                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                        June 20, 2013
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                       TENTH CIRCUIT


    UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                         No. 12-4059
        v.                                                    (D. Utah)
    BRETT DANNY SHUMWAY,                        (D.C. No. 2:10-CR-00926-TS-RTB-2)

               Defendant - Appellant.



                              ORDER AND JUDGMENT*


Before KELLY, GORSUCH, and BACHARACH, Circuit Judges.



        Mr. Brett Danny Shumway pleaded guilty to armed robbery of a credit

union and using, carrying, and brandishing a firearm during and in relation to a

crime of violence.     After accepting this plea, the district court sentenced Mr.

Shumway to prison for 292 months, followed by 5 years of supervised release. On

appeal, Mr. Shumway argues that his sentence is procedurally and substantively

unreasonable. Rejecting both arguments, we affirm.




*
        This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. But the order and judgment may be cited
for its persuasive value consistent with Fed. R. App. P. 32.1 and Tenth Cir. R. 32.1.
                  Mr. Shumway’s Crime, Conviction, and Sentence

      With Mr. Shumway’s help as the driver, his codefendant (Aldo Sanchez)

robbed a credit union. Following the robbery, Mr. Shumway pleaded guilty to the

robbery and gun charges. 1      With the plea, the district court classified Mr.

Shumway as a career offender, triggering an enhancement that raised the advisory

range under the United States Sentencing Guidelines to imprisonment for 292 to

365 months. 2

      Before imposing the sentence, the court stated that it had considered the

factors in 18 U.S.C. § 3553 and discussed Mr. Shumway’s criminal history, the

seriousness of the offense, and his attempt to minimize his involvement in the

crime. In addition, the court commented that Mr. Shumway had “no justification

for his conduct other than that he just decided to revert back to his old ways.” 3

      The court sentenced Mr. Shumway to the low end of the guideline range:

292 months, followed by 5 years of supervised release. His codefendant obtained

a shorter sentence, only 121 months.

      After announcing Mr. Shumway’s sentence, the district judge asked defense

counsel if she had any legal objections to the sentence. The attorney replied:

“Your Honor, I would make an objection at this time that the sentence imposed by

the court failed to consider all the 3553 factors.         And the career offender
1
      See 18 U.S.C. §§ 924(c), 2113(a) & (d) (2006).
2
      See U.S. Sentencing Guidelines Manual § 4B1.1 (2011).
3
      R. vol. 3, at 48.
                                          2
enhancement itself does not properly reflect the sentencing purposes of . . .

Section 3553 of the Sentencing Reform Act.” 4 Noting that “[t]hose objections

[were] certainly preserved,” the court declined to modify the sentence. 5

                               Procedural Reasonableness

      Mr. Shumway contends that his sentence is procedurally unreasonable under

18 U.S.C. § 3553(a)(6).        This provision states that a sentencing court should

consider certain factors, including “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.” 6 In Mr. Shumway’s view, the district court violated Section

3553(a)(6) by failing to explain the disparity between his sentence and Mr.

Sanchez’s. This argument should be rejected.

      The threshold question is whether Mr. Shumway preserved the issue for

appellate review. To do so, he “needed to alert the court that its explanation was

inadequate, which ordinarily would require an objection after the court had

rendered sentence.” 7 But after the district court announced the sentence, defense

counsel did not object to the adequacy of the court’s explanation. 8 By failing to



4
      R. vol. 3, at 131.
5
      R. vol. 3, at 131.
6
      18 U.S.C. § 3553(a)(6) (2006).
7
      United States v. Gantt, 679 F.3d 1240, 1247 (10th Cir. 2012).
8
      See R. vol. 3, at 131.
                                           3
object, defense counsel failed to preserve the contention for appellate review. 9

Because the contention was not preserved, we apply the plain-error standard. 10

       Under this standard, Mr. Shumway must show that the district court’s error

was plain, affected his substantial rights, and seriously affected “the fairness,

integrity, or public reputation of judicial proceedings. 11 Mr. Shumway has not

made the required showing.

       When the district court imposes a sentence within the guidelines, Section

3553 does not require a “particularized analysis” of the statutory factors. 12

Instead, the court can comply with Section 3553 by stating that it had considered

the statutory factors. 13

       In sentencing Mr. Shumway, the court referred to these factors and stated

that the criminal history justified the 292-month term. 14 This explanation did not

constitute plain error, as the defendant’s criminal history is pertinent under

Section 3553.




