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

                                    TENTH CIRCUIT                            June 4, 2013

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

           Plaintiff-Appellee,
 v.                                                 Nos. 12-1179, 12-1181 & 12-1182
 ALBERT LAWRENCE VAUGHAN,                        (D.C. Nos. 1:05-CR-00368-MSK-1 and
                                                      1:11-CR-00280-MSK-1 and
           Defendant-Appellant.                         1:11-CR-00310-MSK-1)
                                                               (D. Colo.)


                                 ORDER AND JUDGMENT*


Before KELLY, BALDOCK, Circuit Judges, and JOHNSON, District Judge.**


       In November 2011, Defendant-Appellant Albert Vaughan (“Vaughan”) pled guilty

to two charges of armed bank robbery and one charge of bank robbery arising from

criminal conduct in Colorado, Arizona, and Utah. Vaughan received a one hundred

month sentence on each charge with the sentences to run concurrent to each other.


       *
          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 This order and judgment is not binding precedent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.
       **
         Honorable William P. Johnson, United States District Judge, District of New
Mexico, sitting by designation.
Vaughan had previously been convicted on charges of bank robbery in Nevada and

armed bank robbery in Kansas. On appeal, Vaughan contends that the district court

should not have considered the sentences for his Nevada and Kansas robberies as “prior

sentences” for the purposes of calculating his criminal history category under the United

States Sentencing Guidelines. Vaughan also contends that the sentence imposed is

unreasonable. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

                                               I

                                       Factual background

       Between September 30, 2004, and May 2, 2005, Vaughan robbed nine banks in

Nevada, Kansas, Arizona, Utah, and Colorado. He was subsequently charged with five

counts of bank robbery in the District of Nevada, to which he pled guilty. Vaughan was

sentenced to seventy-eight months imprisonment as to each count, to be served

concurrently.1 Vaughan was then indicted in the District of Kansas and charged with one

count of armed bank robbery and one count of discharging a firearm during a crime of

violence. Vaughan proceeded to trial in this case and was convicted.2 He was sentenced

to seventy-eight months as to the armed robbery count, and 120 months as to the firearm

count. The firearm sentence was to be served consecutively to the bank robbery count as

well as to his Nevada sentence, as required by 18 U.S.C.A. § 924(c)(1)(D). Vaughn is

still serving time on this sentence.

1
  Vaughan completed this 78 month sentence before being sentenced in the case that is the
subject of this appeal.
2
  Vaughan appealed these convictions and this Court affirmed. United States v. Vaughan, 450
Fed. App’x. 757 (10th Cir. 2011).

                                              -2-
       Following these convictions, Vaughan was charged with one count of armed bank

robbery in the District of Arizona, one count of bank robbery in the District of Utah, and

three counts of armed bank robbery in the District of Colorado. The Arizona and Utah

cases were transferred to the District of Colorado, and all three cases were consolidated

for plea and sentencing purposes. Vaughan pled guilty to the Arizona and Utah charges,

and pled guilty to one of the three Colorado counts of armed bank robbery while the

remaining Colorado charges were dismissed. The judgment and sentence imposed in the

consolidated case in the District of Colorado pertaining to the Arizona, Utah and

Colorado robberies is the subject of this appeal.

                                 Procedural background

       A Presentence Investigation Report (“PSR”) was completed before sentencing in

the instant case. Vaughan’s base offense level for the robberies committed in Utah,

Arizona and Colorado was calculated at level 20 under U.S.S.G. § 2B3.1(a). The offense

level was increased by 2 levels under U.S.S.G. § 2B3.1(b)(1), because the property of a

financial institution was taken, and then by 3 levels under U.S.S.G. § 2B3.1(b)(2)(E),

because a dangerous weapon was brandished during the commission of the offense.

Vaughan’s adjusted offense level moved up from 20 to 25. Because multiple robberies

were committed in Arizona, Utah and Colorado, Vaughan also received a multiple-count

upward adjustment of three levels pursuant to U.S.S.G. § 3D1.4 so the offense level went

up to 28. The final adjustment to Vaughan’s offense level was a 3 level reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b). Thus, the PSR reported a

total offense level for Vaughan of 25.

