                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 11, 2010
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-8099
          v.                                            (D. Wyoming)
 DILLON YELLOWBEAR,                            (D.C. No. 2:09-CR-126-CAB-1)

               Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before HENRY, PORFILIO and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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        This order and judgment is not binding precedent except under the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.
      This appeal challenges the procedural and substantive reasonableness of the

district court’s imposition of a 120-month sentence upon Dillon Yellowbear, after

his conviction by a jury for two counts of assault. Although the district court

judge who sentenced Mr. Yellowbear was not the trial judge who heard the trial

testimony, we reject Mr. Yellowbear’s contentions that the sentencing judge

plainly erred because he failed to consider 18 U.S.C. § 3553(a)’s sentencing

factors, and that it imposed a sentence that was unreasonably long.

                                I. BACKGROUND

      This case stems from an altercation between three enrolled members of the

Northern Arapahoe tribe in Wyoming. On May 4, 2009, Alfreda Monroe drove

with her husband, Gary Blackburn, Jr., and their two young children, to the Indian

Health Services Clinic on the Wind River Reservation near Riverton, Wyoming.

Mr. Blackburn waited in the car while Ms. Monroe went inside to pick up a

prescription. As Ms. Monroe was exiting the front door of the clinic, she

confronted Mary Headley, Mr. Yellowbear’s mother. The two were acquainted;

Mr. Yellowbear fathered a child out of wedlock with Ms. Monroe. Ms. Monroe

and Ms. Headley apparently exchanged derogatory comments with each other.

      After another confrontation inside the clinic between the two women, Ms.

Headley called her daughter and asked her daughter to come down to the clinic to

be with her as she exited the building. Shortly thereafter, Ms. Headley received a

telephone call from Mr. Yellowbear, who instructed his mother that he felt she

                                         -2-
was in danger and should leave the clinic. Mr. Yellowbear testified that he

received a call from his sister urging him to get to the Indian Health Services

Clinic right away because their mother needed him and it was urgent.

      Upon his arrival at the clinic, Mr. Yellowbear exited the truck with an air

rifle pellet gun and confronted Ms. Monroe next to her car in the parking lot,

while she was talking to Ms. Headley. Mr. Blackburn joined his wife outside

their car, while Mr. Yellowbear pointed the air rifle at him. Mr. Blackburn

wrestled the rifle free and the two began brawling. Mr. Yellowbear pulled a knife

and stabbed Mr. Blackburn three times. Mr. Yellowbear proceeded to shoot Ms.

Monroe with the air rifle and fled in his truck.

      A grand jury indicted Mr. Yellowbear with one count of assault resulting in

serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153, and two

counts of assault with a dangerous weapon with intent to do bodily harm, in

violation of 18 U.S.C. §§ 113(a)(3) and 1153. The case proceeded to trial, where

Mr. Yellowbear asserted self-defense. He stated that Mr. Blackburn had

instigated the fight by punching Mr. Yellowbear twice in the head. The fight

quickly escalated and Mr. Yellowbear was dazed and trying to hang on to Mr.

Blackburn. Mr. Yellowbear conceded that his self-defense theory did not apply to

shooting Ms. Monroe with his air rifle. He also testified that he called the

hospital because he was very concerned about Mr. Blackburn’s medical condition.



                                          -3-
      The jury deliberated for nearly two days. According to defense counsel,

four or five of the jurors were crying as they returned to the courtroom. The jury

acquitted Mr. Yellowbear on Count One (assault resulting in serious bodily injury

to Mr. Blackburn) and found him guilty on Counts Two and Three (assault with a

dangerous weapon as to Mr. Blackburn and Ms. Monroe).

      At the sentencing hearing, U.S. District Court Judge Alan B. Johnson

announced that he would be presiding instead of the trial court judge. Defense

counsel objected, arguing that the nature and circumstances of the offense were

dramatically revealed at trial. The jury deliberated for two days, came back

crying, and returned a split verdict. Defense counsel requested a postponement of

the sentencing hearing until there was further information regarding the trial court

judge’s ability to return to the bench for sentencing.

      The district court denied Mr. Yellowbear’s request for a continuance and

proceeded with sentencing. The court reasoned as follows:

      Well, the odd point that we’re in is I have been asked by Judge
      Brimmer to handle this matter today for him, and I certainly have no
      and have not and would not attempt to make any independent decision
      beyond what I have been asked to do.

