                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          December 4, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                            No. 19-6045
 v.                                                 (D.C. No. 5:18-CR-00149-F-1)
                                                          (W.D. Oklahoma)
 TYRONE VANKINTH HOLLAND, a/k/a
 Tyrone Vankeith Holland,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges.
                  _________________________________


      Tyrone Vankinth Holland pleaded guilty to one count of being a felon in

possession of a firearm. The district court considered the sentencing factors under 18

U.S.C. § 3553(a), departed from the guideline range of 70–87 months, and sentenced

Mr. Holland to 120 months’ imprisonment. Mr. Holland now appeals the substantive

reasonableness of his sentence, arguing that the district court failed to adequately



      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
consider his personal history and background. Exercising our jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

                                  I.    BACKGROUND

        Mr. Holland was convicted of robbery with a dangerous weapon in the

Oklahoma County District Court in 2009. He was discharged from prison in January

2017.

        On April 15, 2017, Andrea Fields called the police to report an assault with a

deadly weapon. Ms. Fields and her friend, Mr. Holland’s girlfriend, had been arguing

with each other about the girlfriend inviting Mr. Holland to Ms. Fields’s house.

While they were arguing, Mr. Holland pulled out a firearm and put it to his

girlfriend’s head. As Ms. Fields and the girlfriend left the house, Mr. Holland fired

the firearm in their direction. Later, Mr. Holland called Ms. Fields on her friend’s

phone, threatening to “shoot up” Ms. Fields’s house the next day. ROA, Vol. II at 6.

When the police arrived, they recovered two 9mm shell casings from Ms. Fields’s

front yard.

        On May 30, 2017, Courtney Coleman called the police to report an assault

with a deadly weapon. Ms. Coleman had been staying at Stefanie Marie Johnson’s

house for two days. Mr. Holland was also present at the house. Ms. Coleman and

Mr. Holland got into an argument, and Mr. Holland told Ms. Coleman to leave.

Ms. Johnson, pregnant with Mr. Holland’s child, tried to intervene. Mr. Holland then

grabbed Ms. Coleman’s and Ms. Johnson’s cell phones, walked down the hallway,

and returned with a firearm. Mr. Holland racked the slide and pointed the weapon at

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Ms. Coleman, telling her to call a friend who had been there earlier. Mr. Holland

threatened to beat Ms. Coleman if her friend did not come, and he further stated he

had seventeen bullets that he intended to use to kill the friend. The argument

continued outside, where Mr. Holland pointed the firearm at Ms. Coleman’s seven-

year-old son and said, “I’ll kill every last one of you.” ROA, Vol. II at 6. According

to Ms. Coleman, Mr. Holland racked the slide several times but she was uncertain

whether the firearm was loaded.

      On June 12, 2017, Brandi Simpkins, also pregnant with Mr. Holland’s child,

called the police to report that her semi-automatic pistol had been stolen from her

apartment. Mr. Holland had been living with Ms. Simpkins until she had asked him

to leave. After Mr. Holland moved out, Ms. Simpkins discovered her firearm was

missing. The police later discovered that Ms. Johnson and Mr. Holland had pawned

Ms. Simpkins’s pistol. The police recovered the pistol and confirmed that it had fired

the two shell casings found in Ms. Fields’s front yard in April of 2017.

      On April 26, 2018, the police responded to a call that three rounds had been

fired into the air from a residence driveway. The police learned that Mr. Holland had

fired the shots. The caller also reported ongoing problems with Mr. Holland and her

fear for her and her children’s safety.

      On May 20, 2018, Ms. Simpkins reported that Mr. Holland had stopped by her

home to see his son. Ms. Simpkins refused to let Mr. Holland see the child, so

Mr. Holland left. He later returned in an SUV and called Ms. Simpkins numerous

times. As Mr. Holland began to leave, Ms. Simpkins heard gun shots. The police

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found five .45 caliber shell casings at the scene. The police later located the SUV,

detained Mr. Holland in a traffic stop, and found him in possession of a .40 caliber

pistol.

          On June 5, 2018, Mr. Holland was charged with two counts of knowingly

possessing a firearm after conviction of a felony in violation of 18 U.S.C.

§ 922(g)(1). Count One charged Mr. Holland with possessing a firearm on or about

April 15, 2017. Count Two charged Mr. Holland with possessing a firearm on or

about May 30, 2017. Mr. Holland pleaded guilty to Count One. The United States

Probation Office prepared a Presentence Investigation Report (“PSR”) in which it

calculated an advisory sentencing guideline of 70–87 months based on a total offense

level of 25 and Mr. Holland’s criminal history category of III. The Probation Office

also suggested that the court consider an upward departure or upward variance based

on Mr. Holland’s under-represented criminal history and the § 3553(a) factors.

          The PSR and Mr. Holland’s sentencing memorandum detailed his difficult and

traumatic childhood. Raised by a single working mother, Mr. Holland was often left

with his older siblings, who brought others to their home and exposed Mr. Holland to

drugs and alcohol at an early age. Mr. Holland began using drugs and alcohol around

age ten or eleven. Gang violence was commonplace in Mr. Holland’s neighborhood.