                                            -3-
       As for Vaughan’s criminal history category, the PSR placed him in category V as

a result of having 10 criminal history points based on prior criminal history. Vaughan

was assessed four criminal history points for two previous driving-while-impaired

convictions, and six criminal history points for prior bank robbery convictions resulting

in sentences in excess of one year and one month. Specifically, he was assessed three

criminal history points under U.S.S.G. § 4A.1(a) for the Nevada bank robbery conviction,

as well as three criminal history points under U.S.S.G. § 4A.1(a) for the Kansas bank

robbery conviction. With a total offense level of 25 and a criminal history category of V,

the PSR determined Vaughan’s advisory sentencing guidelines range to be 100 to 125

months incarceration.

       As relevant to this appeal, Vaughan objected to the PSR on two grounds. First, he

objected to being placed in criminal history category V on the ground that if all his bank

robbery cases had been consolidated at the time of his arrest,3 he would have had only

four criminal history points for the two driving-while-impaired convictions, placing him

in criminal history category II.4 Second, he argued that the sentences imposed for the


3
  Efforts were made to consolidate Vaughan’s bank robbery cases. However, because Vaughan
denied (and continues to deny) that he had committed the Kansas bank robbery, consolidation
efforts were to no avail.
4
  According to the probation officer who calculated Vaughn’s Guidelines sentence, if all of
Vaughn’s bank robbery cases had been consolidated at the time of his arrest in 2007, under the
2006 Edition of the U.S. Guidelines Manual in effect at that time, Vaughan’s guideline offense
level would have been 35, his criminal history category would have been IV thereby resulting in
an advisory guidelines imprisonment range of 235 to 293 months. (Vol. II, doc. 57, at 107-09).
The increase in the base offense level to 35 under this scenario occurs because there would be
additional counts resulting in a multi-offense adjustment, and a 7-level increase pursuant to
§ 2B.31(b)(2)(a) because a firearm was discharged in the Kansas case. (Id. at 107.) However,
during the sentencing hearing relevant to this appeal, the district court found that the parties


                                              -4-
Nevada and Kansas bank robberies were sufficient to meet the requirements of 18 U.S.C.

3553(a). He elaborated on these arguments in motions for a downward variance and for a

downward departure.

       The district court denied the motion for a downward departure, on the grounds that

any overrepresentation of Vaughan’s criminal history resulted from the piecemeal nature

of the prosecution, rather than from any mitigating or aggravating circumstances not

addressed by the Guidelines. The court imposed a within-Guidelines sentence of 100

months for each charge, to run concurrently. However, the court granted Vaughan’s

request for a downward variance, to the extent that it set the 100-month sentence to run

concurrently with the 78-month sentence imposed for the Kansas bank robbery charge.

The court also noted that it could not set the 100-month sentence in the instant case to run

concurrently with the 120-month sentence imposed for the discharge of a firearm charge,

because that sentence was mandated by statute to run consecutively. Consequently,

Vaughan’s total sentence was increased by twenty-two months.

                                              II

                                           Analysis

  The Trial Court Did Not Err in Adding Points for Vaughan’s Prior Sentences of
                                  Imprisonment

       First, Vaughan contends that the district court improperly calculated the advisory

Guidelines sentencing range by including the Nevada and Kansas bank robbery sentences



agreed that if the cases had been consolidated, Vaughan would have been placed in criminal
history category III. (Vol. 7, Sentencing Hearing Transcript, at 45.)

                                             -5-
in his criminal history category computation, because those sentences arose from the

same “relevant conduct” as the Arizona, Utah, and Colorado charges for which he was

being sentenced. Because Vaughan did not raise below the arguments he makes here, we

review for plain error.5 United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007) (“Because [appellant] did not object to the procedure by which his sentence was

determined and explained, we may reverse the district court’s judgment only in the

presence of plain error.”). Plain error occurs when there is (i) error, (ii) that is plain, (iii)

which affects the defendant’s substantial rights, and (iv) which seriously affects the

fairness, integrity, or public reputation of judicial proceedings. United States v. Lopez-

Flores, 444 F.3d 1218, 1222 (10th Cir. 2006). We perceive no error.

       When calculating a defendant’s criminal history under the Guidelines, a district

court must add three points to a criminal history computation for each “prior sentence” of

imprisonment exceeding one year and one month. U.S.S.G. § 4A1.1(a). The Guidelines

define a “prior sentence” as “any sentence previously imposed . . . for conduct not part of

the instant offense.” U.S.S.G. § 4A1.2(a)(1). Conduct that is “part of the instant offense

means conduct that is relevant conduct to the instant offense under the provisions of

§1B1.3.” U.S.S.G. § 4A1.2 app. n. 1.