      And I intend to proceed with the sentence as directed in this matter.
      I’m familiar with the case, having reviewed the Presentence
      Investigation Report, and believe if there were factors that the Judge
      wanted to be considered that he would have informed me of those
      factors - - of those matters.

Rec. vol. 3, at 386 (Sentencing Hr’g Tr. at 5)..


                                          -4-
       The district court then reviewed the sentencing guideline calculation, and

Mr. Yellowbear’s criminal and family history. The court determined that, based

on an offense level of 26 and a criminal history category VI, the guideline range

sentence was 120-150 months, stating that “[t]he minimum term must be served

by a sentence of imprisonment.” Id. at 390 (Sentencing Hr’g Tr. at 9).

      Defense counsel argued for a below guideline sentence, on the grounds that

a fair and just sentence under 18 U.S.C. § 3553(a) must take into consideration

the following: that Mr. Yellowbear confessed to the crime during a recorded

interview with the FBI, which was played for the jury; that there was a certain

heat of passion to the crime, with Mr. Yellowbear responding to a call that his

mother was in trouble; that he was assaulted by Mr. Blackburn as he attempted to

enter the clinic; and that the jury stayed out for two days and returned a split

verdict, with several jurors crying over the outcome. Defense counsel argued that

a sentence in the five to seven year range was warranted because of the unique

circumstances of this case. After testimony from Mr. Yellowbear and several

family members, the court imposed a 120-month sentence on both counts, to be

served concurrently. Mr. Yellowbear now appeals.

                                  II. DISCUSSION

      Mr. Yellowbear argues that the district court committed plain error when it

failed to consider § 3553(a)’s sentencing factors when it sentenced him, in part

because the court apparently thought the guidelines to be mandatory. He also

                                          -5-
argues that his sentence was greater than necessary and thus unreasonably long.

We reject both of his arguments.

A. Standard of Review

      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See Gall v. United States, 552 U.S.

38, 50 (2007); United States v. Smart, 518 F.3d 800, 802-03, 805 (10th Cir.

2008). Mr. Yellowbear’s arguments challenge the procedural and substantive

reasonableness of his sentence. “Reasonableness review is a two-step process

comprising a procedural and a substantive component.” United States v.

Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008) (citing Gall, 552 U.S. at 51).

A sentence is procedurally unreasonable if a district court improperly calculates

the applicable Guidelines range. Gall, 552 U.S. at 49; United States v. Cook, 550

F.3d 1292, 1295 (10th Cir. 2008), cert. denied, 129 S. Ct. 2819 (2009). We

review a district court’s legal conclusions regarding the Guidelines de novo and

its factual findings for clear error. United States v. Todd, 515 F.3d 1128, 1135

(10th Cir. 2008).

      “A challenge to the sufficiency of the § 3553(a) justifications relied on by

the district court implicates the substantive reasonableness of the resulting

sentence.” Smart, 518 F.3d at 804. The § 3553(a) sentencing factors include not

only “the nature of the offense,” but also the history and “characteristics of the

defendant, as well as the need for the sentence to reflect the seriousness of the

                                         -6-
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 18 U.S.C. § 3553(a).

They also include “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.”

18 U.S.C. § 3553(a)(6).

      A district court’s sentence is substantively unreasonable “only if the court

exceeded the bounds of permissible choice, given the facts and the applicable law

in the case at hand.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir.

2007) (quotation omitted). Such an abuse occurs “when it renders a judgment

that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United

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

      In reviewing the substantive reasonableness of a sentence, “[w]e may not

examine the weight a district court assigns to various § 3553(a) factors,” but must

“give due deference to the district court’s decision that the § 3553(a) factors, on a

whole, justify the [sentence].” Smart, 518 F.3d at 808 (internal quotation marks

and citations omitted). Ultimately, as Mr. Yellowbear suggests, the sentence must

be sufficient but not greater than necessary to comply with the statutory purposes

of the punishment. See 18 U.S.C. § 3553(a).