Mr. Holland recalled fleeing from drive-by shootings and stumbling upon dead

bodies in fields as a child. Mr. Holland was incarcerated as a young adult from 2008

to 2017 for robbery with a dangerous weapon.



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      In his sentencing memorandum, Mr. Holland acknowledged the seriousness of

his crimes but argued that a sentence within the advisory guideline would be

appropriate, as opposed to an upward departure or variance, because people of his

age are less likely to re-offend. Mr. Holland also submitted two character letters for

the court to consider.

      After considering the § 3553(a) factors, the district court determined an

upward variance was warranted and sentenced Mr. Holland to the statutory maximum

of 120 months. The court cited the need for incapacitation as the most prominent

§ 3553(a) factor in Mr. Holland’s case. Most striking to the court was Mr. Holland’s

propensity to focus his violent and dangerous conduct on those weaker and more

vulnerable than him. When Mr. Holland’s counsel asked the court to elaborate on the

court’s consideration of Mr. Holland’s history and characteristics under § 3553(a)(1),

the court pointed to Mr. Holland’s quick reversion to violent and dangerous conduct

following his release from prison and his tendency to focus that conduct on

individuals who are weak and vulnerable as aggravating factors that differentiate him

from other generally violent defendants. Ultimately, the court determined that the

upward variance was sufficient but not greater than necessary to achieve the statutory

objectives of sentencing.

                            II.    STANDARD OF REVIEW

      We review the substantive reasonableness of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Chavez,

723 F.3d 1226, 1233 (10th Cir. 2013). We “will reverse only if the sentence imposed

                                           5
was arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (internal quotation marks omitted). In

other words, “we will reverse a determination only if the court exceeded the bounds

of permissible choice, given the facts and the applicable law in the case at hand.” Id.

(quotation marks omitted). Yet, “we uphold even substantial variances when the

district court properly weighs the § 3553(a) factors and offers valid reasons for the

chosen sentence.” United States v. Barnes, 890 F.3d 910, 916 (10th Cir. 2018). “A

district court properly engages in this inquiry when it bases its decision on specific,

articulable facts supporting the variance and does not employ an impermissible

methodology or rely on facts that would make the decision out of bounds.” Id.

      Due to the district court’s superior position to find facts, we “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify

the extent of the variance.” Gall, 552 U.S. at 51. The keystone of our analysis is “the

adequacy of the court’s consideration and explanation of the § 3553(a) factors.”

Barnes, 890 F.3d at 916. “We look to the record to determine whether the district

court satisfactorily engaged and examined the factors in a holistic fashion.” Id. “We

do not reweigh the sentencing factors but instead ask whether the sentence fell within

the range of rationally available choices that facts and the law at issue can fairly

support.” United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019) (internal

quotation marks omitted).




                                            6
                                     III.   ANALYSIS

       On appeal, Mr. Holland contends the district court failed to adequately

consider his personal history and background, especially his difficult childhood,

when the court varied from the calculated guideline range and sentenced Mr. Holland

to 120 months imprisonment. We find no abuse of discretion. The district court not

only considered Mr. Holland’s personal history and background but also based the

variant sentence on specific, articulable facts.

       To begin, the record indicates that the district court considered Mr. Holland’s

difficult childhood. At sentencing, the district court specifically stated it had

considered the sentencing memorandum and attached letters, which outlined

Mr. Holland’s difficult childhood and background. Mr. Holland’s counsel also

summarized Mr. Holland’s difficult childhood before the court during the sentencing

hearing.

       Admittedly, the court made no specific mention of Mr. Holland’s childhood in

its analysis of the § 3553(a) factors. Rather, in its discussion of Mr. Holland’s history

and characteristics, the court focused on the defendant’s record of violent crime,

beginning more than ten years prior, and continuing upon his release from prison.

When asked to elaborate on Mr. Holland’s history and characteristics, the court noted

Mr. Holland’s 2008 conviction for robbery with a dangerous weapon, quick reversion

to violence upon his release from prison, and tendency to direct his violence toward

the weak and vulnerable as particularly persuasive. Although the district court did not

expressly address the impact of Mr. Holland’s childhood in its analysis, it

                                            7
acknowledged its review of this evidence and listened to defense counsel’s related

argument.

      Under these circumstances, we decline to reweigh this factor. The district court

satisfactorily engaged in a holistic review of the § 3553(a) factors and based its

decision to vary upward on specific articulable facts. See Barnes, 890 F.3d at 916. In

particular, the district court identified Mr. Holland’s involvement in numerous

incidents of gun violence against women—some of whom were pregnant—and

children. The court found that prevention of future incidents through incapacitation

strongly supported the upward variance. The court did not abuse its broad discretion

in finding that the § 3553(a) factors, as a whole, justify a 120-month sentence.

                                  IV.    CONCLUSION

      We accordingly uphold the sentence and AFFIRM the district court’s

judgment.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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