5
  In his opening brief, Vaughan argues that we review the district court’s factual findings for
clear error, and its legal conclusions de novo. In his reply brief, he abandons this argument and
claims that under United States v. Cuthbertson, 138 F.3d 1325, 1326 (10th Cir. 1998), this court
should review for an abuse of discretion. However, in Cuthbertson, the defendant grounded his
appeal on issues raised at trial. Id. Here, at the sentencing hearing, Vaughan’s counsel expressly
stated that he had no objections to the calculation of the Guidelines sentence. (Vol. 7,
Sentencing Hearing Transcript, at 5.)

                                               -6-
       The government asserts that by arguing that the Nevada and Kansas bank

robberies were “relevant conduct” because they occurred during the “same course of

conduct,” Vaughan’s opening brief relies exclusively on U.S.S.G. § 1B1.3(a)(2). Under

this provision, two offenses qualify as part of the “same course of conduct” if “they are

sufficiently connected or related to each other to warrant the conclusion that they are part

of a single episode, spree, or ongoing series of offenses.” See U.S.S.G. §1B1.3 app. n. 9.

However, the Guidelines also expressly preclude certain offenses from being

“groupable,” or qualifying as the “same course of conduct” under §1B1.3(a)(2). Bank

robbery is one such offense. See §3D1.2(d) (expressly excluding robbery from

grouping); §3D1.2 app. n. 6 (when a defendant “is convicted of three counts of bank

robbery[, t]he counts are not to be grouped together . . .” (emphasis in original)).

Therefore, Vaughan’s multiple bank robberies cannot be grouped together as a “course of

conduct” under §1B1.3(a)(2), and he concedes as much.

       Vaughan argues that this Court must nonetheless analyze his series of bank

robberies under §1B1.3(a)(1), which requires the district court to determine the base

offense level based on “all acts and omission committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant; and . . . that

occurred during the commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or responsibility for that

offense.” See United States v. Cuthbertson, 138 F.3d 1325, 1327 (10th Cir. 1998)

(“Because [the appellant]’s federal offense [is not groupable], in this case § 1B1.3(a)(2)



                                            -7-
does not apply. Instead, we must limit our analysis to the terms of § 1B1.3(a)(1).”). We

agree, but conclude that no error occurred under § 1B1.3(a)(1).

       As we stated in United States v. Flores, “If the conduct at issue is not groupable

under § 3D1.2(d), then it qualifies as ‘relevant conduct’ only if it ‘occurred during the

commission of the offense of conviction, in preparation for that offense, or in the course

of attempting to avoid detection or responsibility for that offense.’” 149 F.3d 1272, 1281

(10th Cir. 1998) (quoting U.S.S.G. § 1B1.3(a)(1)); see also United States v. Maass, 153

F.3d 729 (10th Cir. 1998) (unpublished) (same). This definition of “relevant conduct” is

narrower than the “same course of conduct” addressed in § 1B1.3(a)(2) and defined in

U.S.S.G. §1.B1.3 app. n. 9(B). It does not encompass Vaughan’s Nevada and Kansas

bank robberies, which did not occur during the commission of the Arizona, Utah, and

Colorado bank robberies, in preparation for the latter robberies, or in the course of

attempting to avoid detection or responsibility for them. Vaughan’s analysis of the

similarity, regularity, and temporal proximity of the Nevada and Kansas bank robberies

to the instant bank robberies is relevant only to groupable offenses and does not

demonstrate that the Nevada and Kansas bank robberies constitute relevant conduct under

§ 1B1.3(a)(1). Accordingly, we conclude that the district court did not err in including

those sentences in Vaughan’s criminal history calculation.

       The Sentence Imposed for Bank Robbery and Armed Bank Robbery Is
                    Procedurally and Substantively Reasonable

       Vaughan also contends that the sentence imposed by the district court was not

reasonable because his criminal history was overrepresented and the district court did not


                                            -8-
properly consider the factors identified in 18 U.S.C. §3553(a). We review for an abuse of

discretion, affording substantial deference to the district court in determining “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),” and reverse only when the district court

“renders a judgment that is arbitrary, capricious, whimsical or manifestly unreasonable.”

United States v. Martinez, 610 F.3d 1216, 1226 (10th Cir. 2010).

