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

                                   TENTH CIRCUIT                              December 9, 2013

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                              No. 13-1251
                                                      (D.C. No. 1:12-CR-00406-WJM-1)
 LAWRENCE ROLLAND THIEL,                                          (D. Colo.)

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before KELLY, HOLMES, and MATHESON, Circuit Judges.



       Lawrence Thiel pled guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to prison for 110

months, which was at the bottom of his United States Sentencing Guidelines (the




        *After examining Appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
“Guidelines”) range. He appeals only the substantive reasonableness of his sentence.

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,1 we affirm.

       Because Mr. Thiel’s sentence was within his Guidelines range of 110 to 120

months,2 we must reject his claim of substantive unreasonableness unless he can

overcome the presumption that the sentence was reasonable. See United States v. Kristl,

437 F.3d 1050, 1055 (10th Cir. 2006) (per curiam); see also Rita v. United States, 551

U.S. 338, 347-56 (2007). He has failed to do so.

       First, Mr. Thiel argues that the district “court gave too much weight to the

sentence suggested by the advisory sentencing guideline range, the low end of which was

only 10 months lower than the statutory maximum for the offense.” Aplt. Br. at 4. This

argument, standing alone, appears to be a policy disagreement with the Guidelines range

required under U.S.S.G. § 2K2.1 for defendants with extensive criminal histories.


       1
         Although the terms of Mr. Thiel’s plea agreement appear to preclude an appeal
in this case, see ROA, Vol. I at 7, the Government does not seek to enforce Mr. Thiel’s
appellate waiver in its letter informing the court that it has declined filing a response to
Mr. Thiel’s opening brief, see Appellee’s Notice that a Response Brief Will Not Be Filed,
United States v. Thiel, No. 13-1251 (10th Cir. Nov. 20, 2013). We may therefore
consider Mr. Thiel’s appeal. See United States v. Contreras-Ramos, 457 F.3d 1144, 1145
(10th Cir. 2006) (finding “sufficient” the Government’s explicit invocation of
defendant’s appellate waiver in letter to court declining to file a response to Anders
brief); United States v. Clark, 415 F.3d 1234, 1237 n.1 (10th Cir. 2005) (refusing to
enforce appellate waiver where the Government neither filed a motion to enforce nor
argued for enforcement in its brief because such a waiver is not jurisdictional).
       2
         According to the Guidelines, Mr. Thiel’s sentencing range for his total offense
level of 25 and criminal history category VI should be 110 to 137 months. See U.S.S.G.
Ch. 5, Part A (Sentencing Table). Because the maximum sentence authorized by statute
for Mr. Thiel’s offense is 120 months, however, the Probation Office and the district
court properly calculated his Guidelines range at 110 to 120 months. See 18 U.S.C.
§ 924(a)(2); U.S.S.G. § 5G1.1(c)(1).
                                               -2-
Although a district court “may in appropriate cases impose a non-Guidelines sentence

based on disagreement with the [Sentencing] Commission's views,” Peugh v. United

States, 133 S. Ct. 2072, 2080 (2013) (quotations omitted), it is not required to do so. We

also note that Congress provided for a maximum sentence of 10 years, see 18 U.S.C.

§ 924(a)(2), which is longer than the sentence Mr. Thiel received. Although the district

court expressed concern about Sentencing Commission amendments having escalated the

Guidelines range applicable to Mr. Thiel, ROA, Vol. III at 57-58, it balanced that concern

against other factors found in 18 U.S.C. § 3553(a). We find nothing unreasonable in that

approach.

       Second, Mr. Thiel argues that the sentence “does not account for the unique

circumstances of [his] history and characteristics, and it is greater than necessary to deter

[him] from further criminal conduct.” Aplt. Br. at 4. These are factors (1) and (2)(B) of

those a court considers under 18 U.S.C. § 3553(a) in imposing a sentence. “[S]ubstantive

reasonableness review broadly looks to whether the district court abused its discretion in

weighing permissible § 3553(a) factors in light of the ‘totality of the circumstances.’”

United States v. Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009) (quoting Gall v. United

States, 552 U.S. 38, 51(2007)). We conclude the district court did not abuse its discretion

in considering these factors.

       Although the district court recognized that 10 of Mr. Thiel’s 12 prior felony

convictions had occurred between 18 and 32 years in the past, see ROA, Vol. III at 58,

the court was troubled that Mr. Thiel in this case had pointed and shot “a firearm at the

residence of an individual who was believed to be involved in foreclosure proceedings of

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his property,” and that Mr. Thiel also pointed “a weapon directly at a family with three

children as he drove by their vehicle and attempted to run them off the road,” id. at 58-59.

The district court also noted that, although much of Mr. Thiel’s criminal history “is quite

old,” the “relevant history is, indeed, disturbing and violent,” including 12 prior

convictions—one in 2000 for “felony assault of two deputies”—and five separate prison

sentences. Id. at 59. Mr. Thiel does not dispute any of the foregoing facts in his brief.

       After further consideration of the § 3553(a) factors, the district court imposed a

bottom-of-the-Guidelines range sentence of 110 months. Id. at 60.

       Based on the foregoing, we conclude that Mr. Thiel has not overcome the

presumption that his sentence was reasonable. The district court did not abuse its

discretion. We therefore affirm.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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