                                                                               FILED
                                                                   United States Court of Appeals
                                       PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        May 22, 2020

                                                                       Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                          Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-2041

 JORDAN SANDOVAL,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 1:18-CR-01109-WJ-1)
                       _________________________________

John V. Butcher, Assistant Federal Public Defender, Office of the Federal Public
Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for
Appellant.

Nicholas J. Ganjei, Assistant United States Attorney (John C. Anderson, United States
Attorney, and Dustin C. Segovia, Assistant United States Attorney, on the brief), Office
of the United States Attorney for the District of New Mexico, Las Cruces, New Mexico,
appearing for Appellee.
                         _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

BRISCOE, Circuit Judge.
                     _________________________________

      Defendant-Appellant Jordan Sandoval (Sandoval) pleaded guilty to committing an

assault in Indian Country which resulted in serious bodily injury. See 18 U.S.C. §§ 1153
and 113(a)(6). He was sentenced to a prison term of 27 months. Sandoval appeals the

district court’s sentence as disproportionate by noting crimes either committed with

greater intent or causing death are afforded only slightly higher sentencing ranges under

the Guidelines. At bottom, he argues his sentence is substantively unreasonable.

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

                                              I
       Sandoval, after having consumed the equivalent of more than seven beers, was

speeding in his vehicle on the San Felipe Indian Reservation. ROA Vol. II at 3–4. He

struck Jane Doe’s vehicle from behind, sending it flipping and spinning towards a ditch.

Id. Jane Doe’s pinky finger was severed in the crash. Id. Fortunately, the other passengers

in the car, Jane Doe’s young daughter and teenage brother, did not sustain serious

injuries. Id.

       Sandoval was charged with assault resulting in serious bodily injury in violation of

18 U.S.C. §§ 1153 and 113(a)(6).1 Id. at 1. He pleaded guilty without a plea agreement.

The Presentence Investigation Report (PSR) calculated his base offense level at 14. Id.

at 5. After adding a seven-level enhancement for Jane Doe’s permanent injury, the

adjusted offense level was 21. Id. Sandoval received a three-level reduction for

acceptance of responsibility, resulting in a total offense level of 18. Id. at 6. Sandoval had

no previous convictions that yielded criminal history points, although he did have two


       1
        Relevant to Sandoval’s briefing, § 113(a)(6) is the federal statute that covers
what state law often terms driving under (or while under) the influence, or DWI. See,
e.g., N.M.S.A. § 66-8-101 (imposing a basic sentence of three years’ imprisonment for
“great bodily harm” caused by a vehicle, as a third-degree felony).
                                              2
tribal court convictions, both of which related to the consumption of alcohol. Id. at 6–7.

The district court adopted the proposed factual findings and Guidelines calculations in the

PSR, concluding the advisory Guidelines range was 27 to 33 months. ROA Vol. III

at 18–19.

       Sandoval requested a downward variance,2 asking for a sentence of one year and a

day. Sandoval argued, as he does on appeal, that the variance was appropriate because the

Guideline provision for aggravated assault, § 2A2.2, was not intended to cover reckless

conduct, which should be punished less severely than intentional conduct. ROA Vol. I

at 8–19. Sandoval also argued his sentence should be reduced because the offense level

applied was only one level below where it would have been had Sandoval killed one of

the occupants of the Doe vehicle. Id.

       The district court rejected Sandoval’s arguments. In particular, the district court

noted that “on the involuntary manslaughter [G]uidelines, I thought the [Sentencing]

Commission was woefully inadequate in terms of the advisory sentencing Guideline

range for those particular offenses.” ROA Vol. III at 19. The district court went on to say,

“[b]ut we’re not dealing here with an involuntary manslaughter. We are dealing with

conduct that was extremely reckless. . . . I’ll find a sentence that is sufficient, but not




       2
         We note that Sandoval also requested a downward departure in his sentencing
memorandum. ROA Vol. I at 8. But “[w]e have no jurisdiction to review a district court’s
discretionary decision to deny a motion for downward departure on the ground that a
defendant’s circumstances do not warrant the departure.” United States v. Shuck, 713
F.3d 563, 570 (10th Cir. 2013) (internal citations and quotations omitted). Thus, we do
not review the district court’s decision not to depart from the Guidelines.
                                               3
greater than necessary to satisfy the goals of sentencing is a commitment to the custody

of the Bureau of Prisons on the low end of the [G]uidelines at 27 months.” Id. at 19–20.

                                               II
       Sandoval challenges his sentence as substantively3 unreasonable. His arguments

are predicated purely on policy disputes with the Guidelines.4 First, he argues that the

applied Guideline, § 2A2.2, does not adequately reduce sentences when the assault is

committed recklessly; and that, because his adjusted offense level is only one level below

the base offense level for involuntary manslaughter involving the reckless operation of a

means of transportation, it is disproportionately high.

       “We review the substantive reasonableness of a sentence for abuse of discretion.”

