                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 June 19, 2012
                                   TENTH CIRCUIT             Elisabeth A. Shumaker
                                                                 Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                    No. 11-3324
                                           (D.C. No. 6:11-CR-10062-01-MLB-1)
 KARL BURGDORF,                                          (D. Kan.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Karl Burgdorf arranged to purchase over 47 grams of methamphetamine

and to transport it from Mexico to Kansas for resale. For this he was charged

with — and eventually pleaded guilty to — a federal racketeering offense. See 18

U.S.C. § 1952. At sentencing, the district court calculated Mr. Burgdorf’s

advisory guidelines range to be 46 to 57 months. But because of Mr. Burgdorf’s

long criminal history, the district court departed upward to the statutory maximum



      *
         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order and judgment is not binding precedent except under the doctrines of law of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.
of 60 months. Now on appeal, Mr. Burgdorf doesn’t suggest that the district

court miscalculated the guidelines range or committed any other procedural error.

Instead, he argues his sentence is substantively unreasonable.

      We review the district court’s sentencing decision only for abuse of

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

Under this standard, we owe the district court’s decision “substantial deference”

and may reverse only if the decision is “arbitrary, capricious, whimsical, or

manifestly unreasonable.” Id. Seeking to clear this high hurdle, Mr. Burgdorf

claims the district court placed too much weight on his prior criminal history and

gave short shrift to his rehabilitative needs. We cannot agree.

      While Mr. Burgdorf tries to downplay his criminal history, he has no fewer

than twenty-four adult criminal convictions. Mr. Burgdorf stresses that some of

his convictions are old and others involve traffic violations. But some are also

serious (burglary and drug offenses), many are recent, and the traffic offenses

turn out to include several DUIs. Despite all this, the advisory guidelines placed

Mr. Burgdorf in criminal history category I, the lowest category. It was hardly

reversibly unreasonable for the district court to conclude this categorization failed

to give appropriate weight to Mr. Burgdorf’s nearly unbroken record of criminal

activity spanning over thirty years. See United States v. Moore, 456 F. App’x

762, 764 (10th Cir. 2012).




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      It was likewise reasonable for the district court to conclude the prospects

for his rehabilitation were dim and that incarceration rather than supervised

release would best protect the community and deter future offense. Despite Mr.

Burgdorf’s protestation to the contrary, the district court was not required to

credit his expression of remorse or his promise to change his ways. Given the

length and consistency of Mr. Burgdorf’s past record, the court was well within

its discretion to invoke the maxim that the best predictor of future behavior is past

behavior.

      Affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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