                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 May 16, 2018
                                             PUBLISH         Elisabeth A. Shumaker
                                                                 Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                Plaintiff - Appellant,
        v.                                             No. 17-7016
 RAYMOND A. BARNES,

                Defendant - Appellee.
 -----------------------------------------
 UNITED STATES OF AMERICA,

                Plaintiff - Appellant,
        v.                                             No. 17-7017
 CHRISTOPHER A. BROWN,

                Defendant - Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF OKLAHOMA
                 (D.C. NO. 6:13-CR-00017-RAW-1 and 2)


April J. Anderson, Attorney (John M. Gore, Acting Assistant Attorney General,
and Bonnie I. Robin-Vergeer, Attorney, with her on the briefs), United States
Department of Justice, Civil Rights Division, Appellate Section, Washington,
D.C., for Appellant.

Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell,
Federal Public Defender, with him on the brief), Office of the Federal Public
Defender, Tulsa, Oklahoma, for Appellee Barnes.
Jimmy L. Hopkins, Tahlequah, Oklahoma, for Appellee Brown.


Before TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
Judges.


TYMKOVICH, Chief Judge.


       This is the second appeal arising from crimes committed by two corrections

officers, Raymond Barnes and Christopher Brown, while employed at the

Muskogee County Jail. The government argues the sentences the district court

imposed after we remanded for resentencing are substantively unreasonable.

Because we find the district court did not abuse its discretion in granting a

downward variance from the United States Sentencing Guidelines, we affirm.

                                    I. Background

       Barnes and Brown both held administrative roles at the Muskogee County

Jail. Barnes served as the Jail Superintendent and Brown worked alongside him

as the Assistant Jail Superintendent. Our previous opinion extensively recounted

the abuse both Barnes and Brown perpetrated on the jail’s inmates. See United

States v. Brown, 654 F. App’x 896, 900–902 (10th Cir. 2016) (unpublished). In

short, both defendants physically abused prisoners in a variety of ways, engaged

in excessive force against inmates, and intimidated other jail employees to

conceal their illicit activities.



                                         -2-
      Authorities charged Barnes and Brown with three counts of assaulting or

conspiring to assault prisoners at the jail. In 2014, a jury convicted both of

various charges. The jury convicted Barnes of one count of conspiracy to violate

constitutional rights and two counts of deprivation of rights under color of law.

See 18 U.S.C. §§ 241, 242. The jury found Brown, on the other hand, guilty of

one count of conspiracy to violate constitutional rights, one count of deprivation

of rights under color of law, and one count of making a false statement to a

federal agent. See 18 U.S.C. § 1001. The district court sentenced Barnes to

twelve months’ imprisonment followed by twenty-four months of supervised

release. Brown received a sentence of six months’ imprisonment followed by

thirty-six months of supervised release.

      In the first appeal, Barnes and Brown challenged their convictions. The

government cross-appealed, arguing both sentences were procedurally and

substantively unreasonable. We affirmed the convictions, but vacated the

sentences as procedurally unreasonable because the district court had not

adequately explained the basis for the sentences imposed. Brown, 654 F. App’x

at 900. Since we resolved the case on procedural unreasonableness, we declined

to reach the government’s argument that the sentences were substantively

unreasonable.

      On remand, the district court held a hearing, took additional testimony from

witnesses, and heard arguments about the appropriateness of a variance. The

                                           -3-
court concluded it would not apply the advisory guidelines range of 70 to 87

months and granted a variance to each defendant. Accordingly, the court

resentenced Barnes to twenty-four months of imprisonment followed by twenty-

four months of supervised release. The court also gave Brown a new sentence of

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

All told, the district court doubled each of their terms of imprisonment.

      The government again appeals, arguing the new sentences are substantively

unreasonable. We affirm. The district court did not abuse its discretion in

applying the relevant sentencing factors as reflected in its explanation of the

sentences based on defendant-specific facts and circumstances.

                                   II. Analysis

      The government contends the district court abused its sentencing discretion

by imposing too lenient a sentence on both defendants. The government urges us

to find the sentences substantively unreasonable.

      A. Substantive Reasonableness

      We review a district court’s sentencing determination for substantive

unreasonableness by considering whether the sentence “is unreasonable given the

totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors.” United

States v. Caiba-Antele, 705 F.3d 1162, 1165 (10th Cir. 2012). We review a

sentence’s length for abuse of discretion. United States v. Walker, 844 F.3d 1253,

1255 (10th Cir. 2017). A district court abuses its sentencing discretion only if the

                                         -4-
sentence “‘exceeded the bounds of permissible choice.’” United States v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United States v. Ortiz,

804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). We “will reverse only if the sentence

imposed was ‘arbitrary, capricious, whimsical, or manifestly unreasonable.’”

United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (quoting United

States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012)).

      When determining a sentence, a court must consider the seven statutory

factors set forth in § 3553(a). The factors include:

             1.     The nature and circumstances of the offense and
             the history and characteristics of the defendant;

             2.     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;

             3.    the sentences that are legally available;

             4.    the Sentencing Guidelines;

             5.    the Sentencing Commission’s policy statements;

             6.    the need to avoid unwarranted sentence
             disparities; and

             7.    the need for restitution.

See 18 U.S.C. § 3553(a) (1–7).

      We give substantial deference to the district court’s weighing of these

factors. “The sentencing judge is in a superior position to find facts and judge


                                         -5-
their import under § 3553(a) in the individual case.” Gall v. United States, 552

U.S. 38, 51 (2007). “The judge sees and hears the evidence, makes credibility

determinations, has full knowledge of the facts and gains insights not conveyed

by the record.” Id. “It has been uniform and constant in the federal judicial

tradition for the sentencing judge to consider every convicted person as an

individual and every case as a unique study in the human failings that sometimes

mitigate, sometimes magnify, the crime and the punishment to ensue.” Id. at 52.

In short, “the uniqueness of the individual case . . . does not change the

deferential abuse-of-discretion standard of review that applies to all sentencing

decisions.” Id.

      And when we review a downward variance from the recommended

guidelines range, as we do here, even more solicitude to the sentencing court is

appropriate. A “downward variance is based simply on the district court’s

discretionary authority to consider ‘the nature and circumstances of the offense’”

and select “‘a sentence sufficient, but not greater than necessary,’ to comply with

all of the purposes of sentencing.” See DeRusse, 859 F.3d at 1237 (quoting 18

U.S.C. § 3553(a)) (emphasis added).

      In addition, our review must acknowledge that sentencing courts can and

should “engage in a holistic inquiry of the § 3553(a) factors.” See United States

v. Lente, 759 F.3d 1149, 1174 (10th Cir. 2014) (quoting United States v. Lopez-

Macias, 661 F.3d 485, 492 (2011)). A district court properly engages in this

                                          -6-
inquiry when it bases its decision on specific, articulable facts supporting the

variance and does not employ an impermissible methodology or rely on facts that

would make the decision out of bounds. DeRusse, 859 F.3d at 1236.

      For these reasons, we uphold even substantial variances when the district

court properly weighs the § 3553(a) factors and offers valid reasons for the

chosen sentence.

      Consider, for example, DeRusse, where, we upheld a substantial variance

from a 108–135 months guidelines range down to 70 days already served. In so

holding, we rejected the government’s suggestion that a “variance based on the

district court’s discretionary authority should be constrained by . . . the specific

requirements listed in [the] guideline . . . .” Id. at 1237. “A variance,” we

explained, “can be imposed without compliance with the rigorous requirements

for departures.” Id. (quoting Gantt, 679 F.3d at 1247).

      Rather than looking to compliance with the Guidelines, we looked instead

to whether the district court properly weighed all the § 3553(a) factors. We

concluded it had, ultimately agreeing with the district court that the crime

represented “aberrational” behavior that was partially attributable to mental health

issues for which the defendant was receiving treatment. Id. at 1240. Although

we would likely not have “reached the same sentencing decision in the first

instance,” we concluded the court did not abuse its substantial discretion in

choosing the sentence. Id. at 1241.

                                          -7-
        In short, then, the adequacy of the court’s consideration and explanation of

the § 3553(a) factors is the keystone of our analysis. We look to the record to

determine whether the district court satisfactorily engaged and examined the

factors in a holistic fashion. But the court need not rely on every single

factor—no algorithm exists that instructs the district judge how to combine the

factors or what weight to put on each one.

        The distinction between procedural and substantive reasonableness is a

significant but not necessarily sharp one, especially as it concerns a sentencing

court’s explanation for the sentence. That explanation serves both procedural and

substantive functions.

        First, just as a court’s consideration of the § 3553(a) factors is a procedural

requirement, so is its explanation of how those factors apply. In fact, the

explanation is the procedural step that shows the factors have been considered. In

Gall, the Supreme Court said “failing to adequately explain the chosen sentence”

can be “a significant procedural error.” 552 U.S. at 51. In this appeal, the

government does not challenge the sentences’ procedural reasonableness. Aple.

Reply Br. at 3 (“To be clear, the United States is not arguing that the district court

failed to adequately explain its reasons—i.e., that it made procedural errors

. . . .”).

