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

                            FOR THE TENTH CIRCUIT                            August 7, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-8036
                                                   (D.C. No. 2:18-CR-00148-NDF-1)
 JACKSON BURLEY COOMBS,                                        (D. Wyo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, HOLMES, and EID, Circuit Judges.
                  _________________________________

      Jackson Coombs challenges the reasonableness of his sentence. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

      On the night of July 28, 2018, Coombs assaulted M.C. in a women’s restroom

in Yellowstone National Park. When M.C. entered the restroom, she noticed that

someone was in one of the stalls—a pair of black cowboy boots was visible beneath

the stall partition. The boots were facing the wall, not the door of the stall. Getting a

“weird feeling,” M.C. entered the stall farthest from the occupied stall. As M.C.



      *
         This order and judgment is not binding precedent, except under the doctrines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.
finished using the restroom, Coombs—who was wearing the cowboy boots—crossed

the restroom to M.C.’s stall, began pounding on the door, and battered it open.

      Coombs had wrapped his face in toilet paper, and he held a can of bear spray

in one hand. He attacked M.C., spraying her in the face and eyes with the bear

repellent and punching her in the face and head. Coombs wore several large rings,

which worsened the blows. M.C. screamed for help as Coombs beat her to the floor

and straddled her. Attempting to escape, M.C. tried to squeeze under the wall of the

stall into the adjacent stall. Hearing her screams, M.C.’s boyfriend, W.L., entered the

women’s restroom and pulled Coombs off M.C. M.C. escaped the restroom while

W.L. and Coombs fought. Coombs bit W.L. in the chest and forearm, but W.L. was

ultimately able to wrestle Coombs to the floor. With the help of a passerby who

came to his assistance, W.L. kept Coombs pinned to the ground until law

enforcement arrived and placed him in handcuffs.

      Coombs was charged and indicted for two counts of assault with a dangerous

weapon under 18 U.S.C. § 113(a)(3) and one count of assault resulting in serious

injury under 18 U.S.C. § 113(a)(6). He pled guilty to one count of assault with a

dangerous weapon and to the lesser-included offense of simple assault. Prior to

sentencing, the probation office issued a Presentence Investigation Report (“PSR”),

which was later revised after Coombs filed several objections. The revised PSR

described Coombs’ previous criminal history and history of drug abuse, particularly

of alcohol. Applying a two-level enhancement under the United States Sentencing

Guidelines (“U.S.S.G.”) § 2A2.2(b)(1) for more than minimal planning in the

                                          2
commission of the aggravated assault, the revised PSR recommended a term of

imprisonment of 70 to 87 months. Coombs objected to the enhancement, contending

that he was too intoxicated to more than minimally plan the crime. He submitted

medical testimony regarding his level of intoxication at the time he assaulted M.C.

and argued that the PSR overstated his criminal history. Based on these objections,

Coombs sought a sentence in the 33- to 41-month range.1

      The district court agreed with the probation office that the correct guidelines

imprisonment range for Coombs’ sentence was 70 to 87 months. After considering

Coombs’ objections and hearing witness testimony, the court sentenced Coombs to

78 months’ imprisonment, followed by three years’ supervised release, and ordered

him to pay $2,199 in restitution for his victims’ injuries. On appeal, Coombs

challenges the court’s application of the more-than-minimal-planning enhancement to

his sentence, and he contends that his sentence is substantively unreasonable.

                                          II

      We review a district court’s sentencing decision for reasonableness.

“[R]easonableness review has two aspects: procedural and substantive.” United

States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019). “Review for procedural

reasonableness focuses on whether the district court committed any error in

calculating or explaining the sentence.” United States v. Friedman, 554 F.3d 1301,

1307 (10th Cir. 2009). Substantive reasonableness addresses “whether the length of


      1
         Coombs erroneously states in his opening brief that he sought a sentence in
the 31- to 41-month range. This discrepancy is immaterial to our analysis.
                                          3
the sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d

884, 895 (10th Cir. 2008) (quotation omitted). A sentence within the correctly

calculated guidelines range is presumed to be substantively reasonable. United States

v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

      When reviewing a sentence for reasonableness, we apply “a deferential abuse

of discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.

