                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 12, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 09-4058
    v.                                         (D.C. No. 2:08-CR-00570-TS-1)
                                                          (D. Utah)
    TIMOTHY BRIAN LINER,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         Defendant-Appellant Timothy Brian Liner pleaded guilty to one of five

counts of possession of methamphetamine with intent to distribute it, in violation

of 21 U.S.C. § 841(a)(1). The conviction carried a five year mandatory minimum

sentence. The district court granted Mr. Liner a four-level downward departure

based on his substantial assistance. With this departure, Mr. Liner’s advisory



*
       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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
sentencing guideline range was 110 to 137 months of imprisonment. Mr. Liner

moved for a downward variance, requesting a 60-month sentence. The district

court denied this motion and sentenced Mr. Liner to 110 months’ imprisonment.

Mr. Liner appeals the substantive reasonableness of his sentence. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                I. BACKGROUND

      Mr. Liner was arrested five times in seven months; each time police found

methamphetamine and related drug paraphernalia on Mr. Liner or in his vehicle or

residence. He was federally indicted on five counts of possession of

methamphetamine with intent to distribute, and he pleaded guilty to one of the

drug counts.

      A Presentence Investigation Report (“PSR”) was prepared. The total drug

quantity from the five arrests was 141.7 grams, which resulted in an offense level

of 32. The PSR indicated that Mr. Liner, then 42, began abusing alcohol and

marijuana in 1982, when he was 16 years old. He began using cocaine when he

was 22, and methamphetamine when he was 29. According to the PSR, Mr. Liner

smokes or injects methamphetamine every day. He has experimented with heroin,

LSD, mushrooms, and ecstacy. He sells drugs to support his own drug habit. He

attended, but did not complete, two in-patient substance abuse treatment

programs, once in 1995 and the other in 2003.




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      Mr. Liner was convicted of theft once in 1985, three times in 1988; once in

1991; and once in 1992. He was convicted of disorderly conduct in 1988; false

evidence of title in 1989; criminal trespass in 1990; driving under the influence

and giving false information to police in 1991; having an open container in 1997;

attempted illegal possession/use of a controlled substance and theft in 1997;

simple assault in 1997; possession of drug paraphernalia in 1997; illegal

possession and use of a controlled substance in 1999; disorderly conduct in 2000;

possession of a dangerous weapon in 2000; illegal possession of a controlled

substance in 2000; failure to appear in 2003; simple assault in 2003; failure to

stop for police in 2004; and no proof of insurance in 2007. Accordingly, under

the United States Sentencing Guidelines, Mr. Liner’s criminal history resulted in

a Criminal History Category VI. The PSR calculated that with this criminal

history, and after making a departure for acceptance of responsibility, Mr. Liner’s

offense level was 29 and his Guideline range was 151 to 188 months.

      The government did not object to the PSR and requested the court sentence

Mr. Liner to 114 months’ imprisonment. Mr. Liner did not object to the

sentencing factors but he did file a sentencing memorandum requesting a variance

from the Guidelines. Arguing that he was drug addict who needed rehabilitation,

and that all of his prior crimes were related to his addiction, he asked the court to

sentence him near the mandatory minimum of 60 months, and allow him to

complete the Residential Drug Abuse Program (RDAP).

                                          -3-
      The district court denied Mr. Liner’s motion for a below-guidelines

sentence of 60 months, but it did recommend that he be enrolled in the RDAP.

The court granted Mr. Liner a four-level downward departure for substantial

assistance. Thus, applying the Guidelines, the district court found that Mr. Liner

had an offense level of 25, a criminal history of category VI, with a resulting

Guideline range of 110 to 137 months. Considering the sentencing factors of

18 U.S.C. § 3553, the district court concluded that Mr. Liner’s history and

characteristics weighed in favor of a high sentence. The court noted that

Mr. Liner’s offense was a very serious one: he was a drug distributor, who had

possessed over 140 grams of methamphetamine. It noted that Mr. Liner had

embraced a drug and crime lifestyle; had learned nothing from the relatively

lenient sentences he had received in the past; reoffended as soon as he was in a

position to do so; had little or no history of employment; and failed to complete

two drug treatment programs. The district court did acknowledge that Mr. Liner

was trying to change his life by taking classes and receiving a high school

diploma. But the court expressed concern that Mr. Liner had several episodes of

violent criminal history, which it described. The court sentenced Mr. Liner to

110 months’ imprisonment, followed by 60 months of supervised release.