        Second, the content of the district court’s explanation is relevant to whether

the length of the sentence is substantively reasonable. To determine substantive

                                           -8-
reasonableness, Gall instructs that we “must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” 552 U.S. at 51. Part of that deference extends to the court’s analysis

of the § 3553(a) factors. See United States v. Smart, 518 F.3d 800, 808 (10th Cir.

2008) (holding appellate courts must grant deference “not only to a district

court’s factual findings but also to its determinations of the weight to be afforded

to such findings.”). A sentence is more likely to be within the bounds of

reasonable choice when the court has provided a cogent and reasonable

explanation for it.

         This dual purpose of the court’s sentencing explanation is one reason the

line between procedural and substantive reasonableness is blurred. See United

States v. Reyes-Santiago, 804 F.3d 453, 468 n.19 (1st Cir. 2015) (“The line

between procedural and substantive sentencing issues is often blurred. . . . [and]

‘the lack of an adequate explanation can be characterized as either a procedural

error or a challenge to the substantive reasonableness of the sentence.’”) (quoting

United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015) (internal

quotation marks and brackets omitted)); see also United States v. Liou, 491 F.3d

334, 337 (6th Cir. 2007) (“[T]he border between factors properly considered

‘substantive’ and those properly considered ‘procedural’ is blurry if not porous

. . . .”).




                                           -9-
      Below, we consider the explanation given for the challenged sentences to

assist us in determining whether the district court abused its discretion in

weighing the § 3553(a) factors—and thus whether the sentences are substantively

reasonable. See United States v. Rentz, 696 F. App’x 348, 352 (10th Cir. 2017)

(unpublished) (“[B]oth the record and the district court’s stated reasoning provide

us an adequate basis to assess the substantive reasonableness of the sentence

imposed.”). The dissent argues that in considering the district court’s

explanation, we rely “on a rationale that instead fits the inquiry for procedural

reasonableness.” Dissent at 7. But while courts should avoid unduly blurring the

line between substantive and procedural reasonableness, there is nevertheless

some unavoidable overlap. See United States v. Jeter, 721 F.3d 746, 756 (6th Cir.

2013) (“[C]laims of substantive and procedural reasonableness overlap in that

they both concern whether the district court properly considered certain § 3553(a)

factors.”).

      With these considerations in mind, we turn to the district court’s sentencing

analysis in this case.

                     1. Barnes

      The district court properly addressed each of the § 3553(a) factors in

sentencing Barnes.

      First, the court based its sentence on the trial record itself, witness

testimony at the resentencing hearing, and statements and other submissions from

                                         -10-
members of Barnes’s family, co-workers, and friends. The court then walked

through the sentencing factors contained in § 3553(a), observing that despite the

stressful environment where Barnes worked, “there [was] no justification for the

actions which resulted in [his] conviction.” App. 609. Even so, the district court

considered Barnes to be a poor candidate for a guidelines sentence. He was age

46 at sentencing, and married with three children. In addition, he was raising four

nieces and nephews he took custody of after his sister died (the father, who is in

the country illegally, was unable to care for them). At the time of resentencing,

his natural children were aged 14, 20, and 21, and the other children were 11, 15,

16, and 17. The record reflects that his sister’s children were performing better in

school and socially since Barnes and his wife took custody.

      Barnes was also fighting tongue cancer and had other health problems

which required “14 medications daily.” Id. at 610–611. Prior to sentencing,

Barnes had led “a stable lifestyle and appear[ed] active in his community.” Id.

The court concluded Barnes’s risk of recidivism would be “low to nonexistent and

he posed no apparent threat to the community.” Id. at 611. Barnes had not been

convicted of previous crimes, and the district court considered its two-year prison

sentence “significant time”—especially coupled with supervisory release.

      Considering the seriousness of the crime and deterrence, the court

adequately reviewed the significant impact the sentence would have on Barnes’s

career and family as well as on similarly situated officers. Overall, the court

                                        -11-
determined “the sentence imposed will provide specific and general deterrence to

any future anti-social behavior of this defendant and others, especially those in

law enforcement.” Id. at 611–612. The court reached this conclusion after a

thorough discussion of the defendant’s specific situation—he would no longer be

able to work in law enforcement, and, we note, would face all the ancillary

consequences attending a felony conviction. The court further reasoned the

sentence would properly deter similarly-situated “Law Enforcement Officers or

Corrections Officers who learn of the facts surrounding this case and may be

tempted to engage in similar conduct.” Id. at 612.

      In sum, the district court thoroughly supported its variance with an analysis

of the § 3553(a) factors. The court had “taken notice of the advisory guideline

range” and could not “find that a sentence within that advisory range is necessary

to comport with the factors identified in United States Code Section 3553(a) and

to achieve the overall goal of sentencing.” Id. After considering the guidelines

factors as a whole, the court decided to vary downward from the guidelines range

to comport with the broader goals of sentencing. In view of its careful

discussion, we find that the court did not abuse its discretion in considering and

justifying a variance based on the § 3553(a) factors.




                                        -12-
             2. Brown

      The district court also properly addressed each of the § 3553(a) factors for

Brown.

      First, the court considered the trial testimony concerning Brown’s

culpability and took additional testimony at the sentencing hearing. The court

then noted that Brown was not the ringleader of the assaults. In fact, “the

majority of witnesses [at trial] testified that they did not observe Brown assault

any inmates, nor did they hear him give orders to any other staff instructing them

to assault or mistreat the inmates.” Id. at 652. Reviewing Brown’s personal

characteristics, the court observed that Brown has no criminal record, “maintains

a stable lifestyle with no documented substance abuse or other anti-social

behavior,” has “five minor children,” and exhibits a “low to nonexistent” risk of

recidivism. Id. The court thus explicitly detailed why Brown’s personal

attributes and dependent-heavy family structure might mitigate the need for a

standard guidelines sentence.

      Recognizing the seriousness of the crime and the need for deterrence, the

court noted that it was imposing “a significant portion of imprisonment followed

by a period of Supervised Release”; Brown would no longer be able to work in

law enforcement; and his family had already been and “[would] continue to be

significantly impacted.” Id. at 652–653. The court found “[n]othing in the

defendant’s background . . . suggest[ing] that a sentence within the advisory

                                        -13-
guideline range is needed to deter him from any further law violations or

misconduct.” Id. at 653. The court was also confident the selected sentence

would deter Brown from future crime and other officers from “similar

misconduct.” Id.

      In discussing the remaining § 3553(a) factors and “the sentencing options

available for this defendant,” the court could not “find that a sentence within that

advisory range is necessary to comport with the factors identified in [the

guidelines] and to achieve the overall goal of sentencing.” Id. at 653–654. The

court thought the combination of prison time and supervised release, along with

the mitigating circumstances in Brown’s personal history, warranted a sentence of

12 months’ incarceration and three years of supervised release.

      As in its analysis of Barnes’s sentence, then, the court holistically

considered the § 3553(a) factors and supported its analysis with facts specific to

Brown’s situation. The court did not rely on impermissible factors or rely

exclusively on one factor. We thus find the court did not abuse its discretion in

justifying its variance in Brown’s sentence as well.

      B. The Government’s Arguments

      The government points to several cases where we have found low sentences

to be substantively unreasonable: United States v. Friedman, 554 F.3d 1301 (10th

Cir. 2009), United States v. Walker, 844 F.3d 1253 (10th Cir. 2017), and United




                                         -14-
States v. Morgan, 635 F. App’x 423 (10th Cir. 2015) (unpublished). The

government argues these cases control the outcome of this case. We are not

persuaded these cases compel reversal of the sentences here.

         In Friedman, the defendant pleaded guilty to bank robbery, and his

guidelines range was 151 to 188 months. 554 F.3d at 1302, 1308. The district

court varied downward to a sentence of 57 months. We concluded the sentence

was substantively unreasonable because “(1) the defendant had an extensive

history of recidivism and lacked remorse and (2) the 57-month sentence created

unwarranted sentence disparities.” Walker, 844 F.3d at 1259 (summarizing

Friedman, 554 F.3d at 1307–14). Friedman admitted to committing eight bank

robberies, and at least two of the “robberies involved weapons or the threat of

weapons.” Friedman, 554 F.3d at 1309. Friedman himself acknowledged he had

“only been able to remain free of prison for twenty months out of the

twenty-seven years of his adult life.” Id. Nothing in Friedman’s record of

consistent reversion to crime suggested that he would not again return to a life of

crime.

         Yet in the face of these strong indications of a propensity to recidivate, the

district court provided no specific facts to support its conclusion that the

defendant would not be prone to recidivism. Instead, the judge cited only “a

feeling about [him] that [he] can make it and [he’s] going to.” Friedman, 554




                                           -15-
F.3d at 1307. Because the court did not cite to any specific facts supporting its

conclusion, we concluded the sentence was arbitrary and capricious.

       Here, in contrast, the district court set forth concrete reasons why it would

vary below the Guidelines. Since the court rooted its decision in specific,

permissible facts particular to each defendant, Friedman does not compel a

contrary conclusion.