9
       United States v. Gantt, 679 F.3d 1240, 1247 (10th Cir. 2012).
10
       United States v. Mendoza, 543 F.3d 1186, 1195 (10th Cir. 2008).
11
      United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012) (citation
omitted).
12
       United States v. A.B., 529 F.3d 1275, 1289 (10th Cir. 2008).
13
       See United States v. Gantt, 679 F.3d 1240, 1247 (10th Cir. 2012).
14
       See R. vol. 3, at 131-32.
                                            4
       As Mr. Shumway argues, the sentencing factor in Section 3553(a)(6)

addresses “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 15 But the

court had no duty to discuss Section 3553(a)(6), 16 and this provision addresses

nationwide disparities rather than disparities among codefendants. 17             Thus, the

district court’s explanation did not constitute plain error, and we reject the

procedural challenge to Mr. Shumway’s sentence.

                              Substantive Reasonableness

       Mr. Shumway argues that his sentence is substantively unreasonable

because his prior convictions were at least eighteen years old and a much lighter

prison term would have sufficed to deter future crimes.             These arguments are

unconvincing.

       We review the substantive reasonableness of the district court’s sentence for

abuse of discretion. 18 In conducting this review, we give substantial deference to




15
       18 U.S.C. § 3553(a)(6) (2006).
16
       See United States v. A.B., 529 F.3d 1275, 1289 (10th Cir. 2008).
17
       See United States v. Damato, 672 F.3d 832, 848 (10th Cir. 2012) (stating that Section
3553(a)(6) refers to disparities nationwide among defendants with similar records and
guideline calculations rather than a comparison of sentences among defendants); United
States v. Ivory, 532 F.3d 1095, 1107 (10th Cir. 2008) (“§ 3553(a)(6) does not require the
sentencing court to compare the sentences of codefendants” (citation omitted)).
18
      Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Tindall, 519 F.3d 1057,
1065 (10th Cir. 2008).
                                             5
the district court in its selection of an appropriate sentence. 19 The district court

abuses its discretion only when its judgment is “‘arbitrary, capricious, whimsical,

or manifestly unreasonable.’” 20

      When a sentence falls “within the Guidelines’s career-offender range,” we

apply a “presumption of reasonableness.” 21          The defendant may rebut this

presumption by demonstrating that the sentence is unreasonable under the factors

in 18 U.S.C. § 3553. 22 We defer to the weight given by the district court on any of

the specific factors in Section 3553. 23

      The district court explained how it had weighed these factors, including the

need for the sentence imposed to reflect the seriousness of the offense, deter

further criminal conduct, and protect the public. 24 The court also considered the

nature of the offense and Mr. Shumway’s past criminal history. 25               Before

sentencing, defense counsel admitted that Mr. Shumway had “suggested” the




19
      United States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008).
20
       United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quoting United
States v. Byrne, 171 F.3d 1231, 1235-36 (10th Cir. 1999)).
21
      United States v. Pruitt, 502 F.3d 1154, 1158 (10th Cir. 2007).
22
      United States v Tindall, 519 F.3d 1057, 1066 (10th Cir. 2008).
23
      United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008).
24
      See R. vol. 3, at 126-28; see 18 U.S.C. § 3553(a)(2)(A)-(C) (2006).
25
      See R. vol. 3, at 126-28; see 18 U.S.C. § 3553(a)(1) (2006).
                                           6
robbery to the codefendant. 26 In addition, a probation officer (without objection

by defense counsel) stated that Mr. Shumway had given the name of the teller to

the codefendant. 27 The codefendant used this name during the robbery, which

frightened the teller. 28

       Ultimately, the judge chose a sentence at the low end of the guideline range.

Though Mr. Shumway’s prior convictions were arguably old, he had eight

qualifying felony convictions, one involving a controlled substance and seven

involving crimes of violence. 29 The district court could reasonably decline to give

decisive weight to the amount of time that had passed between crimes. 30 His

decision was not arbitrary, capricious, whimsical, or manifestly unreasonable.

Thus, we conclude that the court did not abuse its discretion and that Mr.

Shumway has not rebutted the presumption that his sentence was substantively

reasonable.
26
       R. vol. 1, at 205; see id. at 175.
27
       R. vol. 4, at 7; see id. at 31-35 (identifying defense counsel’s objections to the
presentence report).
28
       R. vol. 4, at 5; see id. at 31-35 (identifying defense counsel’s objections to the
presentence report).
29
       R, vol. 4, at 8, 13-17; see U.S. Sentencing Guidelines Manual § 481.1(a) (2011).
30
        In United States v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007), the district court
declined to apply the career-offender enhancement, reasoning in part that it would have
overstated the seriousness of the defendant’s criminal history because his last drug conviction
was eight years old at the time of the sentencing. See United States v. Garcia-Lara, 499 F.3d
at 1134, 1139. Even under the deferential abuse-of-discretion standard, we reversed because
the circumstances did not allow the district court to ignore the career-offender provision. Id.
at 1135-38, 1140-41.
                                              7
                                  Conclusion

      We reject the substantive and procedural challenges to the sentence. As a

result, we affirm.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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