                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS April 15, 2020
                                                                Christopher M. Wolpert
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 19-2168
                                               (D.C. No. 5:18-CV-00537-RB-1)
 JEFFREY BLAKE VANOVER, also                              (D.N.M.)
 known as Jeffery Blake Vanover,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we

grant the parties’ requests and order the case submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Jeffrey Vanover pleaded guilty to a single count of being a prohibited

person in possession of an explosive, in violation of 18 U.S.C. § 842(i). The

district court sentenced Vanover to an eighteen-month term of imprisonment, a

term well below the bottom of the advisory Sentencing Guidelines range of thirty

to thirty-seven months’ imprisonment. Vanover appeals, asserting his sentence is

both procedurally and substantively unreasonable. This court exercises

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirms

the sentence imposed by the district court.

      Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) agents

received information Vanover was storing numerous explosive devices, possibly

pipe bombs, at a residence. The source indicated Vanover previously attempted

to sell the devices. Vanover displayed one of the devices while he was carrying it

on his person and the source observed a box containing multiple explosives at

Vanover’s residence. Based on this information, agents conducted a warrant-

based search of Vanover’s residence and found twenty-nine Gearhart-Owens

(“GOEX”) three-and-one-half-inch explosive oil well perforators/chargers. Each

device contained twenty-three grams of explosives. Vanover agreed to speak with

investigators; he explained he found the devices approximately six months earlier

while cleaning out the residence of a friend after his death. The friend worked in

the oil fields as a driller. Vanover took the explosive devices and attempted to


                                        -2-
sell them. He denied actually selling any of the devices and indicated he had the

devices in his possession for several months.

      A records check revealed Vanover had several prior convictions, including

two sets of felony convictions for distributing methamphetamine and a felony

conviction for commercial burglary. In addition, Vanover, a man in his fifties, is

a long-time drug abuser. He began using methamphetamine at age twenty-two

and consumed it daily until his arrest. In February 2018, a grand jury indicted

Vanover for being a prohibited person in possession of explosives, in violation of

§ 842(i), because he was both an unlawful user of a controlled substance and a

convicted felon.

      In April 2018, Vanover was arrested and placed in federal custody. Shortly

thereafter, he was released on bond. Vanover received substance abuse treatment,

but experienced several relapses. On September 12, 2018, he admitted consuming

methamphetamine. The district court was notified, but took no action so Vanover

could continue ongoing substance abuse treatment. On September 26, Vanover’s

urine sample tested positive for methamphetamine; on October 6, Vanover failed

to appear for a random drug test. In response, the district court ordered Vanover

to attend a thirty-day inpatient drug treatment and counseling program. Vanover

pleaded guilty to the § 842(i) charge on October 10. Vanover successfully

completed the inpatient program on November 9 and was released.


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      After entry of his guilty plea but before his sentencing, Vanover continued

attending substance abuse treatment as a condition of his release. Nevertheless,

he again admitted he consumed methamphetamine on March 30, 2019. All

subsequent drug tests, however, were negative. Pretrial services indicated, just

prior to the sentencing hearing, that Vanover had “done well overall on bond

conditions.” In addition to completing inpatient treatment, Vanover completed

group counseling and continued to participate in “co-occurring individual

counseling.” He also participated in weekly Alcoholics Anonymous and

Narcotics Anonymous meetings and maintained employment.

      Vanover underwent both physical and mental health assessments. As

relevant to this appeal Vanover was diagnosed with severe stimulant use disorder

(methamphetamine). Vanover also reported he is borderline diabetic and suffers

from migraines, but does not take medication for either problem. As a teenager,

Vanover was in a dirt bike accident that required surgery and the insertion of

several pins in his ankle. Vanover’s mother verified he suffers from migraines

and further indicated he has hypokalemia (low potassium).

      The United States Probation Office prepared a presentence investigation

report (“PSR”). The PSR determined that Vanover had a total offense level of

seventeen, U.S.S.G. § 2K1.3, and a criminal history category of III. This yielded

an advisory guideline range of thirty to thirty-seven months’ imprisonment.