       Similarly, Walker considered a sentence for two counts of bank robbery

that had been reduced from a range of 151–188 months to 33 days of time-served

in pretrial detention. We found the sentence substantively unreasonable because

the district court failed to weigh the § 3553(a) factors holistically, instead relying

“almost exclusively” on one factor—Walker’s “newfound sobriety”—to justify

the sentence. Walker, 844 F.3d at 1259.

       That is far from the case before us now. Here, the court carefully

addressed each factor and concluded its assessment of all of the factors counseled

a downward variance for each defendant. While it is doubtful we would have

weighed or applied the factors the same way in this case given the seriousness of

the crimes, on balance, the court did not impose sentences outside permissible

choice. 1

       1
        The government and the dissent both cite to United States v. Koon, 518
U.S. 81, 110 (1996), for the proposition that the district court should not consider
the permanent loss of law-enforcement careers when varying from the Guidelines.
But Koon involved a downward departure rather than a downward variance. This
                                                                        (continued...)

                                         -16-
      Finally, in Morgan, we reversed a downward variance from a range of

41–51 months to five years of probation for a politician convicted of bribery.

“[T]he court’s decision to vary downward to probation was based on the

following: (1) seriousness of the offense, (2) the letters of support, and (3)

deterrence.” 635 F. App’x at 448. We found the district court “paid only lip

service to the seriousness of the offense” because it explained its “fair sentence”

could be “reached by first calculating the guideline sentence based on the crime

of conviction (Count 63) and then dividing it by 63, the total number of counts,

including the mistried and acquitted counts . . . .” Id. By proffering this

rationalization, the district court mitigated the seriousness of the convicted

offense with the mistried and acquitted counts, which should not have made the

convicted count any less blameworthy. This sentencing methodology was

arbitrary and considered impermissible factors, making the sentencing

substantively unreasonable. The court similarly placed undue emphasis on

supporting letters while overly discounting the need for deterrence.


      1
        (...continued)
distinction is important because Koon predated Booker v. United States, 543 U.S.
220 (2005), which made the sentencing guidelines advisory rather than mandatory
and “allow[ed] district courts to exercise discretion to vary from the guideline
range if a variance would be appropriate under the § 3553(a) factors.” United
States v. Beltran, 571 F.3d 1013, 1019 (10th Cir. 2009). A downward departure
must conform to the Guidelines and give a specific basis for why the Guidelines
do not properly account for the defendant’s situation. A variance, on the other
hand, is based entirely on the sentencing court’s discretionary authority as long as
the court justifies its sentence based on the § 3553(a) factors.

                                         -17-
      In sum, we found the court’s sentence substantively unreasonable in

Morgan because the court considered impermissible factors and failed to consider

an important factor: general deterrence. In the present case, however, the district

court did not rely on impermissible factors, nor did it fail to consider any

important factors.

      Thus, none of the cases the government cites calls into question our

conclusion here.

      The government further suggests the district court could not justify a

variance by relying on facts that the Guidelines already took into account. But

that suggestion is mistaken. “[U]nder current precedent ‘[d]istrict courts have

broad discretion to consider particular facts in fashioning a sentence under 18

U.S.C. § 3553(a), even when those facts are already accounted for in the advisory

guidelines range.’” Lente, 759 F.3d at 1169 (quoting United States v. Yanez-

Rodriguez, 555 F.3d 931, 946 (10th Cir. 2009)).

      We make one final note on the dissent’s thoughtful but overly complex

approach in reaching a contrary conclusion. The dissent maps sentences for

convictions under §§ 241 and 242 onto a histogram in order to show that the

sentences for Barnes and Brown were too low for the otherwise prototypical

nature of their offenses. But there is no “mathematical formula that uses the

percentage of a departure as the standard for determining the strength of the

justifications required for a specific sentence.” Gall, 552 U.S. at 47. “Our

                                         -18-
sentencing scheme ‘seeks to eliminate not all sentencing disparities, but only

unwarranted disparities.’” Lente, 759 F.3d at 1169 (quoting United States v.

Contreras, 180 F.3d 1204, 1210 (10th Cir. 1999)). We are confident that district

courts can responsibly examine general sentencing trends for a particular crime

without losing sight of the individual characteristics of the defendants before it.

      And in any event, the court here “reviewed its sentences in prior

deprivation of rights cases” and was “satisfied that the sentence” would “be

consistent and avoid unwarranted disparities.” App. 735. Even if the disparities

factor weighs in favor of a higher sentence, the district court considered it

alongside other factors and the facts of this case and did not abuse its discretion

in imposing the sentences it did.

                                 III. Conclusion

      Sentencing is both art and science, and it may be the hardest job our district

judges undertake. While we are confident we would have imposed higher

sentences based on the record in this case, we cannot say the district judge

exceeded the bounds of permissible choice. We rely on the discretionary

authority of our district courts as a powerful tool to ensure individualized

consideration of each defendant’s particular circumstances and characteristics.

      After careful examination, we conclude that authority was not exceeded

here. The dissent thoughtfully considers the district court’s analysis of each of

the individual § 3553(a) factors and ultimately concludes that the sentences are

                                         -19-
too lenient. We have no substantial quarrel with any particular point in its

analysis, but our application of the standard of review leads us to uphold the

sentences on remand. We therefore AFFIRM.




                                        -20-
United States v. Barnes, No. 17-7016, and
United States v. Brown,No. 17-7017
BACHARACH, J., dissenting.

      This appeal stems from crimes committed by Mr. Raymond Barnes

and Mr. Christopher Brown. Mr. Barnes was the Jail Superintendent for the

Muskogee County Jail; Mr. Brown was the Assistant Jail Superintendent.

Together, they abused prisoners and were convicted under 18 U.S.C. §§

241 and 242, which cover conspiracy to violate constitutional rights and

willful imposition of cruel and unusual punishment. In addition, Mr. Brown

was convicted of making a false statement to a federal agent. See 18 U.S.C.

§ 1001. The district court imposed prison sentences of 24 months for Mr.

Barnes and 12 months for Mr. Brown.

      The government appeals, arguing that the sentences were

substantively unreasonable because they were too light. The majority

rejects this argument on the ground that the district court adequately

explained its downward variances from the guideline range. I respectfully

dissent.

I.    The Abuses

      The government’s evidence of abuse included so-called “Meet and

Greets,” other forms of excessive force, and intimidation against

subordinates to conceal what was taking place.
      A.    Meet and Greets

      The abuses often began when prisoners arrived at the jail. For new

arrivals expected to be difficult, Mr. Barnes and Mr. Brown arranged “meet

and greets.” The “greetings” would include slamming shackled prisoners to

the ground after they exited the prison transport van.

      Mr. Jace Rice was an inmate who received this “greeting.” Before he

arrived, Mr. Barnes had told two jailers that “[w]hen [Mr. Rice] comes out

of the van . . . the first thing that touched the ground should be his head.”

Appellants’ App’x at 302. With this instruction, a jailer pulled Mr. Rice

out of the van and threw him onto his head. Officers piled on top of Mr.

Rice to put on new restraints. He was then carried by his feet into the jail

with his head on the ground. Mr. Barnes warned Mr. Rice that if he

misbehaved, he could expect the same treatment again.

      Another new inmate, Mr. Gary Torix, came to the Muskogee County

Jail with staples in his head from an earlier injury. In the presence of Mr.

Barnes, jailers took Mr. Torix from the van, slammed him to the ground,

and carried him face-down into a cell as he bled from his forehead. The

bleeding continued for over an hour.

      Meet and greets were also conducted for Mr. Herbert Potts and Mr.

Riley Starr. Mr. Potts’s “greeter” was Mr. Brown. When Mr. Potts arrived,

he was pulled to the ground. Mr. Starr received a similar “greeting,” with

jailers carrying him inside and hitting his head against the jail door.

                                       2
      B.    Other Instances of Abuse

      The abuse was not confined to the meet and greets. On one occasion,

Mr. Barnes was called to assist with an incident. When he arrived, he

approached an inmate (Mr. Jeremy Armstead) who had done nothing

wrong. Without asking any questions, Mr. Barnes attacked Mr. Armstead.

Mr. Armstead was restrained and forced to sit in a cell wearing a helmet

for almost two hours. The ordeal resulted in a shoulder injury.

      Another inmate, Mr. Alton Murphy, was also abused. When he got

“mouthy,” Mr. Barnes snuck up from behind and put his arms through Mr.

Murphy’s arms and around Mr. Murphy’s head, applying a “full nelson.”

Id. at 309. Mr. Barnes and Mr. Murphy fell to the ground, and Mr. Brown

piled on top. Another guard pepper sprayed everyone in the pile.

      C.    The Cover-Up

      Mr. Barnes and Mr. Brown not only orchestrated the abuses but also

engaged in a cover-up. The cover-up was exposed when former jailers

testified that they had feared retaliation for reporting inmate abuse. These

fears led some jailers to change incident reports, removing descriptions of

mistreatment. One jailer testified that her shift had been changed twice

after reporting abuses.

      The cover-up continued when an FBI agent asked Mr. Brown about

the meet and greets. Mr. Brown responded that new inmates had been

“asked to . . . step out of the vehicle first” and then “asked to get on the

                                       3
ground.” Id. at 455. Mr. Brown added that if an inmate did not voluntarily

comply, the jailers “would gently place the inmate onto the ground.” Id.

