                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    May 28, 2015

                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 14-7060
 LANDRY SEAN LAKE,                            (D.C. No. 6:12-CR-00040-RAW-1)
                                                         (E.D. Okla.)
           Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, GORSUCH and McHUGH, Circuit Judges.



      Landry Sean Lake pleaded guilty to conspiracy to possess with intent to

distribute and to distribute heroin, in violation of 21 U.S.C. § 846. There was no

plea agreement. The district court originally sentenced Lake to 97 months’

imprisonment. Lake appealed his sentence, which we reversed. United States v.

Lake (Landry Lake I), 556 F. App’x 706 (10th Cir. 2014) (unpublished). After a

new sentencing hearing on remand, the district court sentenced Lake to 59

months’ imprisonment.


      *
        This order and judgment is not binding precedent, except under the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.
      Lake again appeals his sentence, arguing that it is both procedurally and

substantively unreasonable. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we affirm.

                                          I

      Landry Lake and his father and co-defendant, Ramon Lake, were both

addicted to opiates, including heroin. Landry lived in Arizona but had been

sending heroin to Ramon in Oklahoma, where Ramon lived and practiced

dentistry. Ramon received one of these packages from Landry on March 22,

2011. 1 A friend of Landry’s visited Ramon’s house that evening. Ramon gave

Landry’s friend some of the heroin that Landry had sent to him. The next day,

Landry’s friend was found dead from acute heroin toxicity.

      On June 12, 2012, Landry Lake and Ramon Lake were indicted. The

indictment charged them with one conspiracy count, alleging that the object of the

conspiracy was “[t]o knowingly and intentionally distribute and possess with

intent to distribute heroin, in violation of Title 21, United States Code, Sections

841(a)(1) and 841(b)(1)(C).” ROA Vol. I, at 14.

      Both Landry and Ramon pleaded guilty. Landry was originally sentenced

to 97 months’ imprisonment. Landry Lake I, 556 F. App’x at 707. Ramon was


      1
        We note that in two previous orders we mistakenly stated that this event
occurred on March 22, 2013. See United States v. Lake, 581 F. App’x 715, 716-
17 (10th Cir. 2014) (unpublished); United States v. Lake, 530 F. App’x 831, 831
(10th Cir. 2013) (unpublished). March 22, 2011, is the correct date.

                                          2
originally sentenced to 135 months’ imprisonment. United States v. Lake (Ramon

Lake I), 530 F. App’x 831, 832 (10th Cir. 2013) (unpublished). In Landry’s first

appeal, we explained:

      The comparatively lengthy sentences handed down by the district
      court were not based on any findings regarding the amount of drugs
      involved. Instead, in both men’s cases the base offense level for the
      charged crime was determined under U.S.S.G. § 2D1.1(a)(2), which
      provides that for certain drug crimes, including the one charged
      against the two defendants in this case, the offense level is 38 if “the
      offense of conviction establishes that death or serious bodily injury
      resulted from the use” of the controlled substance involved.

Landry Lake I, 556 F. App’x at 707 (quoting U.S.S.G. § 2D1.1(a)(2)). Both

defendants appealed their sentences.

      After Ramon had filed his appellate brief but before that appeal was

decided, the Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151

(2013), which held that any fact that increases the mandatory minimum sentence

for a crime is an “element” of the offense that must be found beyond a reasonable

doubt by the jury. Id. at 2155. The government interpreted Alleyne to apply not

only to facts that increased a statutory minimum sentence, but also to facts that

increased a recommended sentence under the guidelines. Ramon Lake I, 530 F.

App’x at 832. The government therefore conceded that Ramon was entitled to a

new sentencing because the district court had applied the death enhancement,

U.S.S.G. § 2D1.1(a)(2), based on a judicial finding that the heroin distribution in

question had resulted in death. Ramon Lake I, 530 F. App’x at 832. Based on


                                          3
this concession, we reversed Ramon’s sentence and remanded for new sentencing

proceedings. Id.

      Meanwhile, the government concluded its interpretation of Alleyne in

Ramon’s case was in error, and that it had conceded more than it should have. So

in Landry’s first appeal, the government changed its position and argued that

“Alleyne is limited to mandatory minimum sentences prescribed by statute and

does not apply to cases like [Landry Lake’s], nor should it have applied to that of

Ramon Lake.” Landry Lake I, 556 F. App’x at 708. Without addressing the

merits of the Alleyne issue, 2 we applied the law of the case doctrine, reversed

Landry’s sentence, and remanded for resentencing. Id. at 708-09.

      Landry was resentenced in July 2014. The parties agree that the district

court correctly calculated Landry’s guideline range to be 0 to 6 months, based on

an offense level of 7 and a criminal history category of I. However, the court

varied upward, imposing a sentence of 59 months’ imprisonment. The court

explained Landry’s sentence as follows:

      The sentence imposed should reflect the seriousness of the offense,
      promote respect for the law, and to [sic] provide just punishment for
      the offense. . . . This court finds that any sentence imposed within
      [the guideline range] would not be consistent with fulfilling the
      purposes of sentencing set forth in . . . Section 3553(a). An upward
      sentencing variance is warranted in this case. The defendant is a

      2
        We have since held that Alleyne applies only to facts that increase the
mandatory minimum sentence required by statute, and not to enhancements that
increase only the advisory range under the Sentencing Guidelines. See United
States v. Cassius, 777 F.3d 1093, 1097-98 (10th Cir. 2015).