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Detailed in the PSR was a criminal history spanning thirty years. In 1991, he was

convicted of commercial burglary and criminal damage to property. While his

sentence was initially deferred and he was placed on probation, his probation was

revoked. He was ultimately sentenced to a total of twenty-four months in

custody. Vanover was convicted of two counts of distribution of

methamphetamine in 1995. He was sentenced to four years in custody, all of

which was suspended in favor of a four-year term of probation. Vanover’s

probation was, however, revoked after he was found to have illegally used

marijuana and consumed alcohol. Vanover was then ordered to serve his original

four-year sentence, enhanced by one year, for a total term of five years in custody.

In 2004, Vanover was likewise convicted of two counts of distribution of

methamphetamine; he was sentenced to four years in custody, all of which was

suspended except for one year and ninety days. Vanover completed the balance

of the sentence on supervised probation, which he completed in an

“unsatisfactory” fashion. In addition to these felony convictions, Vanover has a

1984 conviction for driving while intoxicated and a 2014 conviction for driving

while under the influence of drugs and doing so without a driver’s license. As

was true of the other probationary sentence discussed above, Vanover was unable

to successfully complete the term of probation imposed following his 2014

conviction. Instead, his probation was revoked in December 2017, and he was


                                         -5-
sentenced to thirty-nine days in custody and placed back on supervised probation

for two years.

      Prior to sentencing, Vanover submitted a sentencing memorandum. As

relevant to the issues on appeal, Vanover asked the district court to vary

downward dramatically from the bottom of the advisory guidelines range to a

sentence of twelve months probation. In support of this request, Vanover argued

as follows: (1) he was less likely to recidivate because of his advanced age (fifty-

four years at the time of sentencing); (2) his poor health (borderline diabetes,

hypokalemia, migraine headaches, and residual effects of a severe ankle injury)

would make him a costly burden to the Bureau of Prisons and render him

vulnerable to abuse in the general prison population; and (3) his successful

ongoing efforts to overcome his addiction minimized the need to protect the

public from his future criminal acts. In its response to Vanover’s sentencing

memorandum, the United States opposed Vanover’s request for a downward

variance. The United States argued as follows: (1) Vanover’s assertion his age

made it less likely he would recidivate was unconvincing given his lengthy

criminal history and his commission of the instant offense within the prior two

years; (2) Vanover failed to demonstrate he could not be adequately cared for in a

federal medical center run by the Bureau of Prisons and his assertion his physical

condition would render him vulnerable in the general population was speculative;


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and (3) Vanover’s history of persistently returning to drug use while on probation,

especially when coupled with his drug use while on pre-trial supervision, made

him an especially poor candidate for a probationary sentence.

      Vanover appeared for sentencing on October 1, 2019. The district court

began the hearing by specifically noting it had read Vanover’s sentencing

memorandum and the government’s response thereto. Vanover’s counsel then

argued at length in support of “a big variance” that would result in “an alternative

to incarceration.” Counsel argued Vanover’s criminal history flowed from his

long-standing drug addiction and that, while on pre-trial supervision, Vanover had

excelled at addiction recovery. Counsel further noted Vanover had maintained

gainful employment; remains close to, and helps, his family; and attends church

regularly. The government responded by noting the dangerous nature of the crime

of conviction and reiterated the views set out in its response to Vanover’s

sentencing memorandum.

      After Vanover spoke on his behalf, the district court pronounced sentence.

The district court began by praising at length Vanover’s efforts to overcome his

addiction. In so doing, the district court acknowledged Vanover was fifty-four

years old and had been using methamphetamine for approximately thirty years.