United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013) (citing Gall v. United

States, 552 U.S. 38, 51 (2007)). “[W]e will find an abuse of discretion only if the district

court was arbitrary, capricious, whimsical, or manifestly unreasonable when it weighed

the permissible § 3553(a) factors.” United States v. Craig, 808 F.3d 1249, 1261 (10th

Cir. 2015) (internal citations and quotations omitted). “In our circuit, ‘a within-guideline-

range sentence that the district court properly calculated . . . is entitled to a rebuttable

presumption of reasonableness’ on appeal.” United States v. Wireman, 849 F.3d 956, 964



       Sandoval does not argue his sentence was improperly calculated or otherwise
       3

procedurally deficient. See Aplt.’s Br. at 4 n.3.
       4
        In United States v. Yazzie, 704 F. App’x 767 (10th Cir. 2017), we addressed and
rejected policy arguments which are almost identical to those raised here. We cite Yazzie
not as binding precedent, but only for its persuasive value. United States v. Engles, 779
F.3d 1161, 1162 n.1 (10th Cir. 2015) (citing 151 F.R.D. 470 (10th Cir. 1993) (containing
General Order of November 29, 1993) and 10th Cir. R. 32.1 (2015)).
                                               4
(10th Cir. 2017) (quoting United States v. Grigsby, 749 F.3d 908, 909 (10th Cir. 2014)).

“[T]his presumption of reasonableness holds true even if the Guideline at issue arguably

contains serious flaws or otherwise lacks an empirical basis.” Id. (internal quotations and

citations omitted, emphasis in original).5

        A.    Section 2A2.2’s Lack of Adjustment for Reckless Instead of Intentional
              Crimes is Not Disproportionate

        Sandoval argues that his sentence is disproportionate, and thus manifestly

unreasonable, because § 2A2.2 does not distinguish between intentional and reckless

conduct. As a broad statement, Sandoval is generally correct that a criminal defendant’s

mental state is often relevant when determining his punishment. But that general

statement is not enough for us to conclude that the district court abused its discretion

here.

        First, throughout 18 U.S.C. § 113(a), statutory maximums are adjusted based on a

variety of factors: the defendant’s mental state, compare § 113(a)(3) (assault with a


        5
         We note that when we reference this rebuttable presumption, it has no
“independent legal effect.” Rita v. United States, 551 U.S. 338, 350 (2007). Rather, it
“simply recognizes the real-world circumstance that when the judge’s discretionary
decision accords with the Commission’s view of the appropriate application of § 3553(a)
in the mine run of cases, it is probable that the sentence is reasonable.” Id. at 350–51. We
note that, even after Rita, not all circuits use the language “presumption of
reasonableness” to describe the review accorded a district court’s within-Guidelines
sentence. See, e.g., United States v. Carty, 520 F.3d 984, 993–94 (9th Cir. 2008). Based
on Rita’s language, we agree with the Ninth Circuit that the difference “appears more
linguistic than practical,” as this appellate-only presumption “does not shift the burden of
persuasion or proof.” Id. Instead, when we speak of the “presumption of reasonableness”
of a within-Guidelines sentence, we are only aligning with the Supreme Court’s directive
that “the Guidelines should be the starting point and the initial benchmark” in sentencing
and not that the resulting within-Guidelines sentence is somehow shielded from scrutiny
on appellate review. Gall, 552 U.S. at 49; see also Grigsby, 749 F.3d at 909.
                                              5
dangerous weapon with intent to do bodily harm), with § 113(a)(6) (assault resulting in

serious bodily harm), but also the means used, § 113(a)(4) (assault by striking, beating or

wounding); and even the relationship of the victim to the defendant, § 113(a)(8) (assault

of a spouse, intimate partner, or dating partner). Thus, although the statute and its

maximum penalties do take mental state into account, other criteria also drive the relevant

penalties.

       Second, the Guidelines track these statutory maximums: Violations of § 113(a)(1)

are punishable by a maximum of twenty years in prison and governed by Guideline

§ 2A2.1, applying a base offense level of 33. Violations of §§ 113(a)(2), (3), (6), and (8)

are punishable by a maximum of ten years in prison; Guideline § 2A2.2, with a base

offense level of 14, applies to these crimes. In contrast, §§ 113(a)(4), (5), and (7),

punishable by less than 10 years in prison, are governed by Guideline § 2A2.3, with a

base offense level of 7. Thus, Sandoval’s argument that § 2A2.2 does not account for

mental state ignores how the statute differentiates based on a defendant’s mental state as

well as other criteria, and how the Guidelines reflect that differentiation.

       Additionally, the Sentencing Commission itself had an opportunity to consider

Sandoval’s argument, and presumably rejected it. Sandoval partially bases his argument

on the interaction between United States v. Zunie, 444 F.3d 1230, 1235 (10th Cir. 2006)

and § 2A2.2. Zunie held, as other circuits had, that a conviction for assault under

18 U.S.C. § 113(a)(6) resulting in serious bodily injury can be based on reckless as well

as intentional conduct. Id. Sandoval argues that, considering both the conduct § 2A2.2

covers and the fact that Zunie was decided after § 2A2.2 was originally enacted, it was

                                              6
manifestly unreasonable for the district court to conclude reckless assault was within the

“heartland” of conduct covered by § 2A2.2. As a result, Sandoval argues, the district

court should have granted his request for a downward variance.

