                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  February 5, 2009
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-3223
 v.                                                       (D. Kansas)
 ANTHONY EUGENE CLARK,                         (D.C. No. 06-CR-40140-1-RDR)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Anthony Eugene Clark pled guilty to one count of

possession of a firearm after being convicted of a felony, in violation of 18




      *
        This order and judgment is not binding precedent except under the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.
U.S.C. § 922(g)(1). He was sentenced to fifty-seven months’ imprisonment.

Claiming that sentence is substantively unreasonable, Clark appeals. We affirm.



                                 BACKGROUND

      In October 2005, officers from a Bureau of Alcohol, Tobacco and Firearms

task force investigated a report of a stolen firearm being sold to a pawn shop in

Topeka, Kansas. The officers determined that Clark had sold the firearm in

question. When the officers interviewed him, Clark readily admitted selling the

gun, although he stated he had not stolen it. Clark subsequently stated that he

sold the firearm for money to buy diapers and milk for his son, and he further

stated that he used some of the proceeds from the weapon sale to buy marijuana.

      In preparation for sentencing under the United States Sentencing

Commission, Guidelines Manual (“USSG”), the United States Probation Office

prepared a presentence investigation report (“PSR”). The PSR determined that

Clark’s base offense level was twenty, pursuant to USSG §2K2.1(a)(4), and added

two levels because the weapon had been stolen, resulting in an adjusted offense

level of twenty-two. After a three-level reduction for acceptance of

responsibility, Clark’s total offense level was nineteen. With a criminal history

category of V, the applicable advisory Guidelines range was fifty-seven to

seventy-one months.




                                        -2-
      Clark filed a sentencing memorandum, in which he asked the court to

depart and/or vary downward from the advisory sentencing range, based upon

Clark’s mental illness and the circumstances of the offense. More specifically,

Clark argued that he only sold the gun “to purchase diapers and milk for his

eighteen-month-old son”; that a Guidelines sentence “would create an

unwarranted disparity with other cases, both in [the District of Kansas], and

around the country”; and that he committed the offense while suffering from a

significantly reduced mental capacity. Sentencing Mem. at 4, 8, R. Vol. 1. At

sentencing, Clark presented evidence of his diminished mental capacity through

the testimony of Dr. George Hough, a licensed psychologist. The district court

refused to depart or vary downward and sentenced Clark to fifty-seven months,

which was at the bottom of the applicable advisory Guidelines range.



                                  DISCUSSION

      We review sentences for reasonableness. United States v. Verdin-Garcia,

516 F.3d 884, 895 (10th Cir.), cert. denied, 129 S. Ct. 161 (2008).

Reasonableness encompasses both a procedural and a substantive component. Id.

Clark complains only that his sentence is substantively unreasonable. “A

sentence is substantively unreasonable if the length of the sentence is

unreasonable given the totality of the circumstances in light of the 18 U.S.C.

§ 3553(a) factors.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.), cert.

                                         -3-
denied, 129 S. Ct. 428 (2008). “Our review of the substantive reasonableness of a

sentence is limited to determining whether the sentencing judge abused his

discretion.” Verdin-Garcia, 516 F.3d at 898. Sentences imposed within a

properly calculated Guidelines range are accorded a presumption of substantive

reasonableness. United States v. Hernandez, 509 F.3d 1290, 1298 (10th Cir.

2007).

         Our inquiry is directed to whether the district court abused its discretion in

sentencing Clark to fifty-seven months’ imprisonment. The district court

explained its sentence as follows:

                Defendant has a very substantial criminal record. He has eight
         juvenile convictions. Most of the convictions are for misdemeanor
         theft. But, there is also a juvenile conviction for burglary and a
         juvenile conviction in 1990 for first degree murder. Defendant has
         seven adult convictions, including convictions for robbery and
         burglary. One conviction for “criminal use of weapons” involved a
         gunshot victim. Defendant has two vehicle burglary charges
         pending.

                                           ....

               The task of the court is to impose a sentence sufficient, but not
         greater than necessary, to comply with the purposes of 18 U.S.C.
         § 3553(a)(2), after considering the nature and circumstances of the
         offense, the history and characteristics of the defendant, the
         Sentencing Guidelines, the need to avoid unwarranted sentencing
         disparities, and the other factors mentioned in the statute. After
         considering all of these factors, the court believes a sentence of 57
         months is appropriate in this case.

               The court has considered the circumstances of pawning the gun
         which led to the charge in this case. The court does not believe these
         circumstances provide grounds for a departure in this case. We have

                                            -4-
also considered the arguments for granting a variance on these
grounds. The circumstances of the offense is one reason the court
believes it is appropriate to sentence at the bottom of the guideline
range in spite of defendant’s past record. But, we do not believe it is
appropriate to vary from the Guideline range given the history and
characteristics of the defendant, particularly defendant’s criminal
history.

       The court has considered defendant’s mental illness. The court
is not convinced that defendant’s mental illness played a substantial
role in the crime of conviction in this case. Dr. Hough’s testimony
suggests that defendant’s mental illness did play a role in the crime.
However, Dr. Hough did not examine defendant in any detail on that
issue. Moreover, his explanation that defendant’s mental illness
impairs defendant’s ability to consider the long-term consequences of
his actions, suggests that innumerable defendants before the court
suffer from the same “mental illness” because the court frequently
sentences persons who have failed to consider the long-term
consequences of their behavior.

                                 ....

      Defense counsel also suggested in her questioning that
defendant’s mental illness contributed to his financial needs and
therefore to the motivation to commit a crime. There can be little
doubt that defendant’s borderline intelligence, antisocial personality
disorder, criminal record, dysfunctional upbringing, as well as his
possible schizophrenia or schizoaffective disorder, have a deleterious
impact upon his ability to meet his financial needs. But we do not
believe that defendant has demonstrated a “significantly reduced
mental capacity” as defined in U.S.S.G. §5K2.13. . . .

       Therefore, the court believes there are no grounds for
departure on the basis of diminished capacity. In addition, the court
is not persuaded that a variance is justified on the grounds of mental
illness. Defendant has consistently violated the law as a juvenile and
as an adult. The court is not convinced that mental health treatment
will protect the public from further crimes by defendant. . . .

     Finally, the court has considered the need to avoid
unwarranted sentence disparities among defendants with similar

                                   -5-
      records. . . . [T]he court believes a sentence of 57 months . . . is
      similar to the sentences given in many cases involving the same
      charge and similar defendants.

Order at 2, 6-7, 9-10, R. Vol. 1.

      We agree with the district court’s analysis of the § 3553(a) factors as they

pertain to Clark and his crime. We cannot say that the district court abused its

discretion in selecting the sentence it did. The court thoroughly and properly

explained why the sentence was appropriate in light of the § 3553(a) factors.

Clark has failed to rebut the presumption that the within-Guideline sentence

selected by the district court is reasonable.



                                    CONCLUSION

      For the foregoing reasons, the sentence is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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