The district court further acknowledged Vanover had some health issues, but




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found it “something of a miracle” his health was as good as it was after thirty

years of using methamphetamine. The district court then concluded as follows:

             So . . . [defense counsel] has presented a thoughtful sentencing
      memo and he’s made a presentation this morning that’s consistent
      with that. And just to be finally getting to the point, you, not in any
      sense that I typically consider, are a candidate for probation. You
      aren’t. You’ve got lots of history. If you—given the history, if you
      had been released and clean the entire time . . . , that’s one
      presentation. But that isn’t this one. This is you got a [pre-trial]
      release that I wouldn’t have thought you deserved and, in the
      meantime, there have been additional problems. And I’m not
      condemning you for that. A habit—you don’t just walk away from
      meth. I understand that. And I’m proud of what you’ve done in the
      meantime. And I’m sorry for the occasional relapse. But if I were to
      grant probation, we all have to deal with the reality. We all have to
      accept the reality that, given your history and your most recent
      experience, you’d be back in front of me at some point soon on a
      violation. And I don’t want that for you.

             So I am going to—I’m not going to be able to grant probation,
      as [defense counsel] has asked, but given—on paper, as I said as we
      began this morning, this case looks extraordinarily dangerous. I
      mean, I wouldn’t have been surprised if Mr. Vanover had been a
      terrorist. I mean, he’s got explosive devices, a lot of them, and he’s
      trying to sell them. And Mr. Vanover is not a terrorist. He just
      stumbled on something that happened to have been dangerous and
      was a drug addict and tried to sell it. As I think [the prosecutor]
      said, I don’t think there's any maliciousness here, I don’t think he
      intended harm, but the fact remains he’s a felon in the possession of
      something that was dangerous. And that, coupled with the fact of the
      addiction, that’s just a toxic recipe. It could certainly have ended
      differently than it did. And I’m glad that they were discovered and
      taken out of circulation and handled responsibly.

            So I’m going to impose sentence. I don’t think 30 months is
      necessary. And we all know that’s my job at this point, to impose a
      sentence that's sufficient, but not greater than necessary to achieve
      the goals of sentencing. . . . And so I am going to vary and—but

                                         -8-
      we’ll begin with the Offense Level at 17, Criminal History Category
      III; the range is 30 to 37 months.

            Mr. Vanover, a convicted felon with at least one prior
      controlled substance conviction, possessed explosives.

             As to the Indictment, the defendant, Jeffrey Blake Vanover, is
      committed to the custody of the Bureau of Prisons for a term of 18
      months. I’m going to place him on supervised release for a term of
      three years. . . .

After the district court announced its sentence, defense counsel objected that

because Vanover was now clean and sober, it was not clear what a prison term

would accomplish. The district court responded as follows:

      There are a lot of different sentencing factors, a lot of different
      sentencing goals, and not all of them relate to the well-being of the
      defendant. You know that and so do I. I’ve been doing this a long
      time, too. And probation is an extraordinary remedy in this system.
      It’s given about three percent of the time. And when it’s given, it’s
      to people that don’t have histories and don’t have other markers
      against them.

            There’s also the concern about the dangerousness to the public,
      but more than that, in this instance, the punishment has to fit the
      crime. And I struggle with every one of these . . . .

      Vanover appeals, asserting the sentence imposed by the district court is

unreasonable. “After the Supreme Court’s decision in United States v. Booker,

543 U.S. 220 (2005), this court reviews sentences for reasonableness.” United

States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). “Reasonableness

review is a two-step process comprising a procedural and a substantive

component.” Id. (quotation omitted).

                                        -9-
      Review of procedural reasonableness “asks whether the sentencing court

committed any error in calculating or explaining the sentence.” United States v.

Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). Procedural errors

include “failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).

Importantly, when the district court imposes a sentence within the guideline

range, it need not specifically address and reject each one of a defendant’s

arguments for leniency as long as it “somehow indicate[s] that [it] did not rest on

the guidelines alone, but considered whether the guideline sentence actually

conforms, in the circumstances, to the [18 U.S.C. § 3553(a)] statutory factors.”

United States v. Wireman, 849 F.3d 956, 963 (10th Cir. 2017) (quotation omitted).

