                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 31, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,
               Plaintiff–Appellee,                       No. 06-1313
          v.                                       (Case No. 06-cr-31-PSF)
 SYDESSAH NYESSAH LEW IS,                                  (D . Colo.)
               Defendant–Appellant.



                           OR D ER AND JUDGM ENT *


Before M U RPH Y, M cKA Y, and M cCO NNELL, Circuit Judges.


      Defendant pled guilty to making false claims against the United States in

violation of 18 U.S.C. § 287. Based on a Guidelines range of six to twelve

months, the district court sentenced Defendant to five months of incarceration and

five months of home detention with electronic monitoring. 1 On appeal, Defendant

argues that her sentence is unreasonable because it does not adequately account

for her family circumstances.



      *
        This order and judgment is not binding precedent, except under the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.
      1
       Because the term of home detention substitutes for an equal term of
imprisonment, the total sentence imposed— ten months— is within the Guidelines
range. See U.S.S.G. §§ 5C1.1(d), 5F1.2.
      Defendant argues that she should not have received a sentence of

incarceration because she is the single parent of two school-aged children, her

husband was recently murdered, and she has no family members w ho are mentally

and physically capable of caring for her children. According to the presentence

report prepared for the district court, Defendant expected that her two children

would be cared for by her mother. However, at the sentencing hearing Defendant

requested a sentence with no prison time, telling the judge that she didn’t have

anyone to care for her children because she “just found out” that her mother was

using drugs. (R. Vol. II at 8.) The court rejected her request, stating: “I am

concerned about her family situation, as she has outlined it, but I don’t see that as

a basis for avoiding a prison sentence under these circumstances.” (Id. at 13.)

      As an initial matter, it is important to clarify that this appeal is not about

the district court’s decision not to grant Defendant’s request for a downward

departure. 2 Rather, Defendant simply appeals the reasonableness of the sentence

imposed. Thus, the cases cited by both parties are relevant only to the extent that

they inform our review of this issue.

      In reviewing a sentence for reasonableness, we consider both the method by



      2
         Even if this issue had been raised by Defendant, we would not review the
court’s decision for an abuse of discretion as the government suggests. W hile w e
review for abuse of discretion a district court’s decision to grant an upward or
downward departure, United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir.
2006), a court’s discretionary refusal to grant a departure is not review able in this
circuit, United States v. Chavez-Diaz, 444 F.3d 1223, 1228-29 (10th Cir. 2006).

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which the sentence was calculated and the length of the sentence imposed.

United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). A sentence within

the correctly calculated Guidelines range is presumed reasonable. Id.

      W e are persuaded that Defendant’s sentence is both procedurally and

substantively reasonable. The court correctly calculated the Guidelines range,

considered the § 3553(a) factors, and considered Defendant’s arguments for a

lower sentence. The court concluded that the offense was serious enough to

warrant incarceration and that it would not be appropriate for Defendant to avoid

a prison sentence based on her family situation. Considering all the relevant

facts, particularly Defendant’s criminal history and the fact that her prior lenient

sentences have not deterred her criminal activity, we see nothing unreasonable

about the sentence imposed. Under the circumstances of this case, Defendant’s

family situation does not render her sentence of five months of incarceration and

five months of home detention unreasonable. 3

      AFFIRM ED

                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge



      3
       W e would find Defendant’s sentence reasonable even without the Kristl
presumption. Accord United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir.
2007).

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