                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                              FOR THE TENTH CIRCUIT                           July 18, 2017

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-6314
                                                    (D.C. No. 5:11-CR-00341-HE-1)
MICHAEL SHAWN RICHARDSON,                                    (W.D. Okla.)
a/k/a Irish Mike,

      Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

       In 2011, Defendant Michael Richardson was charged with being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States notified

Defendant that it intended to seek an enhanced penalty under the Armed Career Criminal

Act (ACCA) based on two prior convictions for second-degree burglary and one for

aggravated eluding. Defendant pled guilty and did not object to the ACCA enhancement.




       *
         Neither party has requested oral argument. After examining the briefs and
appellate record, this panel agrees 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. 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not binding precedent, except under the doctrines of law of the case, res judicata, and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.
The district court sentenced him to the mandatory minimum sentence of 180 months’

imprisonment.

       About four years later, Defendant filed a motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255 based on Johnson v. United States, 135 S. Ct. 2551

(2015). In response, the government conceded that Defendant’s conviction for

aggravated eluding no longer qualified as a predicate ACCA offense, and that he was

entitled to resentencing. Based on the current Sentencing Guidelines, Defendant’s

revised advisory sentencing range was thirty-three to forty-one months’ imprisonment.

However, the probation office’s revised presentence report outlined several factors that

would warrant an upward departure or variance, including the fact that his criminal

history category—VI—substantially underrepresented the seriousness of Defendant’s

criminal history and the likelihood that he would commit other crimes.

       These factors notwithstanding, Defendant requested a downward departure or

variance. He argued he was “a changed and better man,” citing his efforts at

rehabilitation in prison, including the completion of educational programs, potential

employment opportunities upon release, and his “improved strong family ties.”

(Appellant’s Opening Br. at 7, 6.) Defendant pointed out that, because he had already

served 59 months, a within- or below-Guidelines sentence would, in effect, amount to

“time served,” and that such a sentence would result in his transfer to the Oklahoma

Department of Corrections to serve two state sentences of ten and twelve years’

imprisonment, which were running concurrently with each other and with the federal

sentence.

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       The district court credited Defendant for taking advantage of “educational

opportunities” while incarcerated, and it acknowledged that he had made an “effort to

prepare himself for a life not involving criminal activity.” (R. Vol. I at 115.) But, it

agreed with the probation office that the advisory Guideline range “understate[d] the

significance of the defendant’s criminal history,” i.e., “16 or 17 criminal convictions

spanning virtually his whole life.” (Id. at 114, 113.) The court highlighted Defendant’s

“fairly significant history of auto theft or related theft-type convictions,” including two

convictions that occurred after his original sentencing. (Id. at 114.) Consequently, after

considering the statutory sentencing factors, it varied upward and sentenced Defendant to

seventy-four months’ imprisonment. Defendant timely appealed, arguing that his

amended sentence is substantively unreasonable.

       We review the substantive reasonableness of a sentence for abuse of discretion.

United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010). “A district court abuses its

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

manifestly unreasonable.” Id. “[I]n many cases there will be a range of possible

outcomes the facts and law at issue can fairly support; rather than pick and choose among

them ourselves, we will defer to the district court’s judgment so long as it falls within the

realm of these rationally available choices.” United States v. McComb, 519 F.3d 1049,

1053 (10th Cir. 2007).



                                            -3-
       Defendant has not demonstrated that the district court abused its discretion. The

court properly took into account all of the § 3553(a) factors and gave due weight to

Defendant’s extensive criminal history. When, as here, “the balance struck by the district

court among the factors set out in § 3553(a) is not arbitrary, capricious, or manifestly

unreasonable, we must defer to that decision even if we would not have struck the same

balance in the first instance.” United States v. Sells, 541 F.3d 1227, 1239 (10th Cir.

2008). “[I]t is not the job of an appellate court to review de novo the balance struck by a

district court among the factors set out in § 3553(a).” Id.

       Accordingly, we AFFIRM.

                                          Entered for the Court



                                          Monroe G. McKay
                                          Circuit Judge




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