      “Review for substantive reasonableness focuses on whether the length of

the sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” Friedman, 554 F.3d at 1307 (quotation

omitted). This court reviews the substantive reasonableness of a sentence under

an abuse-of-discretion standard. United States v. Sells, 541 F.3d 1227, 1237 (10th

Cir. 2008). A sentence is substantively unreasonable only if the district court

“exceeded the bounds of permissible choice, given the facts and the applicable


                                         -10-
law in the case at hand.” United States v. McComb, 519 F.3d 1049, 1053 (10th

Cir. 2007) (quotation omitted). That is, “[a] district court abuses [its] discretion

when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008)

(quotation omitted).

      [G]iven the district court’s institutional advantage over [this court’s]
      ability to determine whether the facts of an individual case justify a
      variance pursuant to § 3553(a) (given that the sentencing judge, for
      example, sees and hears the evidence, makes credibility
      determinations, and actually crafts Guidelines sentences day after
      day), we generally defer to its decision to grant, or not grant, a
      variance based upon its balancing of the § 3553(a) factors.

Id. Where, as here, the district court’s sentence is below the bottom of the

properly calculated guideline range, there is a presumption of reasonableness.

United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011). This

presumption can be rebutted if the defendant shows the sentence imposed is

unreasonable in light of the factors set forth at 18 U.S.C. § 3553(a). Id.

      Vanover contends the district court erred by not considering his age and

physical condition and by placing too much emphasis on his relapses during his

substance abuse recovery process. Vanover does not identify whether these

arguments are procedural or substantive. This court has recognized, however,

that such arguments “blur the line” between “the procedural error of failing

actually to consider all the relevant factors, and the substantive error of imposing


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a sentence that does not fairly reflect those factors.” United States v.

Lopez-Macias, 661 F.3d 485, 489 n.3 (10th Cir. 2011) (quotation omitted). Given

that Vanover makes a specific challenge to the substantive reasonableness of his

sentence, this court will treat these arguments as procedural in nature.

      The suggestion the district court disregarded Vanover’s age, health, and

efforts to overcome drug addiction is meritless. The district court specifically

stated at the beginning of the sentencing hearing that it had considered the

parties’ submissions as to sentencing. As noted above, Vanover’s sentencing

memorandum was focused exclusively on his age, health, and efforts to overcome

methamphetamine addiction. After hearing from the parties, including Vanover

himself, at the sentencing hearing as to these very issues, the district court began

its imposition of sentence by expressly recognizing Vanover’s age and physical

condition. R. Vol. 3 at 22 (“You’re 54 years old.”); id. at 23 (“[T]he fact that

you’re standing there today as healthy as you are, I know there are some health

issues, but as healthy as you are, is something of a miracle.”). The district court

then discussed at length, in often laudatory terms, Vanover’s efforts to overcome

methamphetamine addiction. Then, given all this, the district court varied

downward forty percent from the bottom of the advisory guidelines range of thirty

months and imposed an eighteen-month term of imprisonment. In light of the




                                         -12-
record, the notion the district court did not consider these issues is not remotely

credible.

      Vanover’s challenge to the substantive reasonableness of his downward-

variant sentence is similarly unpersuasive. The district court’s refusal to vary

even further downward to a sentence of probation is not remotely unreasonable.

As noted by the district court, Vanover has an established history of failing

probation because of his drug addiction. Furthermore, during his pre-trial

supervision, even while undergoing treatment, he abused methamphetamine on

several occasions. Thus, it was reasonable for the district court to conclude that

an immediate probationary sentence would most likely result in failure.

Furthermore, although Vanover did ultimately complete drug rehabilitation, it was

not clear error for the district court to conclude Vanover was likely to reoffend if

placed on probation without an intermediate term of incarceration. The district

court’s determination that this likelihood, especially when coupled with the

extreme dangerousness of Vanover’s possession of a large number of explosive

devices he attempted to sell, mandated a term of incarceration. Although Vanover

does not like the balance of the § 3553(a) factors struck by the district court, he

has not come close to carrying his burden of rebutting the presumption of

reasonableness that attaches to the district court’s below-guidelines sentence.




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     For those reasons set out above, the sentence imposed by the United States

District Court for the District of New Mexico is hereby AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Michael R. Murphy
                                        Circuit Judge




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