2008). We review the district court’s underlying factual findings in support of a

sentencing decision for clear error and its legal determinations de novo. Kristl, 437

F.3d at 1054. We accept a district court’s factual findings “unless the record does not

support them or, after reviewing the record, we are left with the definite and firm

conviction that a mistake has been made.” United States v. Archuletta, 231 F.3d 682,

684 (10th Cir. 2000) (quotation omitted). We will not reverse a district court’s

sentencing decision unless it is “arbitrary, capricious, whimsical, or manifestly

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

(quotation omitted).

                                           A

      Coombs argues the district court procedurally erred by applying the more-

than-minimal-planning enhancement to his sentence. Section 2A2.2(b)(1) of the

United States Sentencing Guidelines provides for a two-level enhancement if an

aggravated assault involved “more than minimal planning,” meaning it involved

“more planning than is typical for commission of the offense in a simple form” or

                                           4
“significant affirmative steps were taken to conceal the offense.” U.S.S.G.

§ 2A2.2(b)(1) cmt. n.2 (2018). Actions such as “luring a victim to a specific

location” or “wearing a ski mask to prevent identification” constitute more than

minimal planning to commit an aggravated assault, but merely waiting to commit the

offense until no witnesses are present is not enough. Id.

       Coombs argues that the district court erred as a matter of law in applying the

enhancement because his crime “was not complex, did not involve significant

affirmative steps [taken] to conceal the crime, and did not involve complicated

criminal activity considered to be more blameworthy and deserving of greater

punishment than the commission of the offense in a ‘simple’ form.” To support this

argument, he cites numerous Tenth Circuit cases involving fraud or theft schemes in

which we applied the enhancement. He asserts that these cases demonstrate that the

level of planning necessary to apply the more-than-minimal-planning enhancement is

higher than the level of planning typically present in aggravated assault cases.

Similarly, Coombs cites several Fifth Circuit cases in which the enhancement was

applied in the aggravated assault context, but he contends that the facts of these cases

exhibit significantly more planning than his assault of M.C. Finally, Coombs points

to statistical evidence that the more-than-minimal planning enhancement is seldom

applied in aggravated assault cases nationwide and has not been applied in this

circuit.

       These arguments do not help Coombs. Section 2A2.2(b)(1) expressly provides

for the application of the enhancement to aggravated assault sentences. Thus, the

                                           5
Sentencing Commission has clearly approved its applicability in appropriate

aggravated assault cases. The mere fact that the more-than-minimal-planning

enhancement is applied more frequently to other crimes is legally irrelevant—it does

not render impermissible the application of the enhancement when the requirements

of § 2A2.2(b)(1) are met.

      Nevertheless, Coombs implies that the more-than-minimal-planning

enhancement is inapplicable in aggravated assault cases because district courts did

not apply the enhancement in several such cases in Wyoming. See United States v.

Duran, 127 F.3d 911 (10th Cir. 1997); United States v. Montoya, 85 F.3d 641 (10th

Cir. 1996); United States v. Jenkins, 17 F. App’x 769 (10th Cir. 2001) (unpublished);

United States v. Yellowbear, 382 F. App’x 715 (10th Cir. 2010) (unpublished). But

none of these cases so much as mention the enhancement. Similarly, the Fifth Circuit

cases on which Coombs relies do little to support his contention that the more-than-

minimal-planning enhancement does not apply, as a matter of law, to his assault of

M.C. These cases merely identify particular facts the reviewing court held sufficient,

but not necessary, to support application of the enhancement; they do not purport to

identify a minimum level of planning required under § 2A2.2(b)(1). Accordingly,

Coombs’ reliance on these various cases is unavailing. See Auraria Student Hous. at

the Regency, LLC v. Campus Vill. Apartments, LLC, 843 F.3d 1225, 1242 (10th Cir.

2016) (questions “neither brought to the attention of the court nor ruled upon[] are

not to be considered as having been so decided as to constitute precedents”

(quotation omitted)); Merrifield v. Bd. of Cty. Comm’rs for Cty. of Santa Fe, 654

                                           6
F.3d 1073, 1084 (10th Cir. 2011) (“It is elementary that an opinion is not binding

precedent on an issue it did not address.”).