B. Analysis

      1. Mr. Yellowbear’s sentence was procedurally reasonable.

                                         -7-
      When a party fails to object contemporaneously to the district court's

sentencing procedure, as Mr. Yellowbear failed to do here, we “review procedural

reasonableness challenges for plain error.” United States v. Poe, 556 F.3d 1113,

1128 (10th Cir.), cert. denied, 130 S. Ct. 395 (2009). Under the plain error

doctrine, we will reverse the district court’s judgment only if the party shows (1)

an error; (2) that is plain; (3) that affects substantial rights; and (4) that “seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Morris, 562 F.3d 1131, 1133 (10th Cir. 2009) (internal quotation

marks omitted). “The plain error standard presents a heavy burden for an

appellant, one which is not often satisfied.” United States v. Romero, 491 F.3d

1173, 1178 (10th Cir. 2007).

      Mr. Yellowbear contends that a variety of factors contributed to the

procedurally unreasonable sentence. First he maintains that the sentencing judge,

who was not the trial judge, plainly erred because he treated the Guideline

advisory sentence as “presumptively reasonable.” Aplt’s Br. at 15. Specifically

the judge, in denying Mr. Yellowbear’s motion for a continuance, noted that

      I have been asked by [the trial judge] to handle this matter today for
      him, and I certainly have no and have not and would not attempt to
      make any independent decision beyond what I have been asked to do.

      And I intend to proceed with the sentence as directed in this matter.
      I’m familiar with the case, having reviewed the Presentence
      Investigation Report, and believe if there were factors that the Judge
      wanted to be considered that he would have informed me of those
      factors - - of those matters.

                                           -8-
Rec. vol. 3, at 386 (Sentencing Hr’g Tr. at 5) (emphasis added).

      Mr. Yellowbear argues that the sentencing judge’s absence from the trial

impaired the judge’s ability to weigh the trial testimony and its emotional impact

when the court imposed Mr. Yellowbear’s sentence. We note that Fed. R. Cr. P.

25(b) anticipates the occasion where a trial judge is unable to sentence a

defendant:

      (b) After a Verdict or Finding of Guilty.

             (1) In General. After a verdict or finding of guilty, any
             judge regularly sitting in or assigned to a court may
             complete the court’s duties if the judge who presided at
             trial cannot perform those duties because of absence,
             death, sickness, or other disability.

Fed. R. Cr. P. 25(b). The record is not clear why the trial court judge could not

perform his duties at sentencing, apart from the sentencing judge’s statement that

the trial judge was “unavailable” and would remain unavailable for an

undetermined amount of time. Rec. vol. 3, at 384 (Sentencing Hr’g Tr. at 3). The

sentencing judge indicated he reviewed the Presentence Investigation Report,

which set forth the offense and the critical evidence adduced at trial. “A

successor judge is given broad discretion in determining whether he properly can

perform his sentencing duties in a case upon which he did not preside at trial.”

United States v. Whitfield, 874 F.2d 591, 593 (8th Cir. 1989) (citing United States

v. Spinney, 795 F.2d 1410, 1413 (9th Cir. 1986); United States v. Bryant, 430

F.2d 237, 241 (8th Cir. 1970)). “A successor judge need only familiarize himself

                                         -9-
with the evidence and legal issues involved and exercise informed discretion in

imposing sentence.” Whitfield, 874 F.2d at 593. 1

      Next, Mr. Yellowbear suggests that the sentencing judge felt hamstrung by

the guidelines themselves. The district court also stated, in calculating Mr.

Yellowbear’s advisory guideline range, that: “Based on this calculation . . . the