                                          4
      long time heroin addict who shipped heroin to his father, who he also
      knew to be a heroin user. The defendant’s father provided some of
      the heroin to [Landry’s friend]. [Landry’s friend’s] use of the drugs,
      which were originally shipped by the defendant, resulted in or at
      least contributed to his death. The death of this acquaintance, an
      active investigation being underway and this defendant’s observation
      of the possible negative consequences of heroin use did not produce
      any notable change of his criminal behavior. . . . [T]his defendant
      continued to ship heroin to his father and co-conspirator, Ramon
      Lake. By continuing to participate in this illegal behavior, the
      defendant established that he does pose a risk to the public and that
      an adequate sentence of imprisonment is needed in this case to
      protect the public from further crimes . . . .

ROA Vol. II, at 108-09. The court further explained:

      In formulating the sentence imposed, this Court has considered the
      nature and circumstances of the offense as well as the characteristics
      and criminal history of the defendant. . . . The sentence prescribed
      by this court reflects the seriousness of the offense, promotes respect
      for the law and provides just punishment for the offense. This
      sentence affords adequate deterrence to criminal conduct, protects
      the public from further crimes of this defendant and provides
      correctional treatment for the defendant in the most effective manner.

Id. at 113-14. Finally, the court found that the sentence was “reasonable and

sufficient but not greater than necessary to meet the objectives set forth in . . .

Section 3553(a).” Id. at 114.

      This appeal followed.

                                           II

        When reviewing a sentence, we apply a “deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 52 (2007). Landry argues that his

sentence was both procedurally and substantively unreasonable. Procedural


                                           5
review addresses the “method by which a sentence was calculated.” United States

v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). Substantive review addresses “the

length of the resulting sentence.” Id.

1. Procedural Reasonableness

      Landry argues that the district court failed to adequately explain its

decision to impose a sentence more severe than the recommended one, which is

required by 18 U.S.C. § 3553(c). “Failure to provide proper explanation for the

chosen sentence is reversible procedural error.” United States v. Peña-

Hermosillo, 522 F.3d 1108, 1112 (10th Cir. 2008). However, the district court’s

duty to explain its sentence is not onerous. While the district court’s explanation

must satisfy us that the court “considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority,” Rita v.

United States, 551 U.S. 338, 356 (2007), the court has no duty “to expressly

weigh on the record each of the factors set out in § 3553(a),” United States v.

Sanchez-Juarez, 446 F.3d 1109, 1116 (10th Cir. 2006) (internal quotation marks

omitted).

       In the present case, the district court adequately explained Landry’s 59-

month sentence. The court offered several specific factors that it concluded

warranted an upward variance. Most importantly, the court found that Landry’s

distribution of heroin resulted in the death of one of his friends. The court also

found that Landry had continued to send heroin to his father even after his friend

                                          6
overdosed, which the court considered a sign of Landry’s dangerousness to the

public. And the court adequately linked these facts to the § 3553(a) factors,

stating that the variance was necessary to “protect the public from further crimes

of the defendant.” ROA Vol. II, at 109; see also 18 U.S.C. § 3553(a)(2)(C)

(noting the need for the sentence imposed “to protect the public from further

crimes of the defendant”). Finally, the district court later recited the § 3553(a)

factors and concluded that its sentence comported with those factors. We

therefore conclude that the district court did not abuse its discretion with respect

to its explanation of Landry’s sentence.

2. Substantive Reasonableness

      “A substantive challenge concerns the reasonableness of the sentence’s

length and focuses on the district court’s consideration of the § 3553(a) factors

and the sufficiency of the justifications used to support the sentence,” in light of

all the circumstances. United States v. Lente, 647 F.3d 1021, 1030 (10th Cir.

2011). Under § 3553(a), the sentencing court should consider “the nature of the

offense and characteristics of the defendant, as well as the need for the sentence

to reflect the seriousness of the crime, to provide adequate deterrence, to protect

the public, and to provide the defendant with needed training or treatment.”

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam); see

also Gall, 552 U.S. at 50 n.6. “In many cases there will be a range of possible

outcomes [that] the facts and law at issue can fairly support; rather than pick and

                                           7
choose among them ourselves, we will defer to the district court’s judgment so

long as it falls within the realm of these rationally available choices.” United

States v. Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011) (quotations and

alterations omitted).

      For sentences that fall within the recommended guidelines range, we apply

a presumption of reasonableness. Kristl, 437 F.3d at 1054. However, Landry’s

sentence was outside the properly calculated guidelines range, so we do not apply

the presumption. See id.

      Landry’s argument that his 59-month sentence is substantively

unreasonable focuses on the evidence he presented to the district court regarding

his post-offense rehabilitation. Landry presented evidence that he had completed

an inpatient substance abuse program, and that during the course of that

treatment, he secured a job and was a successful employee. Landry argues that

“based on [his] history and characteristics, his post offense rehabilitation, his

conduct while being incarcerated, and his potential to become a valuable member

of society, the sentence in this case cannot be found reasonable.” Aplt. Br. at 12.

But the district court was free to give these considerations less weight than the

considerations that supported a more severe sentence. United States v. Sanchez-

Leon, 764 F.3d 1248, 1267-68 (10th Cir. 2014).

      Finally, we note that Landry’s 59-month sentence is substantially more

lenient than the 97-month sentence originally imposed by the district court. It is

                                           8
also more lenient than his father’s 95-month sentence, which we affirmed. United

States v. Lake (Ramon Lake II), 581 F. App’x 715, 720-21 (10th Cir. 2014)

(unpublished).

      When considered in context and on the record presented, the district court

did not “exceed[] the bounds of permissible choice” in imposing a 59-month

sentence. United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)

(internal quotation marks omitted).

                                       III

      Because we conclude that Landry Lake’s 59-month sentence was neither

procedurally nor substantively unreasonable, we AFFIRM.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Chief Judge




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