      Additionally, Coombs argues that the district court legally erred in applying

the enhancement to his sentence because the enhancement applies only to complex

criminal activity. Citing Archuletta, Coombs asserts the more-than-minimal-planning

enhancement is designed to target criminals who engage in “complicated criminal

activity because their actions are considered more blameworthy and deserving of

greater punishment than a perpetrator of a simpler version of the crime.” 231 F.3d at

686. Coombs latches onto the word “complicated” and asserts that his crimes were

“uncomplicated assault[s].” But “complicated” is a relative term dependent on

comparison between the underlying criminal conduct for which the defendant is

being sentenced and the simplest form of the offense. See, e.g., United States v.

Moore, 225 F.3d 637, 642 (6th Cir. 2000) (“It is not necessary that a crime suggests

planning in its most deliberative form; rather, it is sufficient if the evidence suggests

merely that the crime was not committed in its simplest form.”); United States v.

Bean, 18 F.3d 1367, 1370 (7th Cir. 1994), abrogated on other grounds by United

States v. Vizcarra, 668 F.3d 516, 523 (7th Cir. 2012) (“The ‘offense’ is the crime of

which the defendant has been convicted, not of the particular way in which he

committed it.”). Archuletta involved bank fraud, which “is committed by one who

knowingly executes, or attempts to execute, a scheme or artifice (1) to defraud a

financial institution[] or (2) to obtain any of the moneys, funds or other property

under the custody or control of a financial institution by means of false or fraudulent

                                            7
pretenses.” 231 F.3d at 684 (quoting 18 U.S.C. § 1344). By contrast, the

government contends—and Coombs does not dispute—that the simple form of his

crime required only that on a particular date, at a particular location, he knowingly

assaulted another individual with a dangerous weapon with the intent to do bodily

harm. See § 113(a)(3). Thus, the simple form of bank fraud is much more complex

than the simple form of aggravated assault with a deadly weapon. And, as the

Sentencing Guidelines indicate, merely donning a ski mask in an attempt to conceal

one’s identity constitutes more than minimal planning to commit an aggravated

assault. § 2A2.2(b)(1) cmt. n.2. Accordingly, the district court did not legally err in

applying the more-than-minimal-planning enhancement to Coombs’ assault simply

because aggravated assault is not “complicated criminal activity.” What matters is

whether Coombs more than minimally planned his assault of M.C, not whether his

offense was “complicated.”

      Finally, with respect to the district court’s factual findings, Coombs challenges

several inferences the court drew from undisputed facts in the record. For example, it

is undisputed that Coombs was in a stall in the women’s restroom when M.C. entered

the restroom, but Coombs challenges the district court’s inference that he was

waiting in the stall and knew he was in the women’s restroom. Similarly, Coombs

challenges the district court’s inference that because he wrapped his face in toilet




                                           8
paper, he attempted to conceal his identity.2 According to Coombs, his attack on

M.C. was spontaneous and did not involve significant affirmative steps to conceal the

offense. The district court found otherwise, and we discern no clear error in that

determination.

      Coombs presented to the district court a narrative that he was drunk and

hallucinating when he assaulted M.C. The district court considered and rejected that

narrative. It noted that not even Coombs’ doctor “would go so far” as to suggest his

actions were the product of hallucination. Moreover, the record reflects that the

emergency room doctor who examined Coombs after the attack noted that “[h]e has

been drinking this evening, at least a fifth of vodka. He also uses oxycodone and

Adderall for ADHD and has taken both of those this evening. He is actually quite

awake and alert for having had these sedating medications. He clearly states that he

did not have a loss of consciousness.” In light of all the record evidence, the court

determined that the most logical inferences were that Coombs “knew he was in the

wrong restroom, that he battered his way into another stall where someone was there

not presenting any threat, and he concealed his identity during the course.” The

district court determined this “goes beyond the simple form of assault and is more

than minimal planning.”


