                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 14, 2013
                                                              Elisabeth A. Shumaker
                                   TENTH CIRCUIT                  Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 12-6199
 v.
                                               (D.C. No. 12-CR-00122-HE-1)
                                                       (W.D. Okla.)
 JIMMIE EUGENE JOHNSON, JR.,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      While serving a term of supervised release for prior felony drug and gun

convictions, Jimmie Johnson, Jr. and his co-defendant, Julius Turrentine, were

caught with nearly eleven kilograms of cocaine during a traffic stop. Ultimately,

Mr. Johnson agreed to plead guilty both to new drug charges and to violating the

terms of his supervised release. At sentencing, the district court calculated Mr.

Johnson’s advisory guidelines range to be 120 to 135 months for the drug offense


      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and 46 to 57 months for violating his supervised release. In the end, the district

court imposed a total sentence of 181 months: 135 months for the cocaine

offense and 46 months, to run consecutively, for the supervised release violation.

In ordering the terms to run consecutively rather than concurrently, the district

court’s sentence followed the guidelines’s advice, which suggests that “any term

of imprisonment imposed upon the revocation of probation or supervised release

shall be ordered to be served consecutively to any sentence of imprisonment that

the defendant is serving.” U.S.S.G. § 7B1.3(f).

      Now on appeal, Mr. Johnson doesn’t suggest that the district court

miscalculated the guidelines range or committed any other procedural error.

Instead, he argues that the district court’s decision to impose consecutive rather

than concurrent sentences rendered his sentence substantively unreasonable.

Though the guidelines expressly advise a consecutive sentence, Mr. Johnson says

the district court’s decision was still error. Error because the court said it chose

to follow the guidelines’ advice in part to ensure a degree of “proportionality”

between Mr. Johnson’s sentence and Mr. Turrentine’s. As it happens, Mr.

Turrentine also violated the terms of his supervised release and was sentenced to

240 months for the cocaine offense and a 24 month concurrent sentence for the

supervised release violation. The court said it thought any lower sentence for Mr.

Johnson than 181 months would be inappropriate in light of the fact he and Mr.

Turrentine were convicted of the same offense, played similar roles in committing

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the offense, and had committed similar and serious felonies in the past. Mr.

Johnson argues this assessment was error because he and Mr. Turrentine stood in

“significantly different positions.” Among other things, Mr. Johnson points to the

fact Mr. Turrentine chose to go to trial and there faced an enhancement for career

offender status, while Mr. Johnson agreed to plead guilty.

      We discern no reversible error. The district court’s within-guidelines

sentence is accorded a presumption of reasonableness. United States v. McBride,

633 F.3d 1229, 1232-33 (10th Cir. 2011). That presumption can only be rebutted

“by demonstrating that the sentence is unreasonable in light of the other

sentencing factors laid out in 18 U.S.C. § 3553(a).” Id. at 1233 (alterations

omitted). Yet one of the § 3553(a) sentencing factors expressly authorizes the

district court to consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3353(a)(6); see also generally United States v. Smart, 518

F.3d 800, 804 (10th Cir. 2008) (“[T]he district court may compare defendants

when deciding a sentence.”). Accordingly, the district court was surely within its

rights to consider and seek to avoid an unwarranted disparity between Mr.

Johnson and his co-defendant. Neither did the district court ignore meaningful

differences between the two men. The district court expressly took note of and

sought to account for the fact that Mr. Johnson took some degree of responsibility

for his actions by pleading guilty while Mr. Turrentine proceeded to trial. Indeed,

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the court issued a total sentence for Mr. Johnson that remained a good deal

shorter than Mr. Turrentine’s (181 versus 240 months). The district court also

clearly explained that it thought an even greater disparity between the two men

was unwarranted because, but for this (admittedly significant) difference, the men

were otherwise similarly situated given their respective roles in the offense and

criminal history. While we do not doubt different people might assess the

similarities and differences between Mr. Johnson and his co-defendant differently,

we are aware of no authority suggesting the district court’s assessment was

outside the “range of possible outcomes the facts and law at issue can fairly

support,” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2011), and

Mr. Johnson directs us to none. Accordingly, we cannot say (as we must to

reverse) that the district court’s judgment was unreasonable. Affirmed.

                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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