II.    Procedural History

       This is the second appeal in this case. After the trial, Mr. Barnes and

Mr. Brown appealed their convictions and the government cross-appealed,

challenging Mr. Barnes’s twelve-month prison sentence and Mr. Brown’s

six-month prison sentence as procedurally and substantively unreasonable.

We affirmed the convictions and vacated the sentences as procedurally

unreasonable. United States v. Brown, 654 F. App’x 896, 900 (10th Cir.

2016) (unpublished). But we declined to reach the government’s argument

that the sentences were substantively unreasonable.

       On remand, the district court resentenced Mr. Barnes and Mr. Brown,

doubling their sentences and correcting procedural errors committed at the

first sentencing. On appeal, the government again argues that the sentences

are substantively unreasonable.

III.   Standard of Review

       We review a district court’s sentencing determination for substantive

reasonableness. United States v. Caiba-Antele, 705 F.3d 1162, 1165 (10th

Cir. 2012). For this review, we consider whether the district court abused

its discretion by imposing a sentence that is unreasonably short. United

States v. Walker, 844 F.3d 1253, 1255 (10th Cir. 2017). We may reverse

only if the sentence “‘exceeded the bounds of permissible choice.’” United

                                       4
States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United

States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)).

IV.   Substantive Reasonableness of the Sentences

      In addressing whether the sentences were substantially reasonable,

the parties discuss four of the statutory factors 1:

      1.    the need to avoid unwarranted sentence disparities;

      2.    the nature and circumstances of the offense and the history and
            characteristics of the defendant;

      3.    the need for the sentences to reflect the seriousness of the
            crimes, deter future criminal conduct, prevent the defendants
            from committing more crimes, and provide rehabilitation; and

      4.    the sentencing guidelines.

18 U.S.C. § 3553(a)(1)–(2), (4), (6).




1
      Three other statutory factors exist:

      1.    the sentences that are legally available,

      2.    the Sentencing Commission’s policy statements, and

      3.    the need for restitution.

18 U.S.C. § 3553(a)(3), (5), (7). But these factors were not discussed by
the parties, the district court, or the majority.


                                        5
      A.    Difference Between Substantive and Procedural
            Reasonableness

      A party can challenge a sentence as procedurally or substantively

unreasonable. When addressing appellate arguments involving procedural

reasonableness, we consider whether the district court

           improperly calculated the guideline range,

           treated the guidelines as mandatory,

           failed to consider the statutory factors,

           based the sentence on erroneous facts, or

           failed to adequately explain the chosen sentence.

Gall v. United States, 552 U.S. 38, 51 (2007). In contrast, when addressing

substantive reasonableness, we consider whether the district court abused

its discretion in determining that the length of the sentence was reasonable

based on the statutory factors. See United States v. Sayad, 589 F.3d 1110,

1116 (10th Cir. 2009) (stating that substantive reasonableness “involves

‘whether the length of the sentence is reasonable given all the

circumstances of the case in light of the [statutory] factors’” (quoting

United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007))).

      The government’s challenge to the sentences involves substantive

reasonableness, not procedural reasonableness. In light of the nature of this

challenge, we must do more than determine whether the district court

considered the appropriate factors. Consideration of the appropriate factors

                                       6
would render the sentences procedurally reasonable, not substantively

reasonable. Because the government argues that the sentences are

substantively unreasonable, we must determine whether the district court

abused its discretion in concluding that the statutory factors had merited

the given sentences. See Kimbrough v. United States, 552 U.S. 85, 110–11

(2007); see also United States v. Sanchez-Leon, 764 F.3d 1248, 1268 n.15

(10th Cir. 2014) (stating that for substantive reasonableness, we consider

whether the district court imposed a sentence that fairly reflects the

statutory factors).

      The majority affirms, reasoning that the district court’s “explanation

of the sentences [was] based on defendant-specific facts and

circumstances.” Majority Op. at 4. This reasoning conflates procedural and

substantive reasonableness. Compare Majority Op. at 8 (concluding that

Mr. Barnes’s sentence was substantively reasonable because the court had

“thoroughly supported its variance with an analysis of the [statutory]

factors”), with Majority Op. at 3 (stating that an earlier panel regarded the

initial sentences as procedurally unreasonable because the district court

had not “adequately explained the basis for the sentences imposed”). In

gauging whether the new sentences are substantively reasonable, we are

not considering the adequacy of the district court’s explanation. Instead,

we are considering the adequacy of the sentences themselves. See pp. 6–7,

above.

                                      7
      The majority blurs this distinction, identifying the analytical

“keystone” of substantive reasonableness as “the adequacy of the court’s

consideration and explanation of the [statutory] factors.” Majority Op. at 8.

In taking this approach, the majority relies on United States v. DeRusse,

859 F.3d 1232 (10th Cir. 2017). But in DeRusse, we did more than consider

whether the district court adequately explained the sentencing variance; we

also examined the reasonableness of the district court’s conclusion based

on its consideration of the statutory factors. 859 F.3d at 1237. Here the

majority omits that step, reviewing the sentences for substantive

reasonableness based on a rationale that instead fits the inquiry for

procedural reasonableness.

      The majority points out that there is some unavoidable overlap

between procedural and substantive reasonableness. Majority Op. at 11.

According to the majority, this overlap calls for review of the district

court’s explanation when addressing both substantive and procedural

reasonableness. But the function of the district court’s explanation differs

when we consider substantive and procedural reasonableness. For

procedural reasonableness, we consider whether the district court

adequately explained its sentence using the statutory factors. See p. 6,

above. We go a step further for substantive reasonableness, considering the

reasonableness of the result. See pp. 6–7, above.



                                      8
      B.    Extent of the Variance

      In determining whether the sentences were substantively reasonable,

we must consider the district court’s explanation for the extent of the

variances. Gall v. United States, 552 U.S. 38, 51 (2007). Here the

guideline ranges were 70–87 months, and the district court varied

downward by roughly 66% (46 months) for Mr. Barnes and by roughly 83%

(58 months) for Mr. Brown.

      In considering the justifications for these downward variances, I

recognize the institutional advantages of the district court, which had an

opportunity to observe the defendants. United States v. Walker, 844 F.3d

1253, 1255 (10th Cir. 2017). Nonetheless, we bear an obligation to assess

whether the sentences fell within the district court’s discretion. Id.

      C.    Minimizing Disparities Among Sentences Nationwide for
            Violations of 18 U.S.C. §§ 241 and 242

      Federal law calls for avoidance of unwarranted sentence disparities,

and “[t]he need to avoid [such] disparities is a critical sentencing factor.”

United States v. Lente, 647 F.3d 1021, 1039 (10th Cir. 2011); see 18

U.S.C. § 3553(a)(6). To apply this factor, we must consider sentences

imposed across the country for violations of §§ 241 and 242. These crimes

have generally been seen as severe crimes, meriting severe sentences. See

United States v. McQueen (Alexander), 727 F.3d 1144, 1160 (11th Cir.

2013) (“As best as we can tell, the federal courts have treated violations of


                                       9
§ 241 by police or corrections officers as serious crimes meriting far

higher sentences than the sentences [of twelve months and one month].”).

      The general practice is reflected in this diagram, which shows the

sentences for 20 other convictions for excessive force under 18 U.S.C.

§§ 241 and 242:




2



In each case, a correctional officer was convicted for using or failing to

stop excessive force against an inmate. None resulted in the inmate’s

death. Nineteen of the twenty other sentences were more severe than either

Mr. Barnes’s or Mr. Brown’s sentence.

      In only one case—United States v. McQueen (Alexander)—was the

sentence as low as the one meted out to Mr. Barnes or Mr. Brown. Mr.

2
      Sources for these sentences appear in the appendix. Sentences
marked with an asterisk include sentences for crimes other than a violation
of 18 U.S.C. § 241 or § 242. These crimes include Mr. Brown’s other crime
(making a false statement to a federal officer). 18 U.S.C. § 1001. The other
crimes included in the 20 other cases involved filing a false report,
perjury, falsification of records, witness tampering, and obstruction of
justice. 18 U.S.C. §§ 371, 1512, 1519, 1623.

                                     10
McQueen faced a guideline range of 151–188 months’ imprisonment.

McQueen, 727 F.3d at 1150. A co-defendant’s trial had resulted in a

mistrial, and the co-defendant then pleaded guilty to a misdemeanor. Id. at

1149. The district court expressed concern for the disparity between Mr.

McQueen’s sentence and his co-defendant’s maximum sentence of 12

months, leading the court to sentence Mr. McQueen to 12 months’

imprisonment. Id. at 1150.

     The government appealed, and the Eleventh Circuit held that Mr.

McQueen’s sentence was substantively unreasonable, calling it “wholly

insufficient to achieve the purposes of sentencing.” Id. at 1157. On

remand, the district court continued to express deep concern about the

disparity between Mr. McQueen’s guideline range and the co-defendant’s

mandatory maximum sentence of 12 months. See Resentencing Hearing Tr.

at 30, United States v. McQueen (Alexander), No. 11-cr-20393-CMA (S.D.

