                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                              FOR THE TENTH CIRCUIT                     September 6, 2018
                          _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                      No. 17-6250
                                                    (D.C. No. 5:17-CR-00105-R-1)
    BIRDIE JO HOAKS,                                        (W.D. Okla.)

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________


         Defendant Birdie Jo Hoaks appeals her 60-month sentence for conspiracy

imposed by the United States District Court for the Western District of Oklahoma.

Her sole issue on appeal is whether the district court’s upward variance from the

unchallenged sentencing guideline range of 24 to 30 months was procedurally and




*
  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 This order and judgment is not binding precedent, except under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.
substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

       Following a spree of defrauding the Postal Service of almost $62,000 by

purchasing stamps with bad checks, Defendant pleaded guilty to conspiring with her

twin sister. See 18 U.S.C. § 371. The presentence investigation report (PSR)

suggested a guideline range of 24 to 30 months’ imprisonment. But it noted the

“seriousness and continuity” of Defendant’s criminal history—including 18

convictions, 13 of which did not count toward her PSR criminal-history points for

various reasons including their age— as a factor the sentencing court might consider

as a basis for either an upward departure or variance from the guideline range.

R., Vol. 2 at 36.

       In deciding upon the sentence the district court considered the PSR,

Defendant’s sentencing memorandum, and Defendant’s statement at her sentencing

hearing in which she described the abuse she suffered as a child, her close relationship

with a son, and her admission of responsibility. At the hearing the court

acknowledged that Defendant “had a . . . very unfortunate childhood and society has

got to do better.” R., Vol. 3 at 14. And it asked questions about her relationship with

her son. But the court concluded:

       [I]n considering the sentencing factors set forth in 18 U.S. Code 3553, I think
       my primary goal right now, and responsibility, is to protect society.
       Unfortunately, at least by my count, in the presentence report you have 18 prior
       convictions, an additional 14 arrests. That’s – that’s the times that you have
       gotten caught. With all this in mind, it’s my judgment that you need to be put


                                           2
       away for as long as I can put you away so you won’t be doing this to other
       people.

R., Vol. 3 at 14.

       After imposing the sentence, the court completed a Statement of Reasons form

in which it checked boxes indicating it had exceeded the guideline range because of

the “nature and circumstances of the offense,” “the history and characteristics of the

defendant,” “to reflect the seriousness of the offense,” “to afford adequate deterrence

to criminal conduct,” and “to protect the public from further crimes of the defendant.”

R., Vol. 2 at 41-42.

       Defendant’s only procedural challenge to her sentence is that the district court

did not adequately explain its upward variance of her sentence at the sentencing

hearing or in its Statement of Reasons. Ordinarily, we review the procedural

reasonableness of a sentence under an abuse-of-discretion standard. See United States

v. Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014). But because Defendant did

not object to the procedure below, we review only for plain error. See United States v.

Mendoza, 543 F.3d 1186, 1190 (10th Cir. 2008).1 Under that standard we reverse

only if the district court committed “(1) error, (2) that is plain, (3) which affects . . .




1
  Defendant argues that she did not have the opportunity to object to the Statement of
Reasons because it was issued after the conclusion of her sentencing proceeding. But the
proper way to object to a defective Statement of Reasons is to file a motion to correct the
document. See Mendoza, 543 F.3d at 1195-96.

                                              3
substantial rights and (4) which seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id.

       We see no error, much less error that is plain, in the district court’s explanation

of its sentence at the sentencing hearing. The issue is why the court imposed a

sentence twice as severe as the upper end of the guideline sentencing range. The

explanation was clear and reasonable: Defendant had not shown the ability to

conform her behavior to the law, as established by a horrendous record of arrests and

convictions. The court noted that it had considered all the statutory factors. But none

could outweigh the threat to society.

       As for Defendant’s challenge to the Statement of Reasons, she fails on the third

prong of plain-error review because she cannot show prejudice from any shortcoming

in this postsentencing document. See United States v. Ortiz-Lazaro, 884 F.3d 1259,

1264 (10th Cir. 2018) (“[W]e believe that the district court would have imposed the

same sentence had it filed a written statement of reasons form.” (internal quotation

marks omitted)).

       Defendant’s substantive-reasonableness challenge is that the sentence is greater

than necessary to comply with the sentencing factors set forth in § 3553(a). We

review for abuse of discretion. See id. at 1265 (“A district court abuses its discretion

when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly

unreasonable.”).




                                             4
      The district court did not abuse its discretion. A five-year sentence for

Defendant’s offense, in light of her criminal history, was hardly whimsical. At some

point even sympathy for a defendant’s traumatic childhood cannot override the need

to protect society. And Defendant’s love for her son, which apparently had not

induced her, in the court’s words, to “get a job and take care of [him],” was not a

compelling basis for leniency. R., Vol. 3 at 13.

      I.     CONCLUSION

      We AFFIRM the judgment below.

                                            Entered for the Court


                                            Harris L Hartz
                                            Circuit Judge




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