                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 18, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellant,
                                                         No. 08-2175
 v.                                                (D.C. No. 02-CR-02277)
                                                          (D.N.M.)
 CHARLIE TOM, JR.,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HARTZ, Circuit Judges.


      Defendant-Appellee Charlie Tom, Jr., was convicted by a jury of second-

degree murder on April 21, 2005, and was sentenced to 70 months’ imprisonment

and three years’ supervised release. I Aplt. App. 55, 71-73. The government

appealed Mr. Tom’s sentence, arguing that the sentence was procedurally

unreasonable because the district court utilized the wrong Guidelines range and

was substantively unreasonable because the district court granted a fifty-eight

percent variance from the bottom of the proper Guidelines range. United States v.



      *
        This order and judgment is not binding precedent, except under the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.
Tom, 494 F.3d 1277, 1279-80 (10th Cir. 2007). We reversed and remanded,

reaching only the procedural reasonableness challenge, although we did comment

that it was unlikely that the district court’s rationale for the variance could be

upheld under our precedents. Id. at 1282 n.3. Subsequently, the Supreme Court

decided Gall v. United States, 128 S. Ct. 586 (2007), which significantly changed

our review of sentencing decisions. United States v. Smart, 518 F.3d 800, 805-09

(10th Cir. 2008). On remand, the district court imposed the identical sentence. I

Aplt. App. 177-79. This appeal on substantive reasonableness grounds followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), and

affirm.



                                     Background

      Mr. Tom was charged with the unlawful killing of a newborn infant in

violation of 18 U.S.C. §§ 1111 and 1153. Also involved was his girlfriend (H.B.)

who pled guilty and received 44 months’ probation in juvenile proceedings. II

Aplt. App. 235. Mr. Tom elected to stand trial and was convicted by a jury of the

lesser-included offense of second-degree murder. I Aplt. App. 55. The

Presentence Report (PSR) identified a total offense level of thirty-three, applying

a two-level downward adjustment for acceptance of responsibility. II Aplt. App.

192-93. The district court accepted the PSR, including the adjustment, and

identified a Sentencing Guidelines range of 135 to 168 months. The district court

                                          -2-
then varied downward (essentially by six levels 1) and sentenced Mr. Tom to 70

months’ imprisonment and three years’ supervised release. Tom, 494 F.3d at

1279; I Aplt. App. 69, 71-73; II Aplt. App. 238. On appeal, we determined that

the two-level reduction for acceptance of responsibility was unwarranted; this

meant that the Guidelines range, on which the variance was necessarily based,

was incorrect. Tom, 494 F.3d at 1281-82. In imposing the identical sentence on

remand, the district court utilized the correct (and higher) Guidelines range, but

still concluded that “a sentence of 70 months under the unique circumstances of

this case is ‘sufficient, but not greater than necessary’ to comply with Section

3553(a)(2) sentencing goals.” 2 II Aplt. App. 249 (quoting 18 U.S.C. § 3553(a)).

The government renews its challenge to the substantive reasonableness of the

sentence, arguing that the sentence is unreasonable based upon the totality of the

circumstances, the extent of the variance, and the failure of the sentence to reflect

the seriousness of the offense. We address below only the facts necessary for this

order and judgment.



                                     Discussion

      Following United States v. Booker, 543 U.S. 220 (2005), this court reviews

      1
        The Guidelines range for an offense level of 27 with a criminal history
category of I is 70-87 months. U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
      2
        Thus, the district court essentially varied by eight levels, from a
Guideline range of 35 (168-210 months) to one of 27 (70-87 months).

                                        -3-
sentences for reasonableness. United States v. Friedman, 554 F.3d 1301, 1307

(10th Cir. 2009). Reasonableness review requires a two-step process, involving

both the procedural and substantive reasonableness of a sentence. United States

v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008). Although not at issue in

this case, review for procedural reasonableness addresses whether the sentencing

judge properly calculated the Guidelines range, considered the § 3553(a) factors,

and adequately explained its sentence. Id. at 895. “Review for substantive

reasonableness focuses on whether the length of the sentence is reasonable given

all the circumstances of the case in light of the factors set forth in 18 U.S.C.

§ 3553(a).” Friedman, 554 F.3d at 1307 (internal quotation marks omitted).

