                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                               February 19, 2009
                                 TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 08-6056
          v.                                         (W.D. Oklahoma)
 GARY W. FLANDERS,                             (D.C. No. 5:03-cr-00243-F-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      Gary Flanders was convicted on two counts of misapplication of bank

funds, see 18 U.S.C. § 656; two counts of scheming to defraud a bank, see id.

§ 1344(1); making a false entry in bank records, see id. § 1005; and conspiracy to

make a false statement to a bank, see id. § 371. His undisputed sentencing

guideline range was 51 to 63 months’ imprisonment. The district court varied

upward, imposing a 77 months’ sentence.


      *
       After examining the briefs and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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.
      Mr. Flanders’ sole issue on appeal is that his sentence was substantively

unreasonable. We have reviewed his arguments and disagree.

      The sentence imposed is AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




                                        -2-
08-6056 - United States v. Flanders

O’BRIEN, J. concurring.

      In a series of ceremonial rites the leveling forces of the guidelines, their

hearthstone, were sacrificed on the altar of sentencing discretion and appellate

courts rendered impotent. See Spears v. United States, 129 S. Ct. 840 (2009);

Gall v. United States, 128 S. Ct. 586 (2007); Kimbrough v. United States, 128 S.

Ct. 558 (2007); United States v. Booker, 543 U.S. 220 (2005).