Fla. Oct. 30, 2013) (Doc. No. 318) (describing the disparity between the

co-defendant’s short sentence and Mr. McQueen’s guideline range as “hard

to accept”). The district court resentenced Mr. McQueen to time served,

and the government did not appeal again. In light of the unique situation

there, McQueen does not support the substantial downward variance for

Mr. Barnes or Mr. Brown.

     According to Mr. Barnes, the government failed to notify the district

court of a sufficient number of other sentences to show a disparity. But in

                                     11
district court, the government identified twelve other harsher sentences for

law-enforcement officers who had violated § 241 or § 242. The references

to twelve other sentences were enough to alert the district court to the

danger of unwarranted sentence disparities. 3

      Mr. Barnes also contends that the government failed to identify the

details of the other cases. But delving into the details does not help Mr.

Barnes or Mr. Brown. Their convictions involved a pattern of assaults on

multiple inmates. Of all the cases identified in the diagram, the shortest

sentence for a conviction involving multiple assaults was United States v.

Tines, No. CR 93-20117-MI (W.D. Tenn. June 30, 1994) (Doc. No. 4). Mr.

Tines was sentenced to 63 months’ imprisonment—more than double Mr.

Barnes’s sentence and more than five times Mr. Brown’s sentence. Id.

      The majority implies that our comparison to similarly situated

defendants is unnecessary, stating that the district court considered the

disparities. But if the district court had considered nationwide sentencing

disparities, this consideration would have related to procedural

reasonableness, not substantive reasonableness. See Gall v. United States,




3
      Mr. Barnes contends that we should decline to consider any case
examples newly presented on appeal. I disagree. The government presented
the issue to the district court, citing twelve case examples. The government
did not forfeit the issue by omitting additional case examples newly
presented on appeal.

                                     12
552 U.S. 38, 53–56 (2007) (stating that whether a district court considered

unwarranted disparities is an issue of procedural reasonableness).

      And in fact, the district court didn’t consider the far heavier

sentences imposed in other similar cases. The court instead explained that

it had “reviewed its prior sentences in deprivation of rights cases.”

Appellants’ App’x at 735 (Brown), 739 (Barnes) (emphasis added). In light

of this explanation, we have no reason to assume that the district court

considered the evidence that a one-year or two-year sentence would create

unwarranted sentence disparities. See United States v. Lente, 647 F.3d

1021, 1035 (10th Cir. 2011) (holding that even when the district court

stated that it had considered all of the statutory factors, we cannot presume

consideration of a party’s sentencing-disparity argument under 18 U.S.C.

§ 3553(a)(6)).

      The district court’s focus on its own prior sentences led the court

astray, and no one has cited a single sentence under 18 U.S.C. § 241 or

§ 242 that was as short as 24 months’ imprisonment. I have found only one

excessive-force case in which a sentence under § 241 or § 242 was as short

as the sentences given to Mr. Barnes or Mr. Brown. And in that case, the

circuit court of appeals had deemed the sentence substantively

unreasonable. United States v. McQueen (Alexander), 727 F.3d 1144, 1157

(11th Cir. 2013); see p. 11, above. Against the backdrop of this empirical

evidence, the district court’s consideration of its own prior sentences does

                                      13
not reasonably support the uniquely light sentences given to Mr. Barnes

and Mr. Brown.

                                    * * *

     The substantial downward variances for Mr. Barnes and Mr. Brown

created unwarranted disparities with the sentences for other offenders

convicted of similar crimes.

     D.    The Nature and Circumstances of the Offenses

     When determining the sentences, the district court pointed to the

“nature and circumstances” of the crimes, which is a pertinent factor. See

18 U.S.C. § 3553(a)(1). This factor could not reasonably support a

sentence as low as two years for Mr. Barnes or one year for Mr. Brown.

     For this factor, the district court observed that there was no

justification for what Mr. Barnes and Mr. Brown had done. But the court

downplayed the severity of the offenses on the ground that “a show of

strength and control may have served a purpose in the control of disorderly

inmates and the overall safety of the jail staff.” Appellants’ App’x at 609.

In downplaying the severity of the offenses, the court described the jail as

a place “where tensions were noted to run high and the need for control

was paramount.” Id. at 651. This description suggests that the district court

may have viewed the jail environment as a mitigating factor, but the

opposite is true because Mr. Barnes and Mr. Brown had abused their

powers in supervising the jail. See United States v. Wittig, 528 F.3d 1280,

                                     14
1289 (10th Cir. 2008) (Hartz, J., joined by entire panel) (stating that “a

sentence is substantively unreasonable if the only reason that the length is

outside the range of what judges ordinarily impose” for defendants with

similar records convicted of similar conduct “is that the sentencing judge

has an idiosyncratic view of the seriousness of the offense”).

      1.    Seriousness of the Crimes

      The sentence should ordinarily reflect the seriousness of the crime.

The legislative history of 18 U.S.C. § 3553 explains: “This purpose—

essentially the ‘just deserts’ concept—should be reflected clearly in all

sentences; it is another way of saying that the sentence should reflect the

gravity of the defendant’s conduct.” S. Rep. No. 98-225, at 75 (1983), as

reprinted in 1984 U.S.C.C.A.N. 3182, 3258.

      The crimes committed by Mr. Barnes and Mr. Brown were

“particularly serious.” United States v. McQueen (Alexander), 727 F.3d

1144, 1157 (11th Cir. 2013); see also Koon v. United States, 518 U.S. 81,

110 (1996) (“Public officials convicted of violating [18 U.S.C.] § 242 have

done more than engage in serious criminal conduct; they have done so

under color of the law they have sworn to uphold.”). Thus, the “nature and

circumstances” of the crimes did not support a downward variance.

      Indeed, the guideline ranges were stiffened because the offenses had

involved abuses committed under color of law against physically restrained

prisoners. For example, the sentencing guidelines contemplate a 6-level

                                      15
increase to the base-offense level for any offense committed under color of

law. See U.S. Sentencing Guidelines Manual § 2H1.1(b)(1)(B). Thus,

commission of “a crime while acting under color of law will result in a

higher sentence . . . rather than a lower sentence.” United States v.

LaVallee, 439 F.3d 670, 708 (10th Cir. 2006). And there is a 2-level

upward adjustment for a crime against a physically restrained victim. U.S.

Sentencing Guidelines Manual § 3A1.3.

      Mr. Barnes downplays the seriousness of unprovoked assaults on

helpless, handcuffed prisoners, insisting that they had been troublesome

before their transfer to the Muskogee County Jail. We rejected this view in

the prior appeal: “The only proffered justification for the force used

against these inmates was to discourage future repetition of their alleged

past bad behavior. Such punitive treatment does not serve a legitimate

penological purpose.” United States v. Brown, 654 F. App’x 896, 911 (10th

Cir.) (2016) (unpublished) (emphasis in original), cert. denied, 137 S. Ct.

237 (2016). Thus, we can infer “malicious, sadistic intent.” Id. (internal

quotations marks omitted).

      The district court recognized that the sentences needed to reflect the

seriousness of the offenses. See 18 U.S.C. § 3553(a)(2)(A). But the district

court reasoned that the sentences were sufficient in part because neither

Mr. Barnes nor Mr. Brown could ever work again in law enforcement. This



                                      16
reasoning failed to differentiate the circumstances between the two

defendants and others.

      The Supreme Court considered a similar issue in Koon v. United

States, 518 U.S. 81 (1996). There the Supreme Court held that a district

court had abused its discretion when considering the inability to work in

law enforcement because of a conviction under 18 U.S.C. § 242. Koon, 518

U.S. at 110. The Court reasoned not only that public employees are

regularly fired for committing crimes but also that violators of § 242 have

committed a crime “under color of the law they have sworn to uphold. It is

to be expected that a government official would be subject to . . . career-

related consequences . . . after violating § 242 . . . .” Id. at 110–11.

Because the Sentencing Commission considered career loss when adopting

the guideline range for violations of § 242, the Supreme Court held that the

district court had erred in considering the loss of a law-enforcement career.

Id. at 111.

      The majority suggests that Koon does not apply to variances

following United States v. Booker, 543 U.S. 220 (2005), which rendered

the guidelines advisory rather than mandatory. But even after Booker, we

have faulted district courts for “improperly relying on the collateral

consequences flowing from the prosecution and conviction.” United States

v. Morgan, 635 F. App’x 423, 450 (10th Cir. 2015) (unpublished); see also

United States v. Musgrave, 761 F.3d 602, 608–09 (6th Cir. 2014) (“[W]hen

                                       17
a district court varies downward on the basis of the collateral consequences

of the defendant’s prosecution and conviction, the defendant’s sentence

will not reflect the seriousness of the offense.”). Career loss is a collateral

consequence that does not differentiate Mr. Barnes or Mr. Brown from any

other offender convicted under § 241 or § 242.

      The defendants’ inability to return to law enforcement was vastly

outweighed by the seriousness of the crimes. The seriousness of the crimes

is reflected in the assaults themselves. But the crimes consist of more than

the sum of the assaults. The defendants cloaked these assaults in the power

of the state, abusing the rule of law that “they ha[d] sworn to uphold.”