      We review the sentence imposed by the district court for an abuse of

discretion, granting “substantial deference” to the court’s determination. United

States v. Landers, 564 F.3d 1217, 1224 (10th Cir. 2009); United States v. Sells,

541 F.3d 1227, 1237 (10th Cir. 2008); see also Gall, 128 S. Ct. at 594. A district

court abuses its discretion when it “renders a judgment that is ‘arbitrary,

capricious, whimsical, or manifestly unreasonable.’” United States v. Munoz-

Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quoting United States v. Byrne, 171

F.3d 1231, 1235 (10th Cir. 1999)). This same standard applies to sentences that

fall outside the calculated Guidelines range; however, we may not apply a

presumption of unreasonableness to a non-Guidelines sentence. Landers, 564

F.3d at 1224; Munoz-Nava, 524 F.3d at 1146 (citing Gall, 128 S. Ct. at 597). As

                                          -4-
noted in Gall, we

      may consider the extent of the deviation, but must give due
      deference to the district court’s decision that the § 3553(a)
      factors, on a whole, justify the extent of the variance. The fact
      that the appellate court might reasonably have concluded that a
      different sentence was appropriate is insufficient to justify
      reversal of the district court.

Gall, 128 S. Ct. at 597. At the same time, our review recognizes the district

court’s responsibility to “ensure that the justification is sufficiently compelling to

support the degree of the variance,” and “a major departure should be supported

by a more significant justification than a minor one.” Id.

      The district court addressed the factors set forth in § 3553(a) in a lengthy

statement of reasons. First, the court considered the nature and circumstances of

the offense and the history and characteristics of the defendant. See 18 U.S.C. §

3553(a)(1). The court acknowledged the “particularly serious” nature of the

crime, and included in its analysis the facts that (1) H.B.’s mother had threatened

to throw the couple out of her home if H.B. became pregnant; (2) Mr. Tom and

H.B. were alone, “overwhelmed[,] and afraid” at the time of the birth; and (3) Mr.

Tom testified that he had wanted to keep the baby and that he did not actually

commit the murder, but rather only assisted by disposing the body after the fact.

II Aplt. App. 249. In addition, the court noted Mr. Tom’s mental capacity,

finding that he is “borderline mentally retarded” and, as a result, “reacted

impulsively and did what he was told to do.” II Aplt. App. 249-50. The court


                                         -5-
found Mr. Tom’s mental deficiencies to be a “mitigating factor that significantly

reduces his moral culpability and distinguishes him from those who do not suffer

from similar deficiencies.” II Aplt. App. 249. Specifically, the court referred to

its firsthand observations of Mr. Tom’s mental deficiencies throughout trial. See

VII Aplt. App. 858-59 (June 26, 2008 Sent’g Tr.). 3 Finally, the court perceived

Mr. Tom’s youthfulness to be yet another mitigating factor. The court noted that,

even though Mr. Tom had just reached age eighteen at the time of the offense,

that fact “does not mean that he has necessarily attained the emotional or

intellectual maturity of an adult and for this reason his moral culpability may be

reduced.” II Aplt. App. 250.

      The district court then addressed the need for the sentence imposed to

reflect the considerations set out in § 3553(a)(2)(A)-(D). The court considered

the facts that the defendant has no prior criminal history and has never been

incarcerated, suggesting that his 70-month sentence is “sufficient” to deter him

and impress upon him the seriousness of the conduct. II Aplt. App. 250.

Referring to Mr. Tom’s conduct as “aberrational,” arising only out of the highly

unique confluence of circumstances in this case, the court did not believe Mr.


      3
         Prior to trial, Mr. Tom underwent a psychiatric evaluation performed by
Dr. Gerald Fredman. II Aplt. App. 224-34. Dr. Fredman concluded that Mr.
Tom’s waiver of his rights “was voluntary and knowing” but that “the waiver was
not an intelligent waiver. Given his borderline intelligence and learning disorder,
it is more likely than not that he did not grasp the significance of the information
provided by the Miranda warnings.” II Aplt. App. 234.

                                        -6-
Tom posed a threat to the public. II Aplt. App. 250. The court further stated its

belief that Mr. Tom could benefit from rehabilitative programs, and that a longer

sentence would delay his access to those services. II Aplt. App. 250. Finally, the

court considered the need to avoid unwarranted disparities among similarly

situated defendants. II Aplt. App. 250; see § 3553(a)(6). Here, the court found

that a sentence of 70 months would be appropriate, especially because Mr. Tom’s

co-defendant “received a substantially more lenient sentence of 44 months

probation, . . . even though she may be more morally blameworthy than

Defendant.” II Aplt. App. 250. 4 The district court concluded that “a sentence of

70 months is ‘sufficient, but not greater than necessary’ to comply with

§ 3553(a)(2) sentencing goals.” II Aplt. App. 250 (quoting 18 U.S.C. § 3553(a)).