guideline sentencing range . . . is 120 to 150 months. The minimum term must be


      1
           As the rule recognizes, post-trial reassignment to successor judges is
permissible; it also violates no constitutional right. United States ex rel Fields v.
Fitzpatrick, 548 F.2d 105, 107 (3d Cir. 1977) (“No other court has held that there
is such a right under the United States Constitution, although the precise issue has
seldom arisen. We do not recognize a constitutional right to be sentenced by
one’s trial judge in every case.”); see also United States v. Nelson, No. 98-2102,
1998 WL 658393, at *2 (10th Cir. Sept. 15, 1998) (rejecting defendant’s
contention that successor judge “lacked sufficient familiarity to impose
sentence”) (unpublished); Whitfield, 874 F.2d at 593 (noting no “requirement on
the sentencing judge” to “have access to the trial transcript at the time of
sentencing”); United States v. Todd-Murgas, 352 F. App’x 513, 516 (2d Cir.
2009) (where case reassigned for resentencing, “the record indicates that [the]
Chief Judge . . . carefully reviewed all materials relevant to the prior sentencing
in this case,” and “[i]n such circumstances, we will not assume from a failure
explicitly to reference statements made by the original sentencing judge
indicating an inclination to show greater leniency or severity but for the
Guidelines mandates that the court overlooked such materials”) (internal
quotation marks omitted).
       We do note some concern, however, that there is no indication as to why
the trial judge was unavailable, and the record indicates no notice was given to
the parties, neither of which appears to be in strict compliance with Fed. R. Cr. P.
25. However, any error resulting from the late unexplained substitution would be
harmless, as Mr. Yellowbear suffered no prejudice from the substitution, nor does
he cite Rule 25. See United States v. Santos, 588 F.2d 1300, 1303-04 (9th Cir.
1979) (holding that failure to strictly comply with Rule 25 was harmless error and
noting that “[i]f a substitution of judges does become necessary, the ‘new’ judge
should certify that he has familiarized himself with the record of the trial”).


                                        -10-
satisfied by a sentence of imprisonment.” Rec. vol. 3, at 390 (Sentencing Hr’g

Tr. at 9).

         Mr. Yellowbear argues that the sentencing judge was unduly influenced by

what the trial judge told him and felt confined by the guidelines, because the

sentencing judge noted that he “believe[d]” there were no sentencing factors for

him to consider. Id. at 386 (Sentencing Hr’g Tr. at 5). In addition, the sentencing

judge’s statement regarding the mandatory nature of the “minimum term” of

imprisonment suggests he did not understand his discretion in sentencing Mr.

Yellowbear. See Rita v. United States, 551 U.S. 338, 356 (2007) (holding that the

sentencing court must provide some basis for this Court to conclude “[it] has

considered the parties' arguments and has a reasoned basis for exercising [its]

own legal decisionmaking authority”). As a result, he argues, the sentencing

judge failed to properly consider the § 3553(a) sentencing factors when it

sentenced Mr. Yellowbear to 120 months’ imprisonment, which amounts to plain

error.

         We disagree with Mr. Yellowbear’s reasoning. The sentencing judge

clearly reviewed the record in the case and discussed it with the trial judge. At

the sentencing hearing, the district court also considered Mr. Yellowbear’s

personal characteristics, including his mental and emotional health, his substance

abuse issues, and his educational background.



                                         -11-
      The court also heard and weighed defense counsel’s argument for a

downward variance. Counsel suggested that under § 3553(a)(1), the court should

consider the seriousness of the offense here – in the heat of passion, Mr.

Yellowbear came to the protection of his mother and Mr. Blackburn assaulted

him. Counsel also noted Mr. Yellowbear’s history of substance abuse and need

for “serious counseling.” Rec. vol. 3, at 395 (Sentencing Hr’g Tr. at 14). In

rejecting these arguments, the court considered these arguments and also

recognized the difficulty the jury had in making its decision. 2

      A sentencing court must “state in open court the reasons for its imposition

of the particular sentence,” 18 U.S.C. § 3553(c), but when the sentence is within a


      2
         We acknowledge that the sentencing judge’s statement that “the
minimum term must be satisfied by a sentence of imprisonment,” when read in
isolation, might suggest the judge believe the guidelines to require a minimum
sentence. Our review of the record indicates that the sentencing judge was likely
referring to USSG § 5C1.1(f), which states that “[i]f the applicable guideline
range is in Zone D of the Sentencing Table, the minimum term shall be satisfied
by a sentence of imprisonment.” USSG § 5C1.1(f); Rec. vol. 2 at 19 (Presentence
Investigation Report) (“Because the guideline range is in Zone D of the
Sentencing Table, the minimum term must be satisfied by a sentence of
imprisonment.”). Thus a guideline range within Zone D requires the entire term
to be served in prison, whereas “[a] Zone C sentence may be satisfied by serving
half of the imposed term in community confinement or home detention. U.S.S.G.
§ 5C1.1(d)(2).” United States v. Miller, 38 F. App’x 517, 519 (10th Cir. 2002);
United States v. Wilkinson, 590 F.3d 259, 264 (4th Cir. 2010) (“[T]he PSR . . .
stated that because the applicable advisory Guidelines sentencing range was in
Zone D of the Sentencing Table, Wilkinson was actually ineligible for
probation.”). Our review of the record indicates that the sentencing judge was
relying on the Presentence Investigation Report, and, as stated, was well aware of
his discretion and of the advisory nature of the guidelines.


