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

                          FOR THE TENTH CIRCUIT                 October 13, 2017
                        _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                    No. 16-3370
v.                                        (D.C. No. 2:16-CR-20022-JAR-2)
                                                      (D. Kan.)
GARY JORDAN,

      Defendant - Appellant.
                    _________________________________

                         ORDER AND JUDGMENT *
                      _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                 _________________________________

      This appeal is brought by Mr. Gary Jordan, who was convicted of

three charges arising from an armed bank robbery. The district court

sentenced Mr. Jordan to prison for 360 months. He appeals, arguing that

the sentence is substantively unreasonable because the district court failed

to meaningfully consider a methamphetamine addiction. We disagree.


*
      The parties have not requested oral argument, and the Court
concludes 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.
Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
I.    We apply the abuse-of-discretion standard.

      The length of a sentence must be substantively reasonable. United

States v. Walker, 844 F.3d 1253, 1255 (10th Cir. 2017). We review the

substantive reasonableness of Mr. Jordan’s sentence under the abuse-of-

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

Cir. 2009). Under this standard, we consider a sentence substantively

unreasonable only if it is arbitrary, capricious, whimsical, or manifestly

unreasonable. United States v. Lente, 759 F.3d 1149, 1158 (10th Cir.

2014).

      To exercise this discretion, the district court must

           “individualize sentences without creating unwarranted
            sentencing disparities” and

           “consider the seriousness of the crimes while recognizing the
            uniqueness of the individuals committing crimes.”

Walker, 844 F.3d at 1255. In individualizing a sentence, the district court

occupies an ideal position because of the opportunity to observe and

interact with the defendant. Id.

II.   The district court applied an upward departure and variance.

      Mr. Jordan pleaded guilty to three charges: (1) armed bank robbery,

(2) use of a firearm during and in relation to a crime of violence, and

(3) possession of a firearm after a felony conviction. See 18 U.S.C.


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§§ 2113(a), (d), 922(g)(1), 924(a)(2), (c)(1)(A). The crimes stemmed from

Mr. Jordan’s robbery of a bank while carrying a semiautomatic firearm.

Mr. Jordan drove the getaway car, with 2 adults and a 19-month-old child.

A high-speed chase ensued, with one of the robbers shooting at police cars

in hot pursuit. The chase ended when Mr. Jordan crashed his car, quickly

got out, and tried to carjack a nearby motorist. At that point, Mr. Jordan

was finally captured.

     The district court calculated a total offense level of 31 and assigned

a criminal-history category of IV. Based on this offense level and criminal-

history category, the guideline range was 151 to 188 months. But the

district court departed and varied upward to 360 months. In departing

upward, the district court invoked guideline application notes addressing

the extent of the danger and the degree of culpability.

     For the extent of the danger, one application note authorizes an

upward departure when the conduct creates a substantial risk of death or

bodily injury to more than one person. U.S.S.G. § 3C1.2 cmt. n.6. Invoking

this application note, the district court reasoned that Mr. Jordan’s conduct

had endangered officers, bystanders, and a 19-month-old child.

     For the degree of culpability, another application note authorizes an

upward departure when the degree of culpability exceeds recklessness. Id.


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cmt. n.2. Invoking this application note, the district court reasoned that the

car chase had involved misconduct that was intentional rather than just

reckless.

       The court also concluded that an upward variance was appropriate.

For the variance, the court discussed two of the factors in 18 U.S.C.

§ 3553(a): (1) the characteristics of the defendant, and (2) the nature and

circumstances of the offense. In addressing Mr. Jordan’s personal

characteristics, the district court noted an abusive childhood and a need for

counseling and substance-abuse treatment, which would weigh against an

upward variance. But the court also discussed the nature of Mr. Jordan’s

crime, emphasizing the danger to others. This danger led the district court

to decide on a 360-month sentence.

III.   The sentence of 360 months fell within the district court’s
       discretion.

       “Substantive reasonableness involves whether the length of the

sentence is reasonable given all the circumstances of the case in light of

the factors set forth in 18 U.S.C. § 3553(a).” Lente, 759 F.3d at 1155.

       Mr. Jordan contends that the overall length of his sentence is

substantively unreasonable because the district court did not consider Mr.




                                       4
Jordan’s methamphetamine addiction. 1 We disagree. The district court did

consider the methamphetamine addiction but also considered Mr. Jordan’s

use of firearms, the presence of a 19-month-old child in the back seat of

the car, and the danger to bystanders and officers. See United States v.

Stile, 845 F.3d 425, 433 (1st Cir. 2017) (holding that a sentence was

substantively reasonable because the district court considered the

defendant’s drug addiction but also considered his planning of the crime,

his threats, and the need for deterrence).

      Considering these factors, the district court determined that an

upward departure and variance were appropriate. Mr. Jordan disagrees,

arguing that the district court gave insufficient weight to the addiction.

The threshold issue is how to approach challenges to the weight given a

particular sentencing factor.

      We have sometimes held that we cannot disturb a sentence based on

the district court’s weighing of a statutory sentencing factor. See, e.g.,

United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (stating that we

cannot examine the weight that a district court assigns to statutory

sentencing factors). But other times, we have considered whether a district

court had given a particular factor too much or too little weight.
1
     The government contends that Mr. Jordan waived his challenge to the
upward departure. For the sake of argument, we assume that the
government is incorrect.
                                     5
      For example, in United States v. Walker, 844 F.3d 1253 (10th Cir.

2017), we held that a bank robber’s sentence was unreasonably short

because of the district court’s assignment of inadequate weight to statutory

factors supporting a longer sentence. 844 F.3d at 1255. So, there are at

least some circumstances in which we will reverse based on a district

court’s assignment of weight to a particular sentencing factor.

      But these circumstances are rare. In Walker, for example, we were

addressing a sentence of time served (33 days in pretrial confinement for a

serial bank robber). See id. at 1255, 1258. Our case is far different.

      Here, the sentencing court expressly considered mitigating factors,

consisting of not only the methamphetamine addiction but also an abusive

childhood and a learning disability. In addition, however, the court

considered three other factors supporting a heavy sentence:

      1.    Mr. Jordan endangered dozens by driving the getaway car over
            100 mph, veering into oncoming traffic, forcing cars out of
            their lanes, driving on the shoulder, and running stoplights
            while a companion shot at pursuing police cars. All the while,
            Mr. Jordan knew that a 19-month-old child was in the back
            seat.

      2.    Mr. Jordan tried to carjack an automobile even after the chase
            had ended in a crash.

      3.    Mr. Jordan had six prior felony convictions in which two
            involved firearms.



                                      6
     The district court had to balance these aggravating circumstances

against the mitigating factors, such as the addiction to methamphetamine.

One count could have resulted in a life sentence; two of the counts could

have resulted in a 35-year sentence. See 18 U.S.C. §§ 924(a)(2),

924(c)(1)(A), 2113(d). The district court ultimately decided on a sentence

totaling 360 months for all of the counts. This balancing of the statutory

factors was not arbitrary, capricious, whimsical, or manifestly

unreasonable. Thus, we affirm.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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