      We agree with the government that this is a major deviation requiring

significant justification. The properly calculated Guidelines range is 168-210

months and Mr. Tom received a sentence of approximately forty-two percent of

the low end of the advisory Guideline range. The government urges us to apply

United States v. Pugh, 515 F.3d 1179, 1191-92 (11th Cir. 2008), which suggests

various “symptoms” which may indicate a substantively unreasonable sentence:

      4
         The district court sentenced Mr. Tom’s co-defendant, H.B. (a minor),
after she pled guilty to unlawful killing of her newborn infant son pursuant to 18
U.S.C. § 1153. The court sentenced H.B. to probation until her twenty-first
birthday. II Aplt. App. 235-36. The sentencing judge acknowledged at Mr.
Tom’s sentencing hearing: “I’m angry with myself for giving [H.B.] such a
lenient sentence when I didn’t know her full role in all of this . . . .” VII Aplt.
App. 847 (June 26, 2008 Sent’g Tr.).

                                        -7-
(a) unjustified reliance on a § 3553(a) factor, (b) arbitrary selection of a sentence,

(c) basing a sentence on impermissible factors, and (d) failure to consider

pertinent § 3553(a) factors. The symptoms must be considered against a backdrop

of the totality of the circumstances; a remand is appropriate only where the

reviewing court is left with a definite and firm conviction that the district court

committed a clear error in judgment in weighing the factors—in other words, the

sentence under review is outside the range of reasonable sentences considering

the facts of the case. Id. These factors provide a helpful reference for analyzing,

and upholding, the substantive reasonableness of the district court’s sentencing

decision. See also United States v. Cavera, 550 F.3d 180, 191-92 (2d Cir. 2008);

United States v. Pinson, 542 F.3d 822, 836-37 (10th Cir. 2008).

      The government first argues that the sentence in this case constitutes an

abuse of discretion because the trial court focused on Mr. Tom’s history and

personal characteristics, including borderline mental retardation, youth, and the

aberrational nature of the offense. See U.S.S.G. § 3553(a)(1) & (a)(2)(C).

Additionally, the district court specifically found that Mr. Tom was not likely to

reoffend given the lack of a prior criminal record. The government maintains that

the court’s reliance on these factors is in tension with certain policy statements

discouraging departures, and that these policy statements should have been

considered under § 3553(a)(5). See U.S.S.G. § 5K2.13 (diminished capacity

departure not available where circumstances of offense indicate need to protect

                                          -8-
public given violent nature of the offense); id. § 5H1.1 (age including youth not

ordinarily relevant); id. § 5K2.20 (aberrant behavior departure not available for

offense involving serious bodily injury or death). The simple answer to this

contention is that the general policy statements apply to departures, but the

district court has a freer hand when it comes to variances and may consider these

factors as part of the nature and circumstances of the offense and the history and

characteristics of the defendant in fashioning a reasonable sentence consistent

with the overall objectives of § 3553(a). See United States v. Davis, 537 F.3d

611, 616-17 (6th Cir. 2008). While we appreciate the importance of such policy

statements, the district court could give some consideration to these factors as

part of the § 3553(a)(1) analysis.

      The government also argues that the court relied upon a version of the facts

that was contrary to common sense, minimized culpability and was inconsistent

with the jury’s verdict of second degree murder. Specifically, the district court

found that: (1) Mr. Tom was unaware that H.B. was pregnant until the head of the

baby appeared just before birth, (2) Mr. Tom repeatedly said that he wanted to

keep the baby, and (3) in response to H.B.’s insistence that they get rid of the

baby, Mr. Tom brought her a knife “from the kitchen and then stood by while she

cut the baby’s throat.” II Aplt. App. 249. By the time of trial, Mr. Tom’s

recounting of events changed from admitting that he was aware of the pregnancy

and responsible for the fatal stabbing to the above version apparently accepted by

                                         -9-
the district court. He explained that his prior versions were an effort to protect

H.B.

       We believe the jury still could find Mr. Tom guilty of second-degree

malice-aforethought murder based upon his role of providing the knife with full

knowledge of what was likely to occur. To be sure, as the government points out,

both Mr. Tom and H.B. gave multiple accounts and certain evidence suggests that

Mr. Tom’s role was far greater than he admitted to at the time of the trial.

Although claiming that he was unaware of the pregnancy, Mr. Tom had frequent

intercourse with H.B. during the pregnancy. Moreover, H.B. was three years

younger than Mr. Tom, had just given birth, had lost a significant amount of

blood, and probably lacked the strength immediately after childbirth to sever the

baby’s carotid artery and jugular vein and cut his trachea in half. III Aplt. App.

297; IV Aplt. App. 577-78. Be that as it may, our standard of review requires us

to defer to the district court’s subsidiary factual findings as it saw the evidence

and we cannot say that its conclusions are clearly erroneous or inconsistent with

the verdict. See Gall, 128 S. Ct. at 597-98. We think that is particularly true in

this case because both Mr. Tom and H.B. gave so many versions of what

occurred.

