                                                            FILED
                                                 United States Court of Appeals
                    UNITED STATES CO URT O F APPEALS     Tenth Circuit

                                                                 September 5, 2007
                                 TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

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

               Plaintiff - Appellee,                    No. 07-2052
          v.                                          (D. New M exico)
 YAM IL CHAHEIN E, JR.,                          (D.C. No. 06-CR-1156-WJ)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Yamil Chaheine, Jr., pleaded guilty in the United States District Court for

the District of New M exico to possession with intent to distribute cocaine, see

21 U.S.C. § 841(b)(1). The district court sentenced him to 27 months’

imprisonment and four years’ supervised release. He appeals his sentence,

contending that his sentence is procedurally unreasonable because at sentencing

the court invoked the presumption of reasonableness declared in United States v.


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
Kristl, 437 F.3d 1050 (10th Cir. 2006). W e agree with M r. Chaheine that it would

be error for the district court to rely on the presumption, but we conclude that

M r. Chaheine has failed to establish plain error. W e therefore affirm.

      M r. Chaheine was sentenced on February 6, 2007. In imposing sentence,

the district court began by noting that because of the amount of drugs involved

the statutory minimum for M r. Chaheine’s offense was five years, but that he was

eligible for a “safety valve” sentence below that minimum because of his criminal

history, acceptance of responsibility, and cooperation. See United States

Sentencing Guidelines (USSG) § 5C1.2. Under the G uidelines his base offense

level w as 26, see USSG § 2D1.1(c)(7); because he satisfied the safety-valve

criteria his offense level was reduced by two levels, see id. § 2D1.1(b)(9); and the

stipulated minimal-role adjustment reduced it by another three levels, see

id. § 3B1.2. A three-level acceptance-of-responsibility reduction, see id. § 3E1.1,

resulted in a total offense level of 18 and an advisory range of 27 to 33 months’

imprisonment.

      After explaining the above calculation the district court made the following

comments:

      One thing about the guidelines in terms of the sentencing factors, one
      of the factors is the need to avoid unwarranted sentencing disparities
      among defendants with similar records who’ve been found guilty of
      similar conduct and that was . . . the goal that Congress had at the
      time it created the sentencing guidelines— or rather, the United States
      Sentencing Commission. And the rationale for promulgating these
      guidelines is so that one person sitting in a courtroom in

                                         -2-
Albuquerque, New M exico, does not have a significant or a great
sentencing disparity with some defendant that’s similarly situated for
the same offense that’s in a courtroom in M iami, Florida, or Los
Angeles, California; in other words, some consistency, some
uniformity so people are basically being treated the same for similar
conduct.

       Now , its noble and admirable that M r. Chaheine w ants to assist
in raising his son and being a father for his son. And you know,
oftentimes when a parent’s incarcerated, the people that suffer the
most are the kids and the family members. But if you start cutting or
reducing somebody’s sentence because they have a child, that it may
pose a hardship, then you’ve got to do it for everybody, because
virtually everybody that I see that’s incarcerated has family out
there. And that is what the sentencing comm ission has discouraged,
is senten— you know, taking those into account, because again, if you
start doing it for one, you’ve got to start doing it for everybody.

       Also, in terms of the level of cooperation, I certainly— I can’t
criticize the defendant for not going through with the transaction,
because he does have family in M exico. And it may very well [be],
based on what M r. Gonzales said, that the threats and the
intimidation that have occurred regarding the sister, I mean, had he
gone through with that transaction, [he] possibly could have
endangered the lives of those individuals he cares very much about.

       But there are those individuals, defendants who go ahead and
will undertake that kind of dangerous role, and then they get what’s
called the 5K or the substantial assistance. And again, I mean no
criticisms toward M r. Chaheine, but there is a distinction between
acceptance of responsibility and providing the level of cooperation
that he did provide compared to those defendants who will go ahead
and— go ahead and go further with a transaction. And so his level of
cooperation, while certainly it is admirable, it didn’t rise to the level
of a substantial assistance, and so that’s another factor that I’m
looking at.

       So w hen I look at this, when I see that he was initially looking
at five years, and through his acceptance of responsibility, through
the role adjustment, through the safety valve and his assistance, he’s
basically reduced his exposure by more than half.

                                    -3-
R. Vol. V at 16–18. The court then made the remark upon which M r. Chaheine

bases his appeal:

       I look at the sentencing factors, and again, the Kristl case, you know,
       whether or not you agree with it, right now it is controlling precedent
       in this circuit, and so I’m looking at the totality of this record, this
       Presentence Report, all the arguments that have been advanced. I
       find that the guideline sentence on the low end of 27 months is a
       reasonable sentence, taking into account the factors of 18 U.S.C.
       § 3553(a).

Id. at 18.

       Under United States v. Booker, 543 U.S. 220 (2005), we review sentences

for reasonableness. Reasonableness has both procedural and substantive

components. See Kristl, 437 F.3d at 1054–55. “To impose a procedurally

reasonable sentence, a district court must calculate the proper advisory Guidelines

range and apply the factors set forth in 18 U.S.C. § 3553(a).” United States v.

Tom , No. 05-2347, 2007 W L 2193657, at *2 (10th Cir. Aug. 1, 2007) (brackets

and internal quotation marks omitted). A sentence within a correctly calculated

Guidelines range is entitled on appellate review to a presumption of

reasonableness. See id. But it is improper for district courts to rely on the

presumption when imposing sentence. See Rita v. United States, 127 S.Ct. 2456,

2465 (2007). Rather, the sentencing judge is to consider the facts of the offense,

the defendant’s characteristics, and the purposes of sentencing in fashioning an

appropriate sentence. See id.




                                          -4-
      Because M r. Chaheine did not object to the district court’s mention of

Kristl at sentencing, we review only for plain error. See United States v.

Gonzalez-H uerta, 403 F.3d 727, 732 (10th Cir. 2005); United States v. Atencio,

476 F.3d 1099, 1105 n.6 (10th Cir. 2007) (en banc footnote). “Plain error occurs

when there is (1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of the

judicial proceedings.” Gonzales-H uerta, 403 F.3d at 732 (internal quotation

marks omitted). To satisfy the third prong, the defendant must show that the error

affected the outcome of the proceedings. See id. at 732–33. This includes

showing “a reasonable probability that, but for the error claimed, the result of the

proceeding would have been different.” See id. at 733 (internal quotation marks

omitted).

      M r. Chaheine has failed to make this third-prong showing. The district

court’s comments were directed at why M r. Chaheine should not be sentenced

differently from others with the same offense level and criminal history.

Uniformity, of course, is a strong reason for sentencing within the Guidelines

range. But recognition of the virtue of “uniformity so people are basically being

treated the same for similar conduct,” R. Vol. V at 16, is not the same as

imposing a presumption of reasonableness for Guidelines sentences. The court’s

reference to Kristl appears to be more a ratification of its previously expressed

reasoning than an additional factor that changed the court’s reasoning. In short,

                                           -5-
M r. Chaheine has not persuaded us that “the result of the proceeding would have

been different,” Gonzalez-Huerta, 403 F.3d at 733 (internal quotation marks

omitted), if the court had not considered Kristl.

      M r. Chaheine’s sentence is AFFIRM ED.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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