.G. §§ 5H1.1 and 5H1.4 due to his elderly age and

extraordinary physical impairment.



      The essence of M r. Hopkins’s appeal argument is three-fold: 1) his

sentence is unreasonable because the district court improperly departed upw ards;

2) the district court improperly denied his request for a downward departure under

the Chapter Five Guidelines; and 3) his sentence is unreasonable under the

§ 3553(a) factors based on his age and health. W e begin our discussion by

clarifying that a sentence above or below the recommended Guidelines range

based on an application of Chapters Four or Five of the Guidelines is referred to

as a “departure,” while a sentence above or below the recommended Guidelines




                                         -10-
range through application of the sentencing factors in 18 U.S.C. § 3553(a) 5 is

called a “variance.” United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir.

2007) (en banc request denied). W e lack jurisdiction “to review a district court’s

discretionary decision to deny a motion for downward departure on the ground

that a defendant’s circumstances do not warrant the departure.” United States v.

Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005). W e review a denial of a

downward departure only if the denial is based on the sentencing court’s

interpretation of the Guidelines as depriving it of the legal authority to grant the

departure. See United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999).

“A district court is presumed to understand that it has discretion to downwardly

depart unless the court unambiguously states that it lacks such discretion.”



      5
          18 U.S.C. § 3553(a) provides, in part, the court shall consider:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to 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;
      (3) the kinds of sentences available; ...
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                         -11-
Sierra-Castillo, 405 F.3d at 936. In this case, absent any indication to the

contrary, w e presume the district court understood its discretion, and therefore w e

lack jurisdiction to review the district court’s denial of M r. Hopkins’s motion for

a downward departure.



      W hile we lack jurisdiction regarding the district court’s denial of a

downward departure, it is evident M r. Hopkins is now also claiming his sentence

is unreasonable under the § 3553(a) factors based on the same age and health

issues he previously raised to support his downward departure request under

U.S.S.G. §§ 5H1.1 and 5H1.4. W hile M r. Hopkins did not previously frame his

objections expressly in the context of a variance under § 3553(a), we do not

require a defendant to make such an objection in order to preserve a claim his

sentence is unreasonably long under those factors. See United States v. Torres-

Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006), petition for cert. filed (Nov. 22,

2006) (No. 06-7990). Instead, we review for reasonableness the sentence’s

length, as guided by the factors in 18 U.S.C. § 3553(a). See id. These factors

“include the nature of the offense and characteristics of the defendant, as well as

the need for the sentence to reflect the seriousness of the crime, to provide

adequate deterrence, to protect the public, and to provide the defendant with

needed training or treatment ....” United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006) (per curiam).

                                         -12-
      W e require reasonableness in two respects – “the length of the sentence, as

well as the method by which the sentence was calculated.” Id. at 1055 (emphasis

omitted). In determining whether the district court properly applied the

applicable Guidelines, we review its legal conclusions de novo and its factual

findings for clear error. Id. at 1054. W e have also held “the sentencing factors

set forth in 18 U.S.C. § 3553(a) must be considered by the district court itself

when imposing a sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109,

1115 (10th Cir. 2006).

      [W ]here a defendant has raised a nonfrivolous argument that the
      § 3553(a) factors warrant a below-Guidelines sentence and has
      expressly requested such a sentence, we must be able to discern from
      the record that the sentencing judge did not rest on the guidelines
      alone, but considered whether the guidelines sentence actually
      conforms, in the circumstances, to the statutory factors.

Id. at 1117 (quotation marks, alterations and citation omitted).



      W ith these principles in mind, we turn to M r. Hopkins’s age and poor

health, which are but two of the § 3553(a) factors the district court was required

to consider. It is clear the district court weighed both M r. Hopkins’s age and

health issues as well as the other § 3553(a) factors, such as the serious nature of

his offense and his other characteristics and history, including: 1) the violent

nature of the instant offense, in w hich he wielded two weapons, stabbed his

stepson, and shot at the door; 2) his apparent lack of remorse for his actions; 3)



                                         -13-
his prior convictions involving extremely violent behavior towards his wife; and

4) his alarming and extremely threatening statements at the time of his booking

which were not contemporaneous but occurred after he had time to “cool off.”

