                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                   July 9, 2009
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 08-1437
    v.                                       (D.C. No. 1:08-CR-000257-JLK-1)
                                                         (D. Colo.)
    JACK L. CHRISMAN,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judge.


         Jack L. Chrisman appeals his sentence of 63 months’ imprisonment

imposed following his guilty plea to possessing an unregistered firearm.

Chrisman maintains that his sentence is procedurally unreasonable, and therefore

he is entitled to a new sentence. Exercising jurisdiction pursuant to 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291, we affirm.


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                     Background

      In April of 2008, Chrisman was stopped for a traffic violation and a pipe

bomb was discovered in the back seat of his car. He was charged with one count

of possession of an unregistered firearm, pursuant to 26 U.S.C. §§ 5841, 5861(d),

and 5871. He ultimately entered a guilty plea to the charge. At the sentencing

hearing, the district court first approved a correction to the presentence report

(PSR). As corrected, the PSR calculated Chrisman’s total offense level at 19 and

his criminal-history category at VI, for an imprisonment range of 63 to 78

months. The government argued for a sentence of 70 months. The defense took

the position that “the Court [could] justify under [18 U.S.C. §] 3553 the same

type of sentence that the guidelines calculate here, which is a sentence between 5

and 6 years.” R. Vol. III at 5. In announcing the sentence of 63 months, the

district court stated that it would “follow the [PSR’s] recommendation and impose

the minimum recommended sentence of 63 months.” Id. at 8. The court then

reviewed the Guidelines calculations resulting in an imprisonment range of 63 to

78 months and stated, “I find no reason to depart from that range, which does not

exceed 24 months, and will impose a sentence within that range.” Id. 1 Before

closing the hearing, the court asked the parties if there was anything further and


1
       The court apparently referred to 18 U.S.C. § 3553(c)(1), which requires a
district court to explain “the reason for imposing a sentence at a particular point
within the [Guidelines] range” for a within-Guidelines sentence whose range
exceeds 24 months.

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both parties said there was nothing further.

                                      Discussion

      On appeal, Chrisman argues that his sentence is procedurally unreasonable

because the district court improperly treated the Guidelines range as the

presumptive imprisonment range. He contends that the court’s statement that it

found no reason to depart from the Guidelines range was “in effect, . . . an

erroneous presumption in favor of a guideline sentence.” Aplt. Opening Br. at 4.

He further maintains that this characterization of the court’s remark is bolstered

by the court’s failure to discuss at the sentencing hearing the factors listed in

18 U.S.C. § 3553(a).

      We agree that a district court may not apply a presumption of

reasonableness to a Guidelines sentence. United States v. Gambino-Zavala,

539 F.3d 1221, 1231 (10th Cir. 2008). We are not bound by Chrisman’s

characterization of the record, however. Although the district court stated that it

found no reason to depart from the Guidelines, it did not state that it applied a

presumption that the Guidelines sentence was reasonable. Cf. United States v.

Arrevalo-Olvera, 495 F.3d 1211, 1212-13 (10th Cir. 2007) (holding district court

erred when it stated that it was required to determine that a Guidelines sentence

was unreasonable before it could consider defendant’s request for a sentence

below Guidelines range), cert. denied, 128 S. Ct. 1319 (2008).




                                          -3-
      Chrisman argued for a sentence of five to six years and he received a

sentence at the low end of his request. In addition, he declined the opportunity to

have the district court clarify or expand its reasoning for its sentencing decision.

Consequently, he has likely waived his sentencing arguments, which would afford

him no appellate review. At the very least, he has forfeited his claims. See

United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (“[A]

party that has forfeited a right by failing to make a proper objection may obtain

relief for plain error; but a party that has waived a right is not entitled to appellate

relief.” (quotation omitted)). Therefore, we will review for plain error. See

United States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th Cir. 2009) (holding

defendant forfeited his claim that district court’s statement of reasons was

inadequate by not alerting the district court; claim reviewed for plain error). “We

find plain error only when there is (1) error, (2) that is plain, (3) which affects

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

reputation of judicial proceedings.” United States v. Cereceres-Zavala, 499 F.3d

1211, 1217 (10th Cir. 2007) (quotation omitted).

      Applying these criteria, “we find we need not look any further than the first

prong of the plain error standard of review, because the district court committed

no error.” Id. The district court’s stated reasons for selecting the sentence it

imposed were quite brief, but the record demonstrates that “the judge rest[ed] his

decision upon the Commission’s own reasoning that the Guidelines sentence is a

                                           -4-
proper sentence (in terms of § 3353(a) and other congressional mandates).” Rita

v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2468 (2007). 2 Further, Chrisman

did not ask the court to clarify its “no reason to depart” remark, even though the

court provided him an opportunity to do so. His failure to seek clarification

prevented the court from “correct[ing] or avoid[ing] the mistake so that it [could

not] possibly affect the ultimate outcome.” Puckett v. United States, 129 S. Ct.

1423, 1428 (2009). Finally, Chrisman received the sentence he requested–he

requested and received a sentence at the low end of the sentencing range. For

Chrisman to now argue that the district court’s sentencing was procedurally

unreasonable smacks of invited error. See United States v. LaHue, 261 F.3d 993,

1011 (10th Cir. 2001) (“The invited error doctrine prevents a party from inducing

action by a court and later seeking reversal on the ground that the requested

action was in error.” (quotation omitted)). Accordingly, we conclude that

Chrisman’s sentence is not procedurally unreasonable.

      AFFIRMED.


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge


2
      We are aware that Chrisman does not argue on appeal that the district
court’s stated reasons are insufficient and, in fact, disclaims any such argument.
Aplt. Opening Br. at 8 n.2.

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