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

                            FOR THE TENTH CIRCUIT                         May 22, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff–Appellee,

v.                                                         No. 11-6177
                                                   (D.C. No. 5:10-CR-00080-F-1)
VERNON EUGENE WYATT,                                       (W.D. Okla.)

             Defendant–Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY, and LUCERO, Circuit Judges.


      Vernon Eugene Wyatt pled guilty to possession of cocaine base in violation of

21 U.S.C. § 844(a). He appeals his 30-month above-Guidelines sentence. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

                                           I

      A superseding information charged Wyatt with one count of possession of

approximately three grams of crack cocaine. In exchange for pleading guilty to that

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
offense, the government agreed to dismiss a pending indictment charging Wyatt with

four other crack-related charges. Although Wyatt agreed to plead guilty to

possessing only three grams of crack, the plea agreement stated that “the government

is aware of 20 grams of cocaine base (crack) attributable to this defendant.”

      At the time the parties executed the plea agreement, they understood that

Wyatt was subject to a five-year mandatory minimum sentence based upon his prior

convictions. The district court accordingly sentenced Wyatt to a five-year term of

imprisonment. That understanding was incorrect, however. While Wyatt’s initial

appeal to this court was pending, the government moved to vacate Wyatt’s sentence

and remand to the district court for resentencing. We granted the government’s

motion. See United States v. Wyatt, No. 11-6054 (10th Cir. May 9, 2011)

(unpublished order).

      On remand, the probation officer prepared a revised presentence investigation

report (“PSR”), calculating Wyatt’s Guidelines range as 15-21 months. Because

Wyatt had assaulted a cooperating witness while incarcerated, the PSR recommended

that the district court deny him a reduction in offense level for acceptance of

responsibility. Wyatt filed several objections to the PSR.

      At the sentencing hearing, the district court overruled each of Wyatt’s

objections. In addressing the 18 U.S.C. § 3553(a) factors, the court observed that

Wyatt had a number of criminal convictions and that Wyatt had “a pretty sketchy

record of productive activity by way of honest employment.”


                                          -2-
      The district court next referred back to its statements at Wyatt’s previous

sentencing hearing regarding his “violent acts vis-a-vis the other inmate.” At the

earlier hearing, after viewing a videotape of the assault, the court stated to Wyatt,

“You’re a thug and a coward. You struck a man twice your age.” Finally, the court

noted that Wyatt was “the beneficiary of the professionalism and the ethical

standards and the good lawyering” of the government attorney who identified the

parties’ and the court’s error regarding applicability of the five-year mandatory

minimum sentence. Citing to Wyatt’s “persistent criminal tendencies, including

persistent tendencies to commit serious crimes, it is my judgment that an upward

variance is appropriate.” The court then sentenced Wyatt to 30 months’

imprisonment, an upward variance of nine months from the top of his applicable

Guidelines range. Wyatt filed a timely notice of appeal.

                                           II

      We review Wyatt’s sentence for reasonableness, and we defer to the district

court under an abuse-of-discretion standard of review. See United States v.

Lopez-Macias, 661 F.3d 485, 488-89 (10th Cir. 2011). In the sentencing context,

      [r]easonableness has a procedural and substantive component.
      Procedural error includes failing to calculate (or improperly calculating)
      the Guidelines range, treating the Guidelines as mandatory, failing to
      consider the § 3553(a) factors, selecting a sentence based on clearly
      erroneous facts, or failing to adequately explain the chosen sentence—
      including an explanation for any deviation from the Guidelines range.

Lopez-Macias, 661 F.3d at 489 (quotations and alteration omitted). “A sentence is

substantively reasonable when the length of the sentence reflects the gravity of the

                                          -3-
crime and the § 3553(a) factors as applied to the case.” United States v.

Martinez-Barragan, 545 F.3d 894, 898 (10th Cir. 2008) (quotation omitted). We

review the district court’s conclusions of law de novo and its findings of fact for

clear error. See United States v. Collins, 511 F.3d 1276, 1279 (10th Cir. 2008).1

                                           A

      Wyatt contends that the district court erred in denying him a downward

adjustment in his offense level for acceptance of responsibility because of his assault

of a cooperating witness. He claims the assault was relatively minor and should not

outweigh his decision to plead guilty.

      “[A] guilty plea and admission of the conduct comprising the offense

constitute significant evidence of acceptance of responsibility, but may be

outweighed by conduct of the defendant that is inconsistent with such acceptance of

responsibility.” Collins, 511 F.3d at 1280 (quotations omitted). Thus, a district court

may deny an adjustment for acceptance of responsibility based on a defendant’s

criminal conduct unrelated to the offense of conviction. See United States v. Prince,

204 F.3d 1021, 1022-24 (10th Cir. 2000) (affirming denial based on defendant’s

stabbing of another prisoner while awaiting sentencing). After viewing the

videotaped assault, the district court concluded that Wyatt’s conduct was inconsistent


      1
        We note the government’s contention that Wyatt waived in the plea
agreement his right to appeal his sentence, except to the extent it exceeded the
advisory Guidelines range. We nonetheless elect to reach the merits of all of Wyatt’s
arguments on appeal for the sake of judicial economy.