       But the Commission amended the base offense level for § 2A2.2 in 2004, as part

of Amendment 663. U.S.S.G. App. C, Vol. III, at 11 (discussing Amendment 663).

Although Zunie had not yet been decided, other circuits had held that § 113(a)(6) covered

reckless conduct like that at issue here. See Zunie, 444 F.3d at 1235 (discussing United

States v. Ashley, 255 F.3d 907, 911 (8th Cir. 2001) and United States v. Loera, 923 F.2d

725, 730 (9th Cir. 1991)). That the Amendment did not adjust § 2A2.2 to account for

reckless rather than intentional conduct undermines Sandoval’s argument that § 2A2.2

was not intended to cover reckless conduct.

       B.     The Disparity Between Involuntary Manslaughter and Assault
              Resulting in Serious Bodily Injury Does Not Support Reducing
              Sandoval’s Sentence

       If Sandoval had killed one of the vehicle’s occupants, he would have been

prosecuted under 18 U.S.C. § 1112 and Guideline § 2A1.4(a)(2)(B) would have applied.

The base offense level in that case would have been 22; Sandoval’s adjusted offense level

was 21. Sandoval argues that a one-level difference between severing someone’s little

finger and killing them is not proportional. While Sandoval’s argument has some

persuasive value, we are not convinced the district court abused its discretion in declining

to vary from the Guidelines range on that basis.

       First, as the district court observed at sentencing, it can just as easily be argued

that the base offense level established by the Sentencing Commission for involuntary

                                              7
manslaughter offenses involving reckless operations of a means of transportation is

inadequate and should be raised. See ROA Vol. III at 19. Sandoval responds that, because

involuntary manslaughter expressly considers “means of transportation,” sentences under

that provision represent the Commission’s intent as regards DWI crimes. Thus, according

to Sandoval, in order to consistently sentence for DWI crimes, a district court should

lower sentences for DWIs arising under the aggravated assault provision, which does not

have specific language to address such crimes. But Sandoval’s argument is again

undercut by Amendment 663. The Commission noted, in enacting Amendment 663 and

lowering the base offense level of both involuntary manslaughter and aggravated assault,

that it was not intending to benefit those who seriously injure their victims. U.S.S.G.

App. C, Vol. III, at 12 (“To ensure that individuals who cause bodily injury to victims do

not benefit from this decrease in the base offense level, the specific offense

characteristics addressing degrees of bodily injury each were increased by one level.”).

       Second, Sandoval is not making a true one-to-one comparison: the base offense

level for his crime is 14, not 21. His offense level was increased by seven because Jane

Doe suffered a permanent injury. The Guidelines do not differentiate among crimes based

on the severity of the permanent injury caused; the same adjusted offense level would

apply if Jane Doe had lost her entire hand, or her leg, or an eye. When considering those

injuries, as a policy matter, the difference in base offense levels does not appear nearly as

disproportionate. Perhaps the district court could have granted a downward variance

because of the nature of the permanent injury but, given that the district court found

Sandoval’s conduct “extremely reckless,” an upward variance might have been

                                              8
appropriate as well. See United States v. Lente, 759 F.3d 1149, 1166 (10th Cir. 2014)

(affirming the district court’s upward variance, in part relying on the defendant’s

“extremely reckless” behavior); United States v. Pettigrew, 468 F.3d 626, 641 (10th Cir.

2006) (“[W]e cannot say that the District Court abused its discretion in concluding that

Mr. Pettigrew acted excessively recklessly or in departing upward two offense levels

based on that conduct.”). Thus, we cannot say the district court abused its discretion in

declining to impose a lower sentence because of the nature of Jane Doe’s permanent

injury.

          Neither of Sandoval’s policy arguments establish that the district court abused its

sentencing discretion. Sandoval cites multiple cases noting that the district court may, in

its discretion, grant a downward variance from the Guidelines, perhaps even when only

motivated by a policy disagreement with them. See, e.g., United States v. Friedman, 554

F.3d 1301, 1311 n.13 (10th Cir. 2009) (discussing the flexibility Kimbrough v. United

States, 552 U.S. 85, 91 (2007) accorded district courts to adjust crack as compared to

powder cocaine Guidelines). But Sandoval has not cited any case where a district court

was held to have abused its discretion by sentencing within the Guidelines when it did

not have a policy disagreement with them. To the contrary, a district court is free to

“conclude in its individualized judgment that any given Guideline is reasonable and

should be given considerable weight.” Wireman, 849 F.3d at 964 (internal quotations

omitted) (emphasis in original); see also United States v. Morrison, 771 F.3d 687, 693

(10th Cir. 2014) (“district courts are not obligated to vary from . . . Guidelines on policy

grounds if they do not have, in fact, a policy disagreement with them.”) (internal citations

                                                9
and quotations omitted, addressing policy grounds in the context of sentencing for child

pornography).

      The district court carefully considered Sandoval’s arguments before sentencing.

We cannot conclude that the district court abused its discretion. The judgment of the

district court is AFFIRMED.




                                            10
