                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 February 21, 2012
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                         No. 11-1309
 v.                                           (D.C. No. 1:11-CR-00065-MSK-1)
                                                         D. Colorado
 TRENT S. HIX,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, 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.

I.    Introduction

      Appellant Trent S. Hix was charged with three counts of bank robbery, in

violation of 18 U.S.C. § 2113(a). Hix pleaded guilty to all three counts. The

      *
        This order and judgment is not binding precedent except under the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.
district court sentenced him to fifty-seven months’ imprisonment, the low end of

the advisory guidelines range. Hix appeals his sentence, arguing first that the

district court erred by adding three points to his offense level calculation based on

the court’s conclusion he brandished a dangerous weapon during one of the

robberies. He also challenges the substantive reasonableness of his within-

Guidelines sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we affirm Hix’s sentence.

II.    Background

       Hix was arrested in 2011 after he committed a series of bank robberies in

Colorado. He pleaded guilty to three counts of bank robbery, in violation of 18

U.S.C. § 2113(a). At the change of plea hearing, Hix admitted committing all

three robberies and admitted he presented each of the three tellers with a note

reading, “I have a gun. Give me [money] and you will not be hurt. Do not come

after me.” Hix also admitted that during one robbery, he showed the teller what

appeared to be a handgun. The parties agreed, however, that it was actually a toy

gun.

       The district court accepted Hix’s guilty plea and the United States

Probation Office prepared a Presentence Investigation Report (“PSR”). The total

offense level for Count One was calculated at twenty-five. This included a two-

level increase under USSG § 2B3.1(b)(1) because property was taken from a

financial institution and a three-level increase under USSG § 2B3.1(b)(2)(E)

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because Hix brandished a dangerous weapon during the robbery. After grouping

the other two offenses and applying a three-level reduction under USSG § 3E1.1

for acceptance of responsibility, the PSR arrived at a total offense level of

twenty-five. Hix’s criminal history score of zero placed him in Criminal History

Category I. Based on the criminal history category and total offense level, the

PSR calculated an advisory guidelines range of fifty-seven to seventy-one

months’ imprisonment.

      Hix did not object to the calculation of the advisory guidelines range but he

filed a motion requesting a downward variance from that range, arguing a

variance was appropriate based, inter alia, on his personal history, the nature and

circumstances of the offense of conviction, and the need to afford adequate

deterrence. See 18 U.S.C. § 3553(a). Specifically, Hix asserted he grew up in a

poor family and witnessed his father verbally and physically abuse his mother.

He and his mother moved to Colorado after his parents divorced but they

continued to struggle financially. Hix’s financial situation deteriorated further

after he was diagnosed with lymphoma. The stress of his financial situation

caused Hix to begin abusing alcohol and his excessive drinking contributed to his

decision to pay his mounting debts and living expenses by robbing banks. Hix

also argued he was unlikely to re-offend because of his status as a first-time

offender and his fear of incarceration based on the physical mistreatment he

suffered at the hands of other inmates at the Federal Detention Center.

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       At the sentencing hearing, the district court heard argument on Hix’s

motion but denied his request for a variant sentence, stating:

       Looking at the nature and circumstances of the offense, I see three
       robberies where the tellers who were confronted were threatened
       with danger to their life or their physical safety. I see small amounts
       that were recovered by the defendant over an exceedingly long period
       of time. I see a defendant who has a tragic childhood history and has
       suffered from many kinds of physical illnesses. But none of those
       justify what he did.

The court sentenced Hix to fifty-seven months’ imprisonment, the low end of the

advisory guidelines range. Hix then filed this appeal.

III.   Discussion

       A. Procedural Reasonableness

       Hix first argues his sentence is procedurally unreasonable because the

district court erred when it calculated his advisory guidelines range. Specifically,

Hix asserts the court should not have applied the three-level “dangerous weapon”

enhancement under USSG § 2B3.1(b)(2) because he brandished a toy gun, which

he argues is not a dangerous weapon. Generally, this court evaluates a sentence

for procedural reasonableness by “review[ing] the district court’s legal

conclusions regarding the Guidelines de novo and its factual findings for clear

error.” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008).

Because Hix did not contemporaneously raise this alleged procedural error during

the sentencing hearing, however, we review his claim for plain error. United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).

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      This court has previously held that a toy gun qualifies as a dangerous

weapon for purposes of § 2B3.1(b)(2). United States v. Pool, 937 F.2d 1528,

1530-31 & 1531 n.1 (10th Cir. 1991); Cf. United States v. Farrow, 277 F.3d 1260,

1267-68 (10th Cir. 2002) (holding that a concealed hand can be an “object” for

purposes of the definition of the term “dangerous weapon” as used in

§ 2B3.1(b)(2) because “even the perception of a dangerous weapon has the

potential to add significantly to the danger of injury or death”). Hix

acknowledges his argument is foreclosed by this court’s precedent but advises the

court he has raised the issue in this appeal to preserve it for further review. We

agree with Hix that our precedent forecloses his argument and, thus, he cannot

meet his burden of showing plain error in the calculation of his advisory

guidelines range. See United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir.

2000) (“Under the doctrine of stare decisis, this panel cannot overturn the

decision of another panel of this court barring en banc reconsideration, a

superseding contrary Supreme Court decision, or authorization of all currently

active judges on the court.” (quotation omitted)).

      B. Substantive Reasonableness

      Hix also argues his sentence is substantively unreasonable. This court

applies a highly deferential abuse of discretion standard to claims of substantive

unreasonableness. United States v. Reyes-Alfonso, 653 F.3d 1137, 1144 (10th Cir.

2011). We will reverse a sentence only if it is “arbitrary, capricious, whimsical,

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or manifestly unreasonable.” United States v. Haley, 529 F.3d 1308, 1311 (10th

Cir. 2008). “The fact that the appellate court might reasonably have concluded

that a different sentence was appropriate is insufficient to justify reversal of the

district court.” Gall v. United States, 552 U.S. 38, 51 (2007). Hix faces a high

burden on appeal because his sentence fell within a properly calculated advisory

guidelines range and, thus, we presume it to be reasonable. United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). To rebut this presumption, Hix

must show his “sentence is unreasonable when viewed against the other factors

delineated in [18 U.S.C.] § 3553(a).” Id.

      Hix argues his sentence is manifestly unreasonable because the district

court disregarded all the facts he offered to explain the circumstances surrounding

the offense of conviction and his personal history and characteristics.

Specifically, he alleges the court did not afford any weight to his arguments that

he (1) stole only small amounts of money and did so only when he reached the

point of desperation, (2) he and his mother lived in increasing poverty and he

committed the robberies to pay medical bills and living expenses, and (3) he is

unlikely to re-offend because of the physical and sexual assault he suffered while

incarcerated. The district court, instead, placed more weight on the fact that Hix

threatened the three tellers, placing them in fear for their lives.

      The record confirms the district court fully considered all the facts Hix

references. Analyzing those facts within the context of § 3553(a), and weighing

                                           -6-
them against the fact Hix made deadly threats during the three robberies, the court

concluded they did not justify a variant sentence. There was nothing manifestly

unreasonable about the district court’s conclusion.

IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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