Koon v. United States, 518 U.S. 81, 110 (1996).

      In this respect, the case resembles United States v. Morgan, where

we held that a probationary sentence for corruption was substantively

unreasonable. 635 F. App’x 423, 451–52 (10th Cir. 2015) (unpublished).

Here too we have a crime against the “public trust in the fairness and

integrity of government.” Id. at 447. Though Mr. Barnes and Mr. Brown

were not elected officials and did not engage in misconduct for personal

financial gain, their constitutional violations harmed the “reputation of

honest and stalwart public servants.” Id.

      Sentences for criminal violations of inmates’ civil rights must be

sufficiently serious to reflect the constitutional opprobrium cast on those

who sadistically inflict cruel, unprovoked assaults against inmates. The

                                      18
sentences of 24 and 12 months’ imprisonment do not reflect the seriousness

of the crimes. Id. at 448 (characterizing a sentence as substantively

unreasonable when the district court had “paid only lip service to the

seriousness of the offense and . . . harm to the reputation of honest public

servants”).

      2.      Doubts About the Verdict Against Mr. Brown

      Mr. Brown defends his twelve-month sentence in part based on his

lack of culpability. The district court reasoned that most witnesses had not

seen Mr. Brown participate in assaults or heard him direct other staff

members to assault prisoners. But the district court cannot base leniency

on skepticism about the verdict.

      Though some witnesses didn’t see Mr. Brown participate in an

assault, other witnesses did. For example, a jailer (Ms. Ashley Mullen)

testified that Mr. Brown had pulled a handcuffed inmate (Mr. Herbert

Potts) onto the concrete “pretty much face first.” United States v. Brown,

654 F. App’x 896, 901 (10th Cir. 2016) (unpublished), cert. denied, 137 S.

Ct. 237 (2016). 4 And others testified that they had seen Mr. Brown assault

Mr. Alton Murphy. Id. at 909. In the face of these accounts, the district

court could not reasonably lighten Mr. Brown’s sentence based on


4
      The district court instructed the jury to disregard the jailer’s
testimony about a separate incident, but not this one.


                                      19
disagreement with the verdict. See United States v. Slaton, 801 F.3d 1308,

1320 (11th Cir. 2015) (holding that the district court erred in basing the

sentence on a finding that conflicted with the verdict); United States v.

Bertling, 611 F.3d 477, 480–82 (8th Cir. 2010) (stating that district courts

should not “‘rely on a defendant’s innocence when the defendant has

already been found guilty beyond a reasonable doubt’” (quoting United

States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008))); United States v. Curry,

461 F.3d 452, 461 (4th Cir. 2006) (holding that the district court erred in

basing the sentence on a conclusion that conflicted with the verdict). 5

      Though the district court seemed to question whether Mr. Brown had

actually assaulted prisoners, the court acknowledged Mr. Brown’s role in

orchestrating the abuses. Mr. Brown was the jail’s second in command;

thus, the court applied an enhancement for a supervisory role, adding that

Mr. Brown had “helped organize the meet and greets.” Appellants’ App’x

at 221–22. This supervisory role could support a conviction under either

§ 241 or § 242 even if Mr. Brown had not personally participated in the

assaults. See United States v. Brown, 654 F. App’x 896, 908 (10th Cir.

2016) (unpublished) (“Physical assault is not a necessary element of either

5
      Mr. Brown previously appealed his conviction in part on the ground
that “no credible witness [had] testified that he physically assaulted an
inmate or instructed anyone else to do so.” United States v. Brown, 654 F.
App’x 896, 908 (10th Cir. 2016) (unpublished), cert. denied, 137 S. Ct.
237 (2016). We disagreed, noting that three witnesses had testified about
assaults committed by Mr. Brown. Id. at 908–09.

                                      20
[§ 241 or § 242].”), cert. denied, 137 S. Ct. 237 (2016). Consequently, the

district court could not reasonably justify the downward variances for Mr.

Brown based on skepticism about the verdict.

         3.     Pepper-Spray Incident

         The district court found that Mr. Brown’s culpability was diminished

    by the fact that he had been pepper sprayed. The court did not explain its

    logic, and the defendants do not defend it. Mr. Barnes jumped a helpless

    prisoner and pummeled him. Mr. Brown approached, seeing his boss (Mr.

    Barnes) committing an assault. Rather than try to stop Mr. Barnes, Mr.

    Brown burst into the fray to help his boss beat up a defenseless prisoner.

    Another guard joined in and pepper sprayed all three men. I fail to see

    how Mr. Brown’s exposure to pepper spray diminished the seriousness of

    his crimes. 6

         E.     The Defendants’ History and Characteristics

         The district court credited both defendants with characteristics

supporting leniency, such as the absence of a prior criminal record, the

presence of significant family responsibilities, and the existence of

significant medical problems for Mr. Barnes. These characteristics do not

support the substantial downward variances.


6
      The district court also commented on the fact that Mr. Barnes had
been pepper sprayed. But the court did not explain the relevance of this
fact during Mr. Barnes’s sentencing.

                                        21
     1.    Absence of a Prior Criminal Record

     The sentencing guidelines incorporate a defendant’s criminal history

in the assessment of an offense level. See United States v. Rose, 435 F.3d

735, 738 (7th Cir. 2006) (stating that the defendant’s “lack of a prior

criminal record was . . . accounted for in his Criminal History category”).

Mr. Barnes and Mr. Brown had a criminal-history category of I based on

their lack of prior criminal records. Though the criminal history is already

taken into account, the court can consider the absence of a prior criminal

record as a basis to vary downward. United States v. Huckins, 529 F.3d

1312, 1318 (10th Cir. 2008); see Majority Op. at 19. But here, the marginal

relevance of the defendants’ clean criminal records did not justify the

substantial downward variances.

     We addressed a similar issue in United States v. Hildreth, 485 F.3d

1120 (10th Cir. 2007). There the guideline range was 27–33 months’

imprisonment, and the district court varied downward to 3 years’

probation. Hildreth, 485 F.3d at 1123. The district court relied in part on

the low risk of public danger, pointing to the absence of past conduct that

might be considered aggressive, violent, or non-compliant. Id. at 1128. We

rejected this approach and regarded the sentence as unreasonably low. Id.

at 1129–30. We reasoned that the guidelines had already accounted for the

absence of an aggressive or violent history. Id. at 1129.



                                     22
      Under Hildreth, the defendants’ lack of a prior criminal record does

not support the substantial downward variances.

      2.    Family Responsibilities

      The district court relied heavily on the defendants’ family

responsibilities when deciding to vary downward. In pointing to these

responsibilities, the district court noted how many children each defendant

had. These family responsibilities might support some downward variance,

but not one as sizable as the variance given to Mr. Barnes or Mr. Brown.

      In calling for the creation of sentencing guidelines, Congress

observed that it is generally inappropriate to consider the defendant’s

family responsibilities. 28 U.S.C. § 994(e). Based on this observation,

“[t]he Sentencing Guidelines state that a defendant’s ‘[f]amily ties and

responsibilities . . . are not ordinarily relevant in determining whether a

sentence should be outside the applicable guideline range.’” United States

v. McClatchey, 316 F.3d 1122, 1130 (10th Cir. 2003) (second alteration

and omission in original) (quoting U.S. Sentencing Guidelines Manual

§ 5H1.6).

      In some circumstances, a defendant’s family responsibilities may

bear on the sentencing decision. See United States v. Jarvi, 537 F.3d 1256,

1263 (10th Cir. 2008) (stating that district courts can consider individual

characteristics even when disfavored under the guidelines). An example

took place in United States v. Muñoz-Nava, 524 F.3d 1137 (10th Cir.

                                      23
2008). Muñoz-Nava involved a downward variance from a 46–57-month

guideline range to 12 months in prison and 12 months in home

confinement. 524 F.3d at 1142. In varying downward, the district court

relied in part on the defendant’s role as the “primary caretaker and sole

supporter of his eight-year-old son” and as the “sole supporter of . . .

ailing and elderly parents.” Id. at 1142–43. In addition, the district court

ordered 12 months of home confinement to allow the defendant to care for

his family during the course of his punishment. Id. Two facts distinguish

this case from Muñoz-Nava.

      First, the disparity between the sentences and the guideline ranges is

greater here than it was in Muñoz-Nava. Compare Muñoz-Nava, 524 F.3d at

1142 (stating that the guideline range was 46–57 months’ imprisonment

and that the sentence was 12 months’ imprisonment and 12 months’ home

confinement), with Appellants’ App’x at 683, 717 (stating that the

guideline range was 70–87 months for Mr. Barnes and Mr. Brown).

      Second, the defendant in Muñoz-Nava was the primary caretaker for

his child and the only person capable of supporting his son and elderly

parents. In our case, however, the district court did not regard either Mr.

Barnes or Mr. Brown as the only parent able to care for the children.

Indeed, Mr. Barnes’s wife provided most of the financial support for the

family even though she suffered from fibromyalgia. Similarly, Mr. Brown’s

wife worked two jobs, providing financial support for the family.

