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

                             FOR THE TENTH CIRCUIT                        February 10, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 16-1149
                                                (D.C. No. 1:15-CR-00282-REB-1)
EXZAVIOR RENALDO MCCULLEY,                                  (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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


      Defendant-Appellant Exzavior Renaldo McCulley pled guilty to possession of

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

challenges his 21-month prison sentence as substantively unreasonable. Exercising

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                  I.     Background

      McCulley planned to travel from Denver, Colorado to Gary, Indiana on May 6,

2015. But his trip came to a halt when airport security detected a loaded handgun in

his checked luggage and police officers arrested him. McCulley was charged with

possessing a firearm after a felony conviction in violation of § 922(g)(1). He had

four previous felony convictions dating back to 1999 and 2003: two for theft, one for

burglary of a building with intent to commit theft, and one for theft of service.

      McCulley pled guilty to violating § 922(g)(1). In the original plea agreement,

the government promised not to advocate for imprisonment and instead to

recommend three years of probation and a $2,000 fine. But McCulley was caught

with three weapons in violation of his pretrial release conditions, and he tried to

cover up his conduct with a series of misrepresentations. Consequently, the parties

amended the plea agreement to allow the government to recommend a custodial

sentence in exchange for its promise not to file new substantive charges.

      The Presentence Investigation Report (PSR) recommended a 24-month prison

sentence, while noting the recommendation did not include a contemplated one-level

decrease in base offense level to account for McCulley’s partial waiver of his

appellate rights—a decrease the government did indeed request. McCulley objected

to the PSR and moved for a variant sentence of three years’ probation, to include a

condition of six months of home confinement. He also moved for a downward

departure from the advisory guideline calculation—asking the district court to apply



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criminal history category II, not III, per the probation office’s recommendation in the

PSR.

       The district court held a sentencing hearing, at which both parties presented

extensive arguments and McCulley exercised his right of allocution. The court

granted the downward departure to criminal history category II “because in these

circumstances, factually and legally, criminal history category III substantially

overrepresents the seriousness of the defendant’s criminal history in this case.”1

R., Vol. IV at 78. The court also granted the one-level decrease in base offense level

based on McCulley’s partial waiver of his appellate rights. But it did not grant a

two-level decrease for acceptance of responsibility, citing McCulley’s continuing

criminal conduct after his guilty plea. (In addition to the weapons infraction,

McCulley violated his pretrial release conditions by testing positive for marijuana

and cocaine, failing to appear for drug testing on multiple occasions, and

misrepresenting himself as an attorney in a debt collection matter involving his

sister-in-law.) The result was a final advisory guideline range of 15 to 21 months.

       After discussing the factors to be considered in imposing a sentence, which are

delineated in 18 U.S.C. § 3553(a), the court imposed a 21-month sentence, adding:

“Only that sentence is sufficient, and then only barely so, to satisfy the requirements

       1
        The district court’s language tracked the PSR, which characterized
McCulley’s criminal history as “over-represented” in suggesting that a criminal
history category of II was warranted. R., Vol. III at 61. The PSR explained that two
of McCulley’s prior convictions were served concurrently, yet he received three
criminal history points for each; furthermore, McCulley was within nine months of
not receiving any points for his 1999 convictions because they occurred so close to
the 15-year parameter in U.S.S.G. § 4A1.2(e)(1).
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of the federal sentencing statute.” R., Vol. IV at 84. The court also imposed a

three-year term of supervised release.

                                     II.    Analysis

       McCulley now argues that his 21-month sentence is substantively

unreasonable. “Substantive reasonableness involves 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).” United States v. Conlan, 500 F.3d 1167, 1169

(10th Cir. 2007).2 We review the substantive reasonableness of a sentence under the

abuse-of-discretion standard. United States v. Gordon, 710 F.3d 1124, 1160

(10th Cir. 2013). This standard requires “substantial deference” to district courts.