                                         -12-
properly calculated guidelines range, the court need provide only a “general

statement noting the appropriate guideline range and how it was calculated.”

United States v. Ruiz-Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007) (quotation

omitted). Although the sentencing judge here did not quote the § 3553(a) factors,

nor did it state on the record that it considered the § 3553(a) factors, which is

certainly the preferably route, there is no doubt the judge did precisely what is

required: he considered the nature and circumstances of the offense, Mr.

Yellowbear’s history and characteristics, the need for the sentence, and the need

for Mr. Yellowbear to obtain educational, correctional and medical treatment.

See United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir. 2008) (“[A]

district court need not ‘march through § 3553(a)’s sentencing factors,’ nor do we

‘demand that the district court recite any magic words to show that it fulfilled its

responsibility to be mindful of the factors that Congress has instructed it to

consider.’”) (quoting United States v. Rines, 419 F.3d 1104, 1107 (10th Cir.

2005)). Because the sentencing judge considered the § 3553 factors, there is no

plain error here. See Ruiz-Terrazas, 477 F.3d at 1201 (“Section 3553(a) imposes

on the district court a duty to ‘consider’ a variety of important sentencing

considerations. But it nowhere imposes on the court a duty to address those

factors on the record . . . .”). The sentencing judge’s explanation for the sentence

imposed, in the context of a properly calculated guidelines range, satisfied the

court's obligation to consider and apply the § 3553(a) sentencing factors.

                                         -13-
      2. Mr. Yellowbear’s sentence was substantively reasonable.

      Mr. Yellowbear next argues that his 120-month sentence is substantively

unreasonable because the district court failed to heed § 3553(a)’s mandate that a

sentence be “sufficient, but not greater than necessary,” to comply with the

statutory purpose of punishment, and thus his resulting sentence was too long. In

making this argument, he claims that his actions were motivated by his desire to

aid his mother and that he acted in self-defense. He argues that his 120-month

punishment does not reflect that nature and circumstances of his crime. We find

these arguments similarly unavailing.

      While the district court must employ the “sufficient, but not greater than

necessary,” parsimony principle in crafting a sentence, we review the sentence

only for reasonableness. See Rita v. United States, 551 U.S. at 350-51); United

States v. Martinez-Barragan, 545 F.3d 894, 904 (10th Cir. 2008). Because we

have held that Mr. Yellowbear’s sentence was properly calculated under the

Guidelines, we presume it to be reasonable. Kristl, 437 F.3d at 1054. Even

though, by presuming reasonableness, we give significant deference to the district

court’s decision, a district court must still apply the § 3553(a) sentencing factors.

See Gall, 552 U.S. at 48-49. Thus, in order to rebut this presumption, Mr.

Yellowbear must show that in light of the § 3553(a) factors, the sentence was

unreasonable. Kristl, 437 F.3d at 1055.




                                          -14-
      Although the sentencing court did not specifically recite the § 3553(a)

factors, as we have noted above, the court clearly considered Mr. Yellowbear’s

individual circumstances, which indicates the court tailored the sentence to him.

To be sure, the court was concerned with providing Mr. Yellowbear substance

abuse and medical treatment, see Rec. vol. 3, at 390 (Sentencing Hr’g Tr. at 9),

and the court also aimed to ensure that the sentence reflected the gravity of the

offenses, deterred recidivism, and protected the public from any potential further

criminal activity. See id. at 405-06 (Sentencing Hr’g Tr. at 24-25). Finally, Mr.

Yellowbear’s criminal history category of VI, which is, as the sentencing court

noted, “about as high as you can go,” id. at 389 (Sentencing Hr’g Tr. at 8),

undermines his argument that a lower sentence would be effective in complying

with the statutory purposes of sentencing. Mr. Yellowbear is unable to rebut the

presumption of reasonableness that attaches to his sentence. Accordingly, we

hold his sentence to be substantively reasonable.

                                III. CONCLUSION

      Accordingly, we AFFIRM Mr. Yellowbear’s sentence.

                                 Entered for the Court,



                                 Robert H. Henry
                                 Circuit Judge




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