                                      24
      Muñoz-Nava does not support the substantial downward variances

granted to Mr. Barnes and Mr. Brown. Their incarcerations will

undoubtedly burden their respective families, but these burdens are “‘to be

expected when a family member engages in criminal activity that results in

a period of incarceration.’” United States v. Rodriguez-Velarde, 127 F.3d

966, 968 (10th Cir. 1997) (quoting United States v. Canoy, 38 F.3d 893,

907 (7th Cir. 1994)). In my view, the defendants’ family circumstances are

not so extraordinary that they could reasonably justify a 12-month or 24-

month sentence in light of the seriousness of the crimes and the need to

avoid unwarranted sentencing disparities. See United States v. Dautovic,

763 F.3d 927, 935 (8th Cir. 2014) (holding that a 20-month sentence under

§ 242 was unreasonably light though the defendant “was a first time

offender who had done good things for his community and family”).

      3.    Mr. Barnes’s Health

      The district court also acknowledged Mr. Barnes’s health problems.

But these problems do not reasonably support the substantial downward

variance for Mr. Barnes.

      A defendant’s physical condition can be considered at sentencing.

United States v. White, 506 F.3d 635, 644 (8th Cir. 2007). But

consideration of a defendant’s physical condition is discouraged unless it

is extraordinary. United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir.

2010). “Discouraged factors . . . are those ‘not ordinarily relevant to the

                                      25
determination of whether a sentence should be outside the applicable

guideline range.’” Koon v. United States, 518 U.S. 81, 95 (1996) (quoting

U.S. Sentencing Guidelines Manual § 5H intro. cmt.).

     The district court mentioned Mr. Barnes’s physical condition: “He

suffers from significant health problems and receives ongoing treatment

for several different ailments, including most recently tongue cancer and

he takes up to 14 medications daily.” Appellants’ App’x at 610–11. But the

court did not characterize Mr. Barnes’s medical problems as extraordinary

or suggest that they would justify the substantial downward variance.

     These medical problems, coupled with Mr. Barnes’s family

responsibilities and lack of criminal history, do not justify the downward

variance from 70 to 24 months. See United States v. Borho, 485 F.3d 904,

907, 913 (6th Cir. 2007) (holding that a downward variance from 210

months to 72 months was substantively unreasonable notwithstanding the

defendant’s back injury and diabetes).

     4.    Conduct While on Release

     The district court commented that Mr. Barnes and Mr. Brown had

conducted themselves in a “positive” way while on release. Appellants’

App’x at 611, 652. Notwithstanding these comments, the court did not

appear to rely on the defendants’ positive conduct while on release.

     Ordinarily, a defendant’s lawful conduct while on release can bear on

the appropriate sentence. See Pepper v. United States, 562 U.S. 476, 490–

                                     26
93 (2011) (holding that evidence of rehabilitation may be considered after

the initial sentence has been set aside on appeal). But here the defendants’

conduct while on release proved little. Their crimes took place only in

their capacities as superintendents for a county jail, and the two men had

lost their jobs before the charges were brought. As a result, the defendants’

laudable conduct on release sheds little light on the appropriate sentences.

See United States v. Smith, 860 F.3d 508, 519 (7th Cir. 2017) (noting that

progress while on release after conviction under § 242 was laudable, but

“[t]his relatively minor evidence of rehabilitation must be assessed in light

of . . . [an] appalling history” of beatings and “other abuses of power over

inmates”); see also United States v. Walker, 844 F.3d 1253, 1256–57 (10th

Cir. 2017) (concluding that a sentence was unreasonably short

notwithstanding the defendant’s positive conduct while on release prior to

the sentencing).

     F.    The Risk of Recidivism and Need for Deterrence

     In deciding on the sentence, the district court must consider the risk

of recidivism and the need to deter the defendants and others. See United

States v. Steele, 603 F.3d 803, 809 n.5 (10th Cir. 2010) (recidivism);

United States v. Walker, 844 F.3d 1253, 1257 (10th Cir. 2017)

(deterrence). The district court reasonably concluded that lengthy

sentences were unnecessary to deter Mr. Barnes and Mr. Brown and that



                                     27
they were unlikely to recidivate. But the court failed to adequately

consider the need to deter others. 7

      The need to deter crimes by other individuals, known as general

deterrence, “‘is one of the key purposes of sentencing.’” Walker, 844 F.3d

at 1257 (quoting United States v. Medearis, 451 F.3d 918, 920 (8th Cir.

2006)). General deterrence is a particularly important factor when

assessing sentences varying below the guideline ranges. See id. at 1258.

      General deterrence is also particularly important when we consider

crimes committed by prison officials under color of law. “Prison inmates

serve their sentences under the pervasive control of the corrections staff”

and, as a result, are “‘uniquely vulnerable’” to assaults from corrections

officers. United States v. McQueen (Alexander), 727 F.3d 1144, 1158 (11th

Cir. 2013) (quoting Maryland v. Shatzer, 559 U.S. 98, 127 (2010) (Stevens,

J., concurring)). These assaults often “go undetected and unpunished.” Id.

The difficulty of detection undermines general deterrence, which “comes

from a probability of conviction and significant consequences.” United

States v. Morgan, 635 F. App’x 423, 450 (10th Cir. 2015) (unpublished).

Thus, the district court’s softening of the “consequences” for Mr. Barnes


7
      The sentence should also reflect other sentencing objectives, such as
rehabilitation and incapacitation. United States v. Walker, 844 F.3d 1253,
1256 (10th Cir. 2017). But the district court did not suggest that the
downward variances would promote rehabilitation or incapacitation. Nor
do the parties discuss these objectives.

                                       28
and Mr. Brown served to further diminish the deterrent value of the

sentences. See United States v. Jordan, 678 F. App’x 759, 771 (10th Cir.

2017) (unpublished).

     The sentences here minimized the significant consequences

contemplated by the guidelines for serious crimes. And these crimes carry

a relatively low probability of detection and conviction, crystallizing the

importance of significant consequences to deter violations of § 241 or

§ 242. Against this backdrop, the light sentences for Mr. Barnes and Mr.

Brown did little to promote general deterrence. 8

V.   Totality of the Sentencing Factors

     Based on the totality of sentencing factors, I conclude that Mr.

Barnes’s 24-month sentence and Mr. Brown’s 12-month sentence were

unreasonably short. A jury found that both men had (1) conspired to

physically abuse inmates and (2) committed some of the abuses

themselves. Mr. Barnes and Mr. Brown concealed the abuses and coerced



8
      The district court noted that the prison terms would be followed by
supervised release for three years. Mr. Barnes argues that the supervised-
release conditions would promote general deterrence for would-be
offenders valuing their privacy. In my view, the deterrent value of the
supervised-release terms would be marginal. “While it is true that someone
on supervised release is not entirely free, it is equally true that he is not
confined in a prison either.” United States v. Irey, 612 F.3d 1160, 1210
(11th Cir. 2010); see also United States v. Bistline, 665 F.3d 758, 766 (6th
Cir. 2012) (“[A] term of supervised release is simply not enough to reflect
the seriousness of the offense here.”).

                                     29
subordinates to fabricate reports. The district court’s downward variances

of roughly 66% and 83% were unwarranted.

      The majority reasons that the district court adequately analyzed the

statutory factors. But this analysis would not render the sentences

substantively reasonable. Indeed, the district court’s explanation does little

to justify the substantial variances. For example, the sentences were not

justified by the fact that the crimes had been committed against inmates.

Nor were the sentences justified by the defendants’ lack of a prior criminal

record, their lawful conduct while on release, their low risk of recidivism,

their family circumstances, or Mr. Barnes’s medical problems. Many of

these factors are discouraged as grounds for variances, and none of these

factors distinguish Mr. Barnes or Mr. Brown from other offenders

convicted under § 241 or § 242.

      Nonetheless, the district court imposed sentences far below other

similarly situated offenders, creating unwarranted sentencing disparities,

doing little to deter future violations of inmates’ civil rights, and failing to

reflect the seriousness of the crimes. Thus, I regard the sentences as

substantively unreasonable and respectfully dissent.




                                       30
                                Appendix

1.   United States v. Wilson, No. 10CR390-AGF (E.D. Mo. Oct. 7, 2011)
     (Doc. No. 120), aff’d, 686 F.3d 868 (8th Cir. 2012). The defendant
     was a law-enforcement official with supervisory authority at a jail.
     Sent. Tr. at 14, id. (Doc. No. 109). The conviction arose out of the
     defendant’s role in assaulting four inmates. Id. at 19–20. The
     guideline range was 97–121 months. Id. at 35.

2.   United States v. McCoy, No. 08-CR-135-KKC-2 (E.D. Ky. Sept. 1,
     2010) (Doc. No. 173), aff’d, 480 F. App’x 366 (6th Cir. 2012). The
     defendant was a correctional officer who assaulted five inmates and
     falsified reports to conceal the assaults. McCoy, 480 F. App’x at
     367–68. The guidelines called for a prison sentence of 120 months,
     the statutory maximum. Sent. Tr. at 29, United States v. McCoy, No.
     08-CR-135-KKC-2 (E.D. Ky. Sept. 1, 2010) (Doc. No. 190).

