                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 9, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-8050
                                              (D.C. No. 1:09-CR-00226-WFD-1)
    FELTON KENNETH HARTLEY,                               (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and TACHA, Circuit Judges.


         Felton Kenneth Hartley appeals his 48-month sentence for being a felon in

possession of a firearm. See 18 U.S.C. § 922(g)(1). Mr. Hartley was indicted

following a visit to Yellowstone National Park, where he and several companions

became the subject of a noise complaint. Park rangers responded to the complaint

and, after obtaining permission, searched a tent and Mr. Hartley’s truck. Inside



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
the truck, rangers discovered marijuana, and inside the tent, they recovered a

20-gauge shotgun wrapped in plastic and duct tape.

      Mr. Hartley pleaded guilty. His presentence report (PSR) detailed

numerous prior offenses spanning two decades, including battery, destruction of

property, possession of cocaine, conspiracy, contempt of court, disorderly

conduct, reckless driving, and driving under the influence, among other

convictions. Based on a total offense level of 12 and a criminal history category

of VI, the PSR calculated Mr. Hartley’s applicable sentence range to be 30 to 37

months in prison. The district court rejected this range as inappropriate, however,

and imposed an 11-month upward variance to sentence Mr. Hartley to 48 months

in prison. It is this variance that Mr. Hartley challenges as substantively

unreasonable.

      We review the district court’s imposition of an upward variance for

substantive reasonableness under the abuse-of-discretion standard. United States

v. Bullcoming, 579 F.3d 1200, 1206 (10th Cir. 2009). Substantive reasonableness

focuses on the length of the sentence and whether it is “reasonable given all the

circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”

United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quotation

omitted). The district court enjoys broad discretion under this standard, “which

it abuses only if it renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable.” Bullcoming, 579 F.3d at 1207 (quotation omitted).

                                          -2-
      The district court justified the upward variance in part by explaining that

Mr. Hartley was arrested while serving three separate terms of probation:

      I make my judgments about this defendant based on his history, his
      criminal history; and what’s most telling is: On the date of this
      particular offense, he was under three probationary sentences. He
      was honoring none of them. A better example of lawlessness has not
      recently been seen by this Court.

R. Vol. 3 at 47-48. In rendering this explanation, the court demonstrated it

properly considered Mr. Hartley’s complete disregard for his probationary terms.

See 18 U.S.C. § 3553(a)(1). But the court also indicated its intent to promote

respect for the law and deter future criminal conduct given Mr. Hartley’s

demonstrated inclination toward lawlessness:

      To sentence [Mr. Hartley] within the guideline range doesn’t send
      the appropriate message. A sentence outside the guideline range will
      hopefully make this defendant attentive to the order of this Court
      better than he has been to three other judges who’ve had the
      misfortune of dealing with him and to alert him to the fact that I will
      be intolerant of any deviant behavior in violation of the terms of
      supervised release while he is under the supervision of this Court.

      A sentence of 48 months achieves the purposes of sentencing, and
      hopefully it will deter this defendant from future similar criminal
      conduct, most especially the possession of a firearm.

R. Vol. 3 at 48. Nothing in these comments suggests the court abused its

discretion in imposing the upward variance.

      Nevertheless, Mr. Hartley claims the variance was unreasonable because

the court double-counted his probation terms. He contends the probationary

sentences already were captured in the PSR’s criminal history category and

                                         -3-
reflected in the calculated guideline range. We have held, however, that “so long

as [the court] articulates specifically the reasons that this particular defendant’s

situation is different from the ordinary situation covered by the guidelines,” there

is no abuse of discretion in considering facts “already accounted for in the

advisory Guidelines range.” United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1222-23 (10th Cir. 2008) (quotation omitted). As indicated, the court

underscored the significance of Mr. Hartley’s arrest while serving three different

probationary terms. And recognizing that these multiple probation terms

distinguished Mr. Hartley, who incurred the same number of criminal history

points as if he had only one probation violation, see USSG § 4A1.1(d), the court

remarked:

      [T]he problem I have with [Mr. Hartley] is: Here’s a guy who’s on
      three probationary sentences at the time he commits this offense. I
      mean, what – am I supposed to treat him as the run-of-the-mill fellow
      in the same history category? Three probationary sentences. Also
      one of them is contempt of court. That’s kind of interesting. But –
      that always gets a judge’s attention. So I’m supposed to stay in the
      guidelines under those circumstances?

R. Vol. 3 at 41. These comments, coupled with the court’s previously discussed

explanation, adequately sustained the variance. See Alapizco-Valenzuela,

546 F.3d at 1223 (“[The] explanation need not be overly detailed.” (quotation

omitted)).

      Finally, Mr. Hartley contends the sentence overstated the seriousness of his

offense. We disagree. Mr. Hartley pleaded guilty to being a felon in possession

                                          -4-
of a firearm. The district court was charged with formulating a sentence that

accounted for the seriousness of that offense, as well as other § 3553(a) factors.

“[I]n many cases there will be a range of possible outcomes the facts and law at

issue can fairly support; rather than pick and 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. McComb, 519 F.3d 1049,

1053 (10th Cir. 2007). Looking at the sentence imposed, and mindful of the

§ 3553(a) factors, we see nothing that suggests the court deviated from the realm

of rationally available choices. Mr. Hartley asserts the manner in which he

possessed the firearm should have been considered a mitigating factor because

there are more egregious cases than his. But even if we were to view his manner

of possession as relatively innocuous—which we do not—this was but one of

several considerations in the district court’s calculus. See Gall v. United States,

552 U.S. 38, 49-50 & n.6 (2007). Given all the circumstances of Mr. Hartley’s

case, the district court’s decision to vary upward and impose a 48-month sentence

was substantively reasonable.

      Accordingly, the judgment of the district court is AFFIRMED.


                                                      Entered for the Court


                                                      Stephen H. Anderson
                                                      Circuit Judge


                                          -5-
