                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS May 28, 2015
                                                                 Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                      Clerk of Court
                      _________________________________

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                        No. 14-1445
                                               (D.C. No. 1:14-CR-00106-REB-1)
ANTHONY REY,                                             (D. Colorado)

       Defendant - Appellant.
                    _________________________________

                          ORDER AND JUDGMENT *
                      _________________________________

Before BRISCOE, Chief Judge, MURPHY, and BACHARACH, Circuit Judges.
                 _________________________________


      The defendant, Mr. Anthony Rey, was convicted of possessing a firearm

and ammunition after conviction of a felony. In considering the sentence, the

court calculated the guideline range (57-71 months) based in part on a conviction

9½ years earlier. In considering the guideline range and other statutory factors,

the court ultimately sentenced Mr. Rey at the bottom of the guideline range (57

months). In this appeal, we are asked to decide: Did consideration of a 9½-year-



*
      The Court has determined that oral argument would not materially aid our
consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Thus, we have decided the appeal based on the briefs.

       Our order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel.
old conviction render the sentence substantively unreasonable? We conclude the

conviction was not too old and that the sentence was substantively reasonable. As

a result, we affirm.

I.    Standard of Review

      The parties disagree on the standard of review. The defendant urges

application of the abuse-of-discretion standard; the government argues that we

should apply the plain-error standard because the defendant failed to raise its

present argument in district court. For the sake of argument, we can apply the

standard urged by the defendant: the abuse-of-discretion standard. Under this

standard, we reverse only if the district court imposed a sentence that was

“‘arbitrary, capricious, whimsical, or manifestly unreasonable.’” United States v.

White, 782 F.3d 1118, 1129 (10th Cir. 2015) (quoting United States v. Munoz-

Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)). In applying this standard, we can

presume that a sentence is substantively reasonable when it falls within the

guideline range. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006). With this presumption, we can reverse only if the district court selected a

sentence that was outside the bounds of permissible choice. United States v.

Regan, 627 F.3d 1348, 1352 (10th Cir. 2010).

II.   Application of the Standard of Review

      Applying this standard, we conclude that the district court chose a sentence

within permissible bounds. Because the court imposed a prison term within the

                                         2
guideline range, we presume that the sentence was substantively reasonable. See

Kristl, 437 F.3d at 1054.

      This presumption is rebuttable. See id. Mr. Rey tries to rebut the

presumption, arguing that his conviction 9½ years earlier was too old to be

meaningful. The court could have discounted the conviction because of the

number of years that had passed. But the court also had the discretion to consider

the conviction notwithstanding the passage of 9½ years. After all, the conviction

fell within the Sentencing Commission’s cutoff period (10 years). See U.S.

Sentencing Guidelines Manual § 4A1.2(e)(2).

      Though the conviction was 9½ years old, the court pointed to four facts that

supported a relatively harsh sentence:

      1.     The conviction arose from an incident in which Mr. Rey menaced a
             person with a shotgun.

      2.     Mr. Rey had a criminal history that was extensive and disturbing.

      3.     He had a history of violence, weapons possession, abuse, and failure
             to comply with court conditions.

      4.     Four prior crimes were not taken into account under the sentencing
             guidelines.

Sent. Tr. at 46-48. Balancing these factors, the court chose to sentence Mr. Rey at




                                         3
the bottom of the guideline range. That choice fell within the district court’s

discretion. As a result, we affirm.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




                                          4
