                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 21, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-4234
 v.                                                        (D. Utah)
 EUGENE T. COSEY,                              (D.C. No. 2:09-CR-00406-TS-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, 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.

      Following a three-day trial, defendant and appellant Eugene T. Cosey was

convicted of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). He was sentenced to forty months’ imprisonment. Arguing that 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        This order and judgment is not binding precedent except under the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 committed plain error in sentencing him, Mr. Cosey appeals his

sentence. We affirm.



                                 BACKGROUND

      As part of a graffiti investigation, Tooele City police officers discovered a

9mm Ruger handgun in a vehicle belonging to a juvenile, K.H. The handgun had

been reported stolen, which police subsequently confirmed to be true. When

officers interviewed K.H., he indicated that he had purchased the gun from a

black male called “Gino.” After reviewing a photo array, K.H. selected

Mr. Cosey as the man who sold him the gun. Additionally, K.H. stated that his

friend, C.B., was with him when he bought the gun. When officers interviewed

C.B., he corroborated K.H.’s story about the gun purchase and he also identified

Mr. Cosey in a photo array as the seller of the gun.

      As indicated above, Mr. Cosey was then convicted by a jury of being a

felon in possession of a firearm. In preparation for sentencing under the advisory

guidelines of the United States Sentencing Commission, Guidelines Manual

(2009) (“USSG”), the United States Probation Office prepared a presentence

report (“PSR”). The PSR calculated Mr. Cosey’s total offense level to be 20,

which included a four-level enhancement pursuant to USSG § 2K2.1(b)(6) for

possessing the firearm in connection with another felony offense. With a criminal




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history category of IV, this yielded an advisory sentencing range of 51 to 63

months.

      At the sentencing hearing, neither party objected to the PSR’s calculations,

except that Mr. Cosey objected to the application of the enhancement of

possessing the firearm in connection with another felony offense. The district

court heard argument on the issue, and ultimately ruled that there was insufficient

evidence to support the enhancement. Thus, the court determined Mr. Cosey’s

total offense level should be 16, which, with criminal history category IV, led to a

guideline range of 33-41 months. The district court did, however, during the

sentencing hearing orally misstate the guideline range, stating that the guideline

range was 31-43 months.

      Shortly after that misstatement, defense counsel made his argument about

the appropriate sentence and, in doing so, stated the correct guideline range of 33-

41 months: “now we’re dealing with a sentencing range of 33 to 41 months, and

ask you for a sentence within that range.” Tr. of Sentencing Hr’g at 28. The

government requested a sentence at the high end of the advisory guideline range.

Neither party specifically pointed out the judge’s misstatement.

      In imposing a sentence of forty months, the district court explained that it

had considered all the 18 U.S.C. § 3553(a) factors, stating:

      [T]he Court considers the offense in question here to be a serious
      one. . . . Mr. Cosey does have a long criminal history that began
      when he was 13 years old.

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             The Court would note that he was treated with a degree of
      leniency a number of times in his long history, both as a juvenile and
      as an adult, and yet Mr. Cosey did not take advantage of those
      lenient sentences. He seemed to learn nothing from his numerous
      exposures to the criminal justice system, and almost without fail, as
      soon as he was out of custody, he would re-offend. . . .
             At this point in his life, he has been unwilling or unable to
      conform his behavior to the rules of society, he’s repeatedly violated
      his parole and probation. And the Court is . . . concerned with those
      incidents . . . which involved violence or threats of violence.
             On the other hand, he has earned a GED and has attended two
      years of college, but he’s not put it to good use. He has a sporadic
      work history. He has wasted a good part of his life, by his own
      admission, chasing drugs.
             The Court believes the sentence it’s going to impose is that
      which will reflect those factors and that which will protect the public
      from further crimes of Mr. Cosey, deter him and others from criminal
      activity.
             . . . The Court would further note that a serious consideration
      for the Court is a sentence that will give the defendant an opportunity
      to receive the treatment he obviously needs for his mental illness.

Tr. of Sentencing Hr’g at 33-34. The court then sentenced Mr. Cosey to forty

months’ imprisonment, followed by thirty-six months of supervised release. This

appeal followed.



                                  DISCUSSION

      Following the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), we review sentences for procedural and substantive

reasonableness, deferring to the district court under the “familiar abuse-of-

discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

Mr. Corey argues the district court committed procedural error when it misstated

                                         -4-
the applicable advisory guideline range. Proper calculation of the advisory

guideline range is necessary for procedural reasonableness. United States v.

Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010), petition for cert. filed (Sept. 24,

2010) (No. 10-6721).

      Mr. Corey concedes that, since he lodged no objection to the district court’s

sentencing calculation at the time, we may review the claimed procedural error

only for plain error. Under the “rigorous” standard of plain error review, “we

may reverse a district court’s ruling only if [the defendant] demonstrates (1) error

(2) that is plain and (3) that affected [his] substantial rights. If these three

elements are met, then we may, in our discretion, correct an error that seriously

affects the fairness, integrity or public reputation of judicial proceedings.”

United States v. Wardell, 591 F.3d 1279, 1297-98 (10th Cir. 2009); see also

United States v. Hood, 615 F.3d 1293, 1301 (10th Cir. 2010). “Meeting all four

prongs is difficult, as it should be.” Puckett v. United States, 129 S. Ct. 1423,

1429 (2009) (internal quotations and citations omitted).

      The government concedes that the district court’s misstatement was error.

It argues, however, that it was not plain error. “‘Plain’ is synonymous with

‘clear’ or . . . ‘obvious.’” United States v. Olano, 507 U.S. 725, 734 (1993).

Mr. Cosey has the “burden of proving both plain error and prejudice.” United

States v. Gonzales, 558 F.3d 1193, 1199 n.6 (10th Cir.), cert. denied, 130 S. Ct.

169 (2009). Mr. Cosey has failed to meet his burden. “Error is plain only if it is

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‘clear or obvious under current law.’” United States v. Poe, 556 F.3d 1113, 1129

(10th Cir. 2009) (quoting United States v. Kelly, 535 F.3d 1229, 1238 (10th Cir.

2008)). “An error is clear and obvious when it is contrary to well-settled law.”

Id. (further quotation omitted). While certainly a technical or ministerial error of

some sort, the district court’s misstatement was not a violation of well-settled

law. There can be no doubt that the district court correctly calculated the

advisory guideline range, in that it based the range on the correct offense level

and criminal history category. It simply misspoke by transposing the last digits

of the two guideline range numbers.

      But even were we to agree that the error was plain, Mr. Cosey has failed to

establish that his substantial rights were violated. “For an error to have affected

substantial rights, the error must have been prejudicial: It must have affected the

outcome of the district court proceedings.” United States v. Romero, 491 F.3d

1173, 1179 (10th Cir. 2007) (further quotation omitted). As indicated above, Mr.

Cosey bears the burden to prove prejudice.

      Mr. Cosey argues that the error affected his substantial rights because the

sentence imposed was an “odd choice.” His explanation for its oddity is as

follows:

      The sentence imposed, 40 months, is a reasonable choice for the
      judge if he is assuming a 31-43 month range, as it is sort of a higher
      mid-range sentence. On the other hand, a 40 month sentence is a
      very odd choice for a 33-41 month range, as it is only one month less
      than the high end, and there is no apparent reason for not simply

                                         -6-
      imposing a sentence at the high end. It is to be expected that when
      choosing a sentence within a guideline range, the judge will
      ordinarily pick a low-end, midrange, or high-end sentence, and a
      sentence which merely takes one month off the high end is an odd
      choice, implying that the judge actually had in mind the mistaken
      range of 31-43 months when he chose the sentence.

Appellant’s Br. at 7-8. That is a purely speculative argument. And, the fact that

the sentence chosen seems “odd” to the defendant hardly establishes that the

district court abused its discretion in selecting that sentence. Indeed, the sentence

was within the correctly calculated guideline range and, as such, is presumptively

reasonable on appeal. United States v. Gambino-Zavala, 539 F.3d 1221, 1232

(10th Cir. 2008) (“On appeal, we accord a sentence within the Guidelines range a

presumption of reasonableness.”). Mr. Cosey’s speculation about the district

court’s selection of a within-guidelines-range sentence fails to rebut the

presumptive reasonableness of the sentence.

      Furthermore, as the government points out, Mr. Cosey has not demonstrated

a reasonable probability that, were we to remand this case for resentencing, the

result would be different. The district court explained why it chose a sentence

towards the top of the guideline range, in that it noted Mr. Cosey had been

granted leniency in earlier sentencing decisions, to no avail. The court also stated

that Mr. Cosey needed to have sufficient time to receive the mental health

treatment he needed. In short, Mr. Cosey has failed to demonstrate prejudice

from his forty-month sentence.


                                         -7-
                         CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




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