Friedman, 554 F.3d at 1307 (internal quotation marks omitted). This deference

extends to a district court’s factual findings as well as “its determinations of the

weight to be afforded to such findings.” United States v. Smart, 518 F.3d 800, 808

(10th Cir. 2008).

       Under this standard, we can consider only whether the judgment rendered “is

arbitrary, capricious, whimsical, or manifestly unreasonable.” Friedman, 554 F.3d at

1307 (internal quotation marks omitted). “That we might reasonably have concluded

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

court.” Id. at 1307-08 (alterations and internal quotation marks omitted). After all,


       2
       Reasonableness also has a procedural component: “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). McCulley does not invoke that
component here, however.
                                             4
the facts and law often “fairly support” a wide range of possible outcomes. United

States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). As long as the sentence

imposed “falls within the realm of these rationally available choices,” we defer to the

district court. Id. Moreover, when a defendant’s sentence falls within the guidelines

range, as McCulley’s does here, it “is entitled to a presumption of substantive

reasonableness on appeal.” United States v. Alapizco-Valenzuela, 546 F.3d 1208,

1215 (10th Cir. 2008). “The defendant may rebut this presumption by showing that

his sentence is unreasonable in light of the” § 3553(a) factors. Id.

      McCulley advances two arguments in an attempt to rebut the presumption of

reasonableness. First, he contends the district court took an inherently inconsistent

position when it granted a downward departure for overrepresentation of criminal

history but then stressed the “immediately disturbing” nature of that criminal history

in choosing a sentence at the top of the guideline range. See Aplt. Corr. Opening Br.

at 2. Second, he contends the district court was “manifestly unreasonable” in its

balancing of the § 3553(a) factors. Id. at 24.

      We discern no abuse of discretion with respect to the court’s treatment of

McCulley’s criminal history. The district court did downgrade his criminal history

category to II after concluding category III “substantially overrepresents” the

seriousness of his criminal history. R., Vol. IV at 78. It also commented on the

“immediately disturbing” nature of his criminal history when recounting the number

of criminal offenses he committed before this one (eight, including four felonies) and

opining that the judicial interventions to date (ranging from fines to probation to jail

                                            5
and prison time) have neither deterred nor reformed him. Id. at 81. But viewed in

context, these statements address different aspects of his criminal history and are not

inconsistent. Furthermore, although McCulley labels the court’s treatment of his

criminal history “a prime driver of the sentence,” Aplt. Br. at 29, the record

demonstrates criminal history was only one of many factors that played into the

sentencing decision.

      Likewise, the district court did not abuse its discretion in applying the

§ 3553(a) factors; to the contrary, it carefully considered them in conducting a

detailed, individualized assessment. McCulley had ample opportunities to advise the

district court of his background, and the record shows the court “credit[ed him] with

the mitigating factors that he offer[ed] both in writing and orally” at the sentencing

hearing. See R., Vol. IV at 84. We will not reweigh the factors on appeal because

“[t]he sentencing judge is in a superior position to find facts and judge their import

under § 3553(a).” Gall v. United States, 552 U.S. 38, 51 (2007) (internal quotation

marks omitted). The sentencing judge has a unique perspective because he is able to

“see[] and hear[] the evidence,” “make[] credibility determinations,” “gain[] insights

not conveyed by the record,” and obtain “full knowledge of the facts.” Id. (internal

quotation marks omitted). The judge also “has access to, and greater familiarity with,

the individual case and the individual defendant.” Id. (internal quotation marks

omitted). Furthermore, “district courts have an institutional advantage over appellate

courts” when it comes to sentencing determinations because they resolve more

guidelines cases. Id. at 52 (alterations and internal quotation marks omitted).

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                                 III.   Conclusion

      Because McCulley has failed to rebut the presumption that his

within-guidelines sentence is substantively reasonable, we affirm the sentence

imposed by the district court.


                                          Entered for the Court


                                          Bobby R. Baldock
                                          Circuit Judge




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