The district court also weighed M r. Hopkins’s health problems against the need

for his sentence to reflect the seriousness of the crime, to provide adequate

deterrence, to protect the public, and to provide him with needed treatment. In

that regard, it explained it believed a forty-six-month sentence was appropriate to

protect the community, M r. Hopkins’s family, and M r. Hopkins himself from his

own violence; recommended he be evaluated and placed in an institution where he

could receive needed medical care; and directed he participate in domestic

violence and alcohol treatment programs. In addition, the district court explained

that, at the age of fifty-nine, M r. Hopkins was not very old. Under the

circumstances presented, we cannot say M r. Hopkins has demonstrated his age

and health, when view ed in light of the other § 3553(a) factors, are sufficiently

compelling for the purpose of making his sentence unreasonable.



      As to M r. Hopkins’s argument concerning his upward departure, we review

any legal questions presented de novo and the factual findings for clear error,

giving due deference to the district court’s application of the Guidelines to the

facts. See United States v. Pettigrew, 468 F.3d 626, 639-40 (10th Cir. 2006),

cert. denied, 127 S. C t. 1343 (2007). W hen reviewing upward departures, we

                                         -14-
employ a four-part test as to whether: 1) the factual circumstances supporting the

departure are permissible departure factors; 2) the departure factors relied on by

the district court remove the defendant from the applicable Guidelines heartland,

thus w arranting a departure; 3) the record sufficiently supports the factual basis

underlying the departure; and 4) the degree of departure is reasonable. See

United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006).



      All of these steps are subject to an abuse of discretion standard. See id.

“This standard limits appellate courts’ scope of review , leaving district courts

with much of their traditional sentencing discretion.” Id.

      In the usual case, where the court’s decision whether to depart rests
      on factual findings, the district court’s decision is entitled to
      substantial deference. If, however, the district court’s decision rests
      primarily on a legal conclusion, for instance w hether a factor is a
      permissible ground for departure, the appellate court’s review is
      plenary.

Id. In determining the degree of an upward departure, the district court is

required to “precisely lay out its reasoning and analysis as to why it is selecting a

particular degree of departure” sufficient to “give us reasonable indicia that the

sentence the district court pronounces is proportional to the crime committed.”

United States v. Proffit, 304 F.3d 1001, 1012 (10th Cir. 2002) (quotation marks

and citation omitted). Ordinarily, “[t]he district court accomplishes this task by

using any reasonable methodology hitched to the Sentencing Guidelines to justify



                                         -15-
the reasonableness of the departure.” Id. (quotation marks and citation omitted).



      W ith these principles in mind, we turn to the Guidelines applicable in this

case. Generally, under U.S.S.G. § 5K2.0, the Guidelines permit a departure based

on aggravating or other circumstances w hich are not adequately taken into

account elsewhere in the Guidelines. One explicit example of a circumstance not

taken into account is the discharge of a firearm, which may warrant a “substantial

sentence increase” under § 5K2.6. Similarly, under U .S.S.G. § 4A1.3, an upward

departure may be applicable if the defendant’s criminal history category

substantially under-represents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes.



      In this case, the district court precisely laid out its reasoning for an upward

departure and, in so doing, outlined circumstances not taken into account by the

presentence report, which are permissible circumstances warranting an upward

departure under Chapter Five of the Guidelines. The district court also explained

M r. Hopkins’s criminal history under-represented the seriousness of his prior

actions toward his family and the likelihood he would continue to commit similar

crimes against his family, which also constitute permissible grounds for an

upward departure under § 4A1.3 of the Guidelines. Thus, the district court did

not abuse its discretion in determining the factual circumstances involved are

                                         -16-
permissible upw ard departure factors.



      The district court also did not abuse its discretion in determining M r.

Hopkins’s case is outside of the G uidelines heartland. This is because at least

two of his misdemeanor crimes were of a violent nature, including the discharge

of a firearm at his w ife and his brutal physical beating of her, which clearly

remove him from the heartland of other criminal defendants committing

misdemeanor crimes of a nonviolent nature. In addition, because his past conduct

toward family members is similar to the instant offense, his case is outside the

heartland of criminal defendants who are not likely to commit the same crime

against the same victim. Finally, the record sufficiently supports the factual basis

underlying the upward departure and, for the reasons outlined by the district

court, we find no abuse of discretion in the degree of departure, which appears

reasonable under the circumstances presented.



                                   IV. Conclusion

      For these reasons, we A FFIRM M r. H opkins’s conviction and sentence.



                                         Entered by the C ourt:

                                         W ADE BRO RBY
                                         United States Circuit Judge



                                          -17-