      2
         Coombs asserts he did not take significant affirmative steps to conceal the
assault because he did not wear a ski mask and did not succeed in concealing his
identity. But wearing a ski mask is merely one example constituting more than
minimal planning, and the fact that Coombs—as he phrased it—“ineptly wrapped
toilet paper around the lower part of his face” does not mean he did not attempt to
conceal his identity.
                                           9
      Contrary to Coombs’ contention, these are reasonable inferences drawn from

undisputed facts in the record. In essence, Coombs complains that the district court

found persuasive an explanation different from the one he advanced. But where, as

here, there is “a range of possible outcomes the facts and law at issue can fairly

support,” the reviewing court does not “pick and choose among them” but rather

“defer[s] to the district court’s judgment so long as it falls within the realm of these

rationally available choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th

Cir. 2007). Because the record supports the district court’s factual findings, the court

did not clearly err by drawing inferences contrary to the ones Coombs would have

had it draw.

      For these reasons, we conclude the district court did not commit procedural

error in applying the more-than-minimal-planning enhancement. Accordingly, we

conclude that the district court correctly determined the applicable guidelines

imprisonment range was 70 to 87 months.

                                            B

      Turning to substantive reasonableness, we conclude that Coombs has failed to

rebut the presumption that his sentence is substantively reasonable. As explained

above, the district court did not commit procedural error in calculating the guidelines

range for his sentence to be 70 to 87 months. Because the court’s ultimate sentence

of 78 months’ imprisonment falls within this range, it is presumptively reasonable.

Kristl, 437 F.3d at 1054.



                                           10
      Substantive reasonableness addresses “whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in

18 U.S.C. § 3553(a).” Verdin-Garcia, 516 F.3d at 895. Under § 3553(a)(6),

sentencing courts must consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct.” Relying on statistical data regarding the infrequent application of the

more-than-minimal-planning enhancement in aggravated assault cases, Coombs

argues that his sentence is substantively unreasonable because it is “well above the

national average” and thus violates § 3553(a)(6). But § 3553(a)(6)’s consideration of

unwarranted sentence disparities is but one factor that a district court must balance

against the other § 3553(a) factors in arriving at an appropriate sentence. See United

States v. Martinez, 610 F.3d 1216, 1228 (10th Cir. 2010). Moreover, Coombs admits

he does not know whether the enhancement was applied in any of the cases

comprising the data set on which he relies for his purported average sentence. Nor

does he provide any information about the underlying facts of the aggravated assault

cases making up that data set. Without more, Coombs has failed to show that his

sentence is similar to the cases he asserts are comparable or that any disparity

between his case and these other cases is “unwarranted.” § 3553(a)(6).

      Coombs also contends that the district court placed excessive weight on

§ 3553(a)(2)’s instruction to consider “the need for a sentence to reflect the

seriousness of the crime, deter future criminal conduct, prevent the defendant from

committing more crimes, and provide rehabilitation.” Specifically, he takes issue

                                           11
with the court’s assessment that he had repeatedly received lenient sentences for

troubling conduct and was not deterred by these sentences from assaulting M.C. Yet

under our deferential standard of review, we must affirm “[a]s long as the balance

struck by the district court among the factors set out in § 3553(a) is not arbitrary,

capricious, or manifestly unreasonable.” Martinez, 610 F.3d at 1229 (quotation

omitted).

      Coombs has not persuaded us that his sentence was arbitrary, capricious, or

manifestly unreasonable. He asserts that his crime was less serious than other

aggravated assault crimes committed in Wyoming, but this bare comparison does not

demonstrate an unreasonable application or balancing of the § 3553(a) factors.

Similarly, he attempts to minimize aspects of his criminal history, but he fails to

explain how the court’s assessment of his criminal history is erroneous. Instead, he

complains about the court’s “censorious tone” and insinuates that the sentencing

judge had a “personal and perhaps socio-economic connection to [M.C.]” These

conclusory and unfounded assertions fail to rebut the presumption that Coombs’

sentence is substantively reasonable.

      Finally, Coombs argues that his sentence is longer than necessary to achieve

the goals of sentencing. See § 3553(a). But he fails to address the district court’s

thorough explanation as to why the 78-month sentence imposed was appropriate.

Instead, he asserts without elaboration that a 51-month sentence is more than

adequate to achieve the statute’s purposes. Again, without more, Coombs has failed

to rebut the presumption that his sentence is substantively reasonable.

                                           12
      Accordingly, we conclude the district court’s sentencing decision was not

substantively erroneous.

                                        III

      AFFIRMED.


                                          Entered for the Court


                                          Carlos F. Lucero
                                          Circuit Judge




                                        13