       The government also argues that the sentence fails to reflect the seriousness

of the offense, promote respect for law, or provide just punishment. 18 U.S.C.

§ 3553(a)(2)(A). Insofar as seriousness, the district court viewed the offense as

                                         - 10 -
“particularly serious because it involved a heinous murder of a defenseless and

most vulnerable human being.” II Aplt. App. 249. The government suggests that

the sentence is more consistent with lesser offenses ranging from voluntary

manslaughter to transporting marijuana and is inconsistent with appellate cases

that have affirmed substantial sentences for second-degree murder of a child.

Less ad hoc, the government argues that the base offense level for second-degree

murder was increased by five levels (to 38) effective November 1, 2004, to

provide an approximate twenty-year sentence for such an offense on the theory

that courts were departing upward in one-third of such cases and that, with

acceptance of responsibility, a defendant might serve as little as eight years.

U.S.S.G. App. C Supp., amend. 663. The government also points out that the

PROTECT Act established a mandatory life sentence for child abuse resulting in

death. 18 U.S.C. § 1111(a)-(b). We think that these are valid points to bear in

mind as we consider whether the district court sufficiently justified the variance.

      The government further argues that the sentence does not provide adequate

deterrence and fulfill the need to prevent unwarranted sentencing disparities. 18

U.S.C. § 3553(a)(2)(B), (a)(6). The district court considered the deterrence

adequate as to Mr. Tom and others like him because Mr. Tom lacked previous

exposure to the criminal justice system and would indeed serve 70 months.

Although the government urges that a 70-month sentence may be inadequate to

deter young parents from murdering an unwanted child, 70 months is a substantial

                                        - 11 -
prison term for Mr. Tom. This is not a case where a non-custodial sentence was

ordered. See Gall, 128 S. Ct. at 595 (recognizing greater severity of custodial

sentences); cf. Pugh, 515 F.3d at 1187 (involving a probationary sentence).

       The government also questions the district court’s sentencing disparity

analysis. We agree with the government that the purpose behind this provision is

to promote national sentencing uniformity. United States v. Ivory, 532 F.3d

1095, 1107 (10th Cir. 2008). At the same time, we know that the district court

may consider sentencing disparities between co-defendants. Gall, 128 S. Ct. at

599-600; Smart, 518 F.3d at 810. In this case, the district compared Mr. Tom’s

sentence with that of his co-defendant who received a 44-month sentence of

probation. Of course, the trial judge repeatedly expressed concern that the co-

defendant’s sentence was too lenient because the trial judge did not fully

appreciate her role in the offense until both parties testified at Mr. Tom’s trial.

II Aplt. App. 250; IV Aplt. App. 554-56; VI Aplt. App. 801-04. Ordinarily,

comparing the sentence of an adult defendant to that of a juvenile would be of

limited utility given that the two are not similarly situated. In these

circumstances, however, the district court apparently concluded that Mr. Tom’s

limited intellectual capacity and youth made the comparison more apt. We

cannot say that this individualized consideration is error given that the district

court personally observed Mr. Tom and recognized that any error in sentencing

H.B. did not warrant excessive leniency with Mr. Tom. VI Aplt. App. 804.

                                         - 12 -
Additionally, merely because the district court changed its view of H.B.’s

culpability after Mr. Tom’s trial does not make the fact of H.B.’s sentence any

less real. Besides, the district court’s remarks about H.B.’s culpability were

hardly met with adversarial testing—the district court might well have a different

view were H.B. given notice and an opportunity to respond.

      In the end, even though we might likely have chosen another sentence, we

cannot say that the district court’s sentence was not within the range of

reasonable sentences, though perhaps at the low end. Unlike in United States v.

Friedman, where we found a sentence to be substantively unreasonable because a

94-month variance was not supported by adequate explanation or evidence, here,

the district court considered the § 3553(a) factors and set forth reasoning (that

has support in the record) for its sentence. See Friedman, 554 F.3d at 1308-10.

The district court is considered to be “in a superior position to find facts and

judge their import under § 3553(a) in the individual case. The judge sees and

hears the evidence, making credibility determinations, has full knowledge of the

facts and gains insights not conveyed by the record.” Gall, 128 S. Ct. at 597

(internal quotation marks omitted); see Rita, 127 S. Ct. 2469 (“The sentencing

judge has access to, and greater familiarity with, the individual case and the

individual defendant . . . than the . . . appeals court.”); see also Smart, 518 F.3d

at 808.

      Moreover, we generally cannot review the weight assigned by the district

                                         - 13 -
court to the various § 3553(a) factors. Rather, “we must give due deference to

the district court’s decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.” Smart, 518 F.3d at 808 (internal quotation marks

omitted). After careful consideration, we cannot conclude that the district court

abused its discretion and the judgment must be

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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