                                          -4-
with an acceptance of responsibility. That determination “is entitled to great

deference on review,” Collins, 511 F.3d at 1280-81, and we cannot say that the

court’s decision was an abuse of discretion.

                                           B

      In reviewing a sentence that varies from the applicable Guidelines range,

      [w]e must consider the totality of the circumstances, . . . but we may not
      apply a presumption of unreasonableness. [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.

United States v. Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quotation

omitted).

      Wyatt challenges the district court’s characterization of his criminal record as

indicating that he has persistent criminal tendencies. He asserts that his criminal

history is not exceptional and every aspect of it was already accounted for in his

Guidelines range. We reject this argument because “district courts are . . . allowed to

contextually evaluate each § 3553(a) factor, including those factors the relevant

[G]uideline(s) already purport to take into account, even if the facts of the case are

less than extraordinary.” United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008).

      Wyatt also takes issue with the district court’s statement that this case

involved more than a negligible amount of crack. He argues there is no evidence that

he possessed crack other than for personal consumption. But he fails to show that the


                                          -5-
district court abused its discretion in treating this case as involving 20 grams of crack

based on the statement in the plea agreement concerning the amount of crack

attributable to Wyatt.

      With respect to the district court’s finding that Wyatt’s violent propensities

support a need for incapacitation, he emphasizes that his criminal record includes

only one violent offense, which occurred ten years before his sentencing in this case.

But the district court considered both his criminal record and his assault of the

informant when assessing the need to protect the public from further crimes under

§ 3553(a). The district court characterized Wyatt’s assault as serious and weighed it

heavily in concluding that his criminal history and his subsequent conduct were

indicative of a propensity for violence. These determinations are entitled to

deference. See Smart, 518 F.3d at 808.

      Wyatt also contends that the district court abused its discretion by considering

the parties’ incorrect assumption that he was subject to a five-year mandatory

minimum sentence prior to the first appeal. Although the district court acknowledged

the change in circumstances from his previous sentencing and the resulting benefit to

him, our reading of the record indicates that the court properly considered the

Guidelines and the § 3553(a) factors in imposing Wyatt’s sentence. We do not

accept Wyatt’s conjecture that the district court’s true motivation in imposing a

sentence above the Guidelines range was to account for the fact it could not impose

the longer, mandatory-minimum sentence.


                                          -6-
      Finally, Wyatt asserts generally that his above-Guidelines sentence is

unreasonably long.2 Even considering the extent of the district court’s variance

above Wyatt’s advisory Guidelines range, however, we cannot say that his 30-month

sentence falls outside the range of rationally available sentencing options based on

the totality of the circumstances.

                                           C

      Wyatt’s final argument is that there is no rational basis for according crack

cocaine a base offense level of 8 while according powder cocaine a base offense level

of 6.3 “This Circuit has repeatedly upheld the validity of the statutory distinction in

the sentencing levels between powdered cocaine and cocaine base as rational.”

United States v. Angulo-Lopez, 7 F.3d 1506, 1509 (10th Cir. 1993) (citing cases

upholding constitutionality of previous 100:1 ratio). Wyatt fails to show that his



      2
         Wyatt argues that the district court failed to follow the Guidelines applicable
to upward departures. But the district court did not depart upward in sentencing
Wyatt, it varied upward. See United States v. Sells, 541 F.3d 1227, 1237 n.2 (10th
Cir. 2008) (“A departure occurs when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of the
Sentencing Guidelines. A variance occurs when a court enhances or detracts from
the recommended range through application of § 3553(a) factors.” (quotations and
alterations omitted)). This contention is therefore without merit.

      3
         Wyatt notes that some judges have applied a 1:1 ratio in sentencing for crack
cocaine offenses. See United States v. Lewis, 625 F.3d 1224, 1232 (10th Cir. 2010)
(noting courts may, but are not required to, depart or vary downward from the crack
Guidelines), cert. denied, 131 S. Ct. 1790 (2011). But he does not contend that the
district court abused its discretion in failing to do so in this case.


                                          -7-
Guidelines range was unconstitutional based on the crack/powder cocaine sentencing

disparity.

                                         III

       Having found no merit in Wyatt’s contentions of error regarding his sentence,

we AFFIRM the judgment of the district court.


                                               Entered for the Court



                                               Carlos F. Lucero
                                               Circuit Judge




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