3.   United States v. McQueen (John), No. 08-CR-135-KKC-1 (E.D. Ky.
     Sept. 1, 2010) (Doc. No. 172), aff’d sub nom. United States v.
     McCoy, 480 F. App’x 366 (6th Cir. 2012). The defendant was a jail
     officer who assaulted four detainees and falsified reports to conceal
     the assaults. McCoy, 480 F. App’x at 367–68. The guidelines called
     for a prison term of 120 months, the statutory maximum. Sent. Tr. at
     13, United States v. McQueen (John), No. 08-CR-135-KKC-1 (E.D.
     Ky. Sept. 1, 2010) (Doc. No. 172), aff’d sub nom. United States v.
     McCoy, 480 F. App’x 366 (6th Cir. 2012).

4.   United States v. McQueen (Alexander), No. 11-CR-20393-CMA (S.D.
     Fla. Nov. 22, 2013) (Doc. No. 322), remanded from 727 F.3d 1144
     (11th Cir. 2013). The defendant was a correctional officer who
     sanctioned and participated in assaults on prisoners and filed a false
     report to conceal the assaults. McQueen (Alexander), 727 F.3d at
     1147–49. The guidelines called for a prison term of 151–188 months.
     Id. at 1150. The district court sentenced the defendant to 12 months,
     the circuit court of appeals vacated and remanded for resentencing,
     and the district court resentenced the defendant to time served.
     United States v. McQueen (Alexander), No. 11-CR-20393-CMA (S.D.
     Fla. Nov. 22, 2013) (Doc. No. 322). The government did not appeal
     the sentence a second time.

5.   United States v. Gould, No. 03-CR-02274-JB (D.N.M. May 6, 2009)
     (Doc. No. 440), aff’d, 672 F.3d 930 (10th Cir. 2012). The defendant
     was a jail supervisor who assaulted two detainees and filed a false
      incident report. Sent. Tr. at 12, 19, 93, id. (Doc. No. 463). The
      guideline range was 120 months, the statutory maximum. Id. at 93.

6.    United States v. Tines, No. CR-93-20117-MI (W.D. Tenn. June 30,
      1994) (Doc. No. 4), aff’d, 70 F.3d 891 (6th Cir. 1995). The
      conviction stemmed from a deputy sheriff’s role in assaulting six
      juvenile detainees. Tines, 70 F.3d at 893–95. The existing public
      record does not reflect the applicable guideline range.

7.    United States v. Bunke, No. 08CR65 (N.D. Ohio Mar. 11, 2009) (Doc.
      No. 148), aff’d, 412 F. App’x 760 (6th Cir. 2011). The conviction
      under § 242 was based on a prison guard’s use of excessive force
      against a prisoner. Gov’t’s Sent. Br. at 1, 3–7, id. (Doc. No. 136).
      The district court noted that the defendant had not initiated the
      confrontation. Sent. Tr. at 48, id. (Doc. No. 154). The guideline
      range was 57–71 months. Id. at 32.

8.    United States v. Bailey, No. 00-CR-10431 (D. Mass. Nov. 17, 2003)
      (Doc. No. 421), aff’d 405 F.3d 102 (1st Cir. 2005). The conviction
      stemmed from a prison guard’s role in using excessive force against
      an inmate and submitting a false report afterward. Bailey, 405 F.3d at
      106–07. The guideline range was 41–51 months. Id. at 112.

9.    United States v. Verbickas, No. 00-CR-00481-WYD-5 (D. Colo. Nov.
      21, 2003) (Doc. No. 1479), aff’d sub nom. United States v. LaVallee,
      439 F.3d 670 (10th Cir. 2006). The defendant was a correctional
      officer who assaulted an inmate at the captain’s direction and
      falsified information about the incident. LaVallee, 439 F.3d. at 678–
      79. The guideline range was 27–33 months. Id. at 702.

10.   United States v. LaVallee, No. 00-CR-00481-WYD-1 (D. Colo. Nov.
      21, 203) (Doc. No. 1479), aff’d 439 F.3d 670 (10th Cir. 2006). The
      defendant was a correctional officer who assaulted an inmate and
      fabricated a report about the incident. LaVallee, 439 F.3d at 679. The
      guideline range was 41–51 months. Id. at 703.

11.   United States v. Schultz, No. 00-CR-00481-WYD-2 (D. Colo. Nov.
      21, 2003) (Doc. No. 1479), aff’d sub nom. United States v. LaVallee,
      439 F.3d 670 (10th Cir. 2006). The defendant was a correctional
      officer who assaulted an inmate and fabricated a report about the
      incident. LaVallee, 439 F.3d at 679. The guideline range was 41–51
      months. Id. at 703.


                                        2
12.   United States v. Gonzales, No. 02-CR-00609-2 (S.D. Tex. Feb. 2,
      2004) (Doc. No. 247), aff’d, 436 F.3d 560 (5th Cir. 2006). The
      defendant was a federal deportation officer who was convicted of
      (1) using unreasonable force against someone in his custody and
      (2) acting with deliberate indifference to the individual’s medical
      needs. Gonzales, 436 F.3d at 566. The guideline range was 63–78
      months. Br. of Appellant at 51, Gonzales, 436 F.3d 560 (No. 04-
      20131), 2004 WL 5489398.

13.   United States v. Gomez, No. 02-CR-00609-3 (S.D. Tex. Feb. 2, 2004)
      (Doc. No. 248), aff’d sub nom. United States v. Gonzales, 436 F.3d
      560 (5th Cir. 2006). The defendant was a federal deportation officer
      who was convicted of acting with deliberate indifference to a
      detainee’s medical needs. Gonzales, 436 F.3d at 566. The existing
      public record does not reflect the applicable guideline range.

14.   United States v. Reyna, No. 02-CR-00609-1 (S.D. Tex. Feb. 2, 2004)
      (Doc. No. 246), aff’d sub nom. United States v. Gonzales, 436 F.3d
      560 (5th Cir. 2006). The defendant was a federal deportation officer
      who was convicted of acting with deliberate indifference to a
      detainee’s medical needs. Gonzales, 436 F.3d at 566. The sentence
      was at the bottom of the guideline range, which is not specified in
      the public record. Id. at 583.

15.   United States v. Gilpatrick, No. 05-CR-00009 (M.D. Tenn. May 22,
      2007) (Doc No. 211), aff’d, 548 F.3d 479 (6th Cir. 2008). The
      defendant was a deputy sheriff who orchestrated the assault of a
      detainee. Gilpatrick, 548 F.3d at 480–81. In addition to the 84-month
      prison term, the sentence included 24 months in a “community
      corrections facility.” Id. The guideline range was 108–135 months.
      Id. at 482.

16.   United States v. Miller, No. 04-CR-183-JMM (E.D. Ark. Feb. 27,
      2006) (Doc. No. 82), aff’d, 477 F.3d 644 (8th Cir. 2007). The
      defendant was a jail supervisor convicted under § 242 for assaulting
      two inmates. Miller, 477 F.3d at 646–47. The existing public record
      does not reflect the applicable guideline range.

17.   United States v. Lopresti, No. 07-CR-00273-CBA (E.D.N.Y. June 26,
      2008) (Doc. No. 427), aff’d, 340 F. App’x 30 (2d Cir. 2009). The
      conviction under § 241 stemmed from a prison guard’s role in
      beating a prisoner and orchestrating a cover-up. See Lopresti, 340 F.
      App’x at 31–32. The guideline range was 51–63 months. Gov’t’s

                                         3
      Sent. Mem. at 10, No. 07-CR-00273-CBA (E.D.N.Y. June 26, 2008)
      (Doc. No. 427), aff’d, 340 F. App’x 30 (2d Cir. 2009).

18.   United States v. Fuller, No. 01-CR-00593-WJ-1 (D. N.M. Mar. 27,
      2006) (Doc. No. 280), remanded from sub nom. United States v.
      Serrata, 425 F.3d 886 (10th Cir. 2005). The defendant was convicted
      of coordinating and participating in the assault of an inmate and
      subsequent efforts to cover up the assault. Serrata, 425 F.3d at 889–
      91. The guideline range was 78–97 months. Id. at 893.

19.   United States v. Serrata, No. 01-CR-00593-WJ-4 (D. N.M. Mar. 27,
      2006) (Doc. No. 281), remanded from 425 F.3d 886 (10th Cir. 2005).
      The defendant was convicted of (1) failing to intervene to stop an
      assault on an inmate and (2) participating in a subsequent cover up.
      Serrata, 425 F.3d at 890–91. The guideline range was 51–63 months.
      Id. at 892.

20.   United States v. Broussard, No. CR-00036-1 (W.D. La. April 6,
      2017) (Doc. No. 29), aff’d, 882 F.3d 104 (5th Cir. 2018). The
      conviction under § 242 was based on the lieutenant’s failure to
      intervene when a prisoner was beaten by officers. Broussard, 882
      F.3d at 107. The guideline range was 63–78 months. Id. at 108.




                                        4