                                   II. ANALYSIS

      On appeal, Mr. Liner challenges the substantive reasonableness of his

sentence. He acknowledges that the sentence was within a properly calculated

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sentencing Guideline range and that the district court considered and discussed all

of the relevant sentencing factors set out in § 3553. Nonetheless, he argues that

the circumstances of his offense are markedly different from the circumstances

underlying most § 841(a)(1) prosecutions and, thus, that his sentence was

manifestly unreasonable. We find no merit in Mr. Liner’s argument.

      This court reviews sentences for reasonableness under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We

also review “a district court’s decision to grant or deny a variance under a

deferential abuse of discretion standard.” United States v. Beltran, 571 F.3d

1013, 1018 (10th Cir. 2009). A sentence that is within a properly-calculated

Guidelines range is entitled to a rebuttable presumption of reasonableness.

United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008), cert. denied, 129

S.Ct. 1391 (2009). A defendant may rebut this presumption by demonstrating that

the sentence is unreasonable when viewed against the § 3553(a) factors. Id.

      Mr. Liner does not assert any procedural unreasonableness, only

substantive unreasonableness. “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 [§ 3553(a)].” United States v. Conlan, 500 F.3d

1167, 1169 (10th Cir. 2007). A district court’s sentence is substantively

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




                                         -5-
unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)

(quotation omitted).

      There is no evidentiary support for Mr. Liner’s assertion that the

circumstances of his offense are markedly different from most § 841 prosecutions.

He possessed enough methamphetamine in each of the five arrests that led to his

indictment to trigger a five-year mandatory minimum sentence on each count.

Thus, his argument that he possessed relatively small amounts of

methamphetamine is meritless. Further, he admits that he was distributing

methamphetamine, a very serious offense.

      Mr. Liner’s assertion that the district court’s sentence was based on a

mischaracterization of his violent criminal history is also unpersuasive. The

district court stated that Mr. Liner had a conviction for “swinging at officers with

a loaded gun.” R. Vol. IV at 13. This statement does appear to slightly misstate

the PSR’s statement that Mr. Liner repeatedly swung at officers during an arrest

and that police later found a loaded gun in a nearby drawer. But this minor

discrepancy does not alter the violent nature of swinging at police officers and

possessing a loaded firearm, nor any of Mr. Liner’s other violent criminal

behavior, including beating his girlfriend and holding her captive for a day and

punching his girlfriend’s brother. The district court’s characterization of

Mr. Liner’s violent criminal behavior is supported by the record.




                                         -6-
      Mr. Liner’s assertion that he was quickly released after each of the five

arrests does not demonstrate that his sentence was unreasonable. Rather, it

merely supports the district court’s finding that Mr. Liner reoffends as soon as he

is in a position to do so. Similarly, Mr. Liner’s assertion that he is addicted and

in need of drug rehabilitation does not demonstrate that the district court’s

sentence was manifestly unreasonable. The district court did take into

consideration Mr. Liner’s need for “medical care, or other correctional

treatment,” § 3553(a)(2)(D), and recommended him for the RDAP program. But

the court also took into account all of the § 3553(a) factors, including the

seriousness of Mr. Liner’s offense; his repeated offenses; the need for adequate

deterrence; and protecting the public from further crimes by Mr. Liner.

      The seriousness of Mr. Liner’s criminal conduct, including his drug

distribution; his long drug lifestyle and criminal, occasionally violent, history; his

repeated offenses; and his failure to complete two previous treatment programs all

support the district court’s sentence. Indeed, we find Mr. Liner’s arguments that

his sentence was manifestly unreasonable to be so wholly without merit that we

are compelled to remind Mr. Liner’s counsel of his ethical obligation not to

present frivolous arguments to this court. Attorneys may always file a motion to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), when there are

no non-frivolous grounds for appeal.




                                          -7-
      In summary, given the facts presented and the court’s reasoned analysis of

the § 3553(a) sentencing factors, its decision to deny Mr. Liner’s requested

variance and to impose a within-Guidelines range sentence was not an abuse of

discretion.

      AFFIRMED.


                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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