       Vaughan begins by arguing that the sentence imposed was procedurally

unreasonable because the district court improperly calculated his criminal history

category when it included his sentences for the Nevada and Kansas bank robberies as

prior sentences. This erroneous calculation, he asserts, overrepresented his criminal

history. While Vaughan is correct that failure to properly calculate a Guidelines

sentencing range renders a sentence procedurally unreasonable, Gall v. United States, 552

U.S 38, 51 (2007), because we have already concluded that the district court did not err in

determining that the PSR correctly placed Vaughan in criminal history category V, this

argument fails.

       Vaughan next asserts that his sentence was substantively unreasonable because the

Guidelines calculation resulted in a sentence greater than necessary to achieve the proper

purpose of 18 U.S.C. § 3553(a). In particular, Vaughan alleges that (1) before he

“inexplicably” began robbing banks at the age of 35 years, he was generally a law-

abiding citizen and the owner of a successful computer business; (2) after serving his

remaining Kansas sentence, he will be approaching 60 years of age before he is released

from prison, and would pose no further risk of criminal behavior; (3) the length of the

                                            -9-
sentence results only from the piecemeal fashion in which his offenses were prosecuted,

leading to a more severe punishment than would have resulted if the cases had been

consolidated at the outset; and (4) the additional sentence is excessive and unnecessary to

promote respect for the law or provide for a just punishment.

       Vaughan received a sentence that fell within the properly calculated Guidelines

range, which is afforded a rebuttable presumption of reasonableness on appeal. United

States v. Mumma, 509 F.3d 1239, 1243 (10th Cir. 2007). To the extent that the district

court’s decision that the sentence should run concurrently with the 78-month sentence

imposed for the Kansas bank robbery charge constitutes a downward variance, we “

‘consider the extent of the deviation’ but give ‘due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’”

United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)).

       We conclude that Vaughan has failed to rebut the presumption of reasonableness,

and that any deviation from the Guideless sentence is minimal and justified by the

§ 3553(a) factors. The record shows that the district court considered the relevant

sentencing factors and made particularized findings. Considering Vaughan’s argument

that he had primarily been a law-abiding citizen before he began robbing banks, the

district judge noted that “good people can make bad decisions and they’re still held

accountable for their conduct.” (Vol. VII, Sentencing Hearing Transcript, at 46.) The

district court declined to consider Vaughan’s age, explaining that because he was “asking

me to look back retrospectively to all of these particular convictions and bank robberies

                                            - 10 -
. . . the fact that he’s now spent some time in prison and he’s older doesn’t bear

particularly on my determination.” (Id.)

       The district court also noted that both parties bore some responsibility for the

piecemeal nature of the prosecution, but that “to fashion a sentence based on the missteps

of the defendant or the Government at this juncture doesn’t make a lot of sense to me.”

(Id. at 48.) Instead, the court explained that taking into account the sentences already

imposed was necessary to meet the sentencing objectives of promoting respect for the

law and providing for just punishment. The district court granted Vaughan’s request for

a downward variance by allowing the 100-month sentences for each of the three counts at

issue to run concurrently with that portion of the Kansas sentence attributable to a like

offense, or the 78 months imposed for bank robbery. The district court also concluded

that the 100-month sentences could not run concurrently with the 120-month portion of

the Kansas sentence attributable to the discharge of a firearm during a crime of violence,

because that 120-month sentence was required by statute to run consecutive to the time

imposed for the crime of bank robbery. The end result of the sentence imposed by the

district court was that Vaughan would serve an additional twenty-two months

incarceration consecutive or added on to the prison time Vaughan was already serving for

the Kansas bank robbery. Vaughan has failed to demonstrate how this sentence

constitutes an abuse of discretion. In fact, Vaughan’s counsel admitted as much at

sentencing, when he stated, “If I’m understanding it correctly, the net result . . . would be

an additional 22-month sentence to the time that he’s currently serving. If I’m correct,

frankly I’m going to be hard pressed to argue that that’s not reasonable. We pled to three

                                            - 11 -
counts of armed bank robbery and we’re talking about an additional 22 months.” (Vol.

VII, Sentencing Hearing Transcript, at 29-30). Likewise, we are hard pressed to find any

abuse of discretion by the district court in the sentence imposed.

       Accordingly, for the reasons explained here, the district court is affirmed on all
claims.



                                                    ENTERED FOR THE COURT



                                                    William P. Johnson
                                                    District Judge




                                           - 12 -
