                                                                      FILED
                                                          United States Court of Appeals
                                 PUBLISH                          Tenth Circuit

                 UNITED STATES COURT OF APPEALS                  June 26, 2018

                                                              Elisabeth A. Shumaker
                        FOR THE TENTH CIRCUIT                     Clerk of Court
                      _________________________________

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                No. 17-1337

JACOB GABRIEL IBANEZ,

       Defendant - Appellant.
                    _________________________________

               Appeal from the United States District Court
                       for the District of Colorado
                    (D.C. No. 1:17-CR-00039-RBJ-1)
                    _________________________________

Submitted on the briefs * :

Virginia L. Grady, Federal Public Defender, John T. Carlson, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Robert C. Troyer, United States Attorney, Michael C. Johnson, Assistant
United States Attorney, Denver, Colorado, for Plaintiff-Appellee.
                    _________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
               _________________________________


*
      The parties have not requested oral argument, and it would not
materially aid our consideration of the appeal. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based
on the briefs.
     Mr. Jacob Ibanez was convicted of unlawfully possessing a gun. On

appeal, he challenges his 50-month sentence on the ground that it was

substantively unreasonable. This challenge requires Mr. Ibanez to show

that the ultimate sentence was unreasonable based on the statutory

sentencing factors. United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th

Cir. 2011). But Mr. Ibanez fails to address any of the statutory factors.

Instead, he attacks the reasonableness of a guideline provision invoked by

the district court. Even if we were to agree with Mr. Ibanez’s criticism of

the guideline provision, this criticism would not implicate the

reasonableness of the sentence itself. As a result, we affirm the sentence.

1.   Standard of Review

     In reviewing Mr. Ibanez’s challenge, we apply the abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Under

this standard, we can reverse only if the 50-month sentence was arbitrary,

capricious, whimsical, or manifestly unreasonable. United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009).

2.   Substantive Reasonableness

     We apply this standard based on the nature of the underlying

appellate contention. In considering a substantive-reasonableness

challenge, we presume that the sentence was reasonable if it fell within the

applicable guideline range. United States v. Alvarez-Bernabe, 626 F.3d

1161, 1165 (10th Cir. 2010). To rebut this presumption, the defendant

                                      2
would need to show that the statutory sentencing factors render the

sentence unreasonable. United States v. Kristl, 437 F.3d 1050, 1054 (10th

Cir. 2006) (per curiam).

3.   Mr. Ibanez’s Appellate Argument

     The 50-month sentence fell within the guideline range, triggering the

presumption of reasonableness. With this presumption, we consider the

district court’s explanation for the sentence. United States v. Barnes, 890

F.3d 910, 916-17 (10th Cir. 2018). This explanation reflected the district

court’s consideration of Mr. Ibanez’s unlawful possession of two guns, a

number of felonies in his past, a history of violating probation and

absconding from parole, his commission of the present offense while on

supervised release, a substantial arrearage in child support, his possession

of semiautomatic weapons while abusing substances, a continued threat to

community safety, and the guideline range.

     Mr. Ibanez does not question the presumption of reasonableness or

argue that a 50-month term is unreasonable. He instead argues that the

district court increased the offense level based on a guideline that was

itself unreasonable, U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(B).

But even if the guideline had been unreasonable, we would have little

cause to question the reasonableness of the sentence itself. See United

States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (per curiam)

(“Whatever the district court’s views as to the Sentencing Commission’s

                                      3
policy judgment underlying a particular guidelines provision, our proper

role on appeal is only to determine whether the district court abused its

discretion by imposing a substantively unreasonable sentence on a

particular offender.”).

      The reasonableness of the guideline was an appropriate consideration

for the district court but is not material here. If the district court had

agreed with Mr. Ibanez’s criticism of the guideline, the court could have

chosen not to apply the enhancement. United States v. Lopez-Macias, 661

F.3d 485, 489–90 (10th Cir. 2011). But the district court also had the

discretion to follow the guideline. United States v. Alvarez-Bernabe, 626

F.3d 1161, 1165–66 (10th Cir. 2010); see United States v. Barron, 557

F.3d 866, 870–71 (8th Cir. 2009) (stating that even if a district court could

disregard the guideline provision (§ 2K2.1(a)(4)(B)) on policy grounds, the

court could also follow the provision regardless of whether it reflects a

congressional policy judgment or an empirical approach). In exercising this

discretion, the district court explained why it was choosing to follow the

guideline: “[I]t is rational to distinguish high-capacity magazines for

harsher punishment because . . . high-capacity magazines have the

potential to spew out more bullets and cause more harm.” R. vol. 3 at

27–28. This explanation fell within the district court’s considerable realm

of discretion.



                                        4
      The outcome would remain the same even if we could otherwise

consider the validity of the guideline. Mr. Ibanez’s challenge stems from

the origin of the guideline provision. It originated with a federal statute

banning the possession of semiautomatic assault weapons. Public Safety &

Recreational Firearms Use Protection Act, Pub. L. No. 103-322, Title XI,

Subtitle A, § 110102, 108 Stat. 1996 (1994). With passage of the statute,

the U.S. Sentencing Commission adopted a guideline provision increasing

the offense level when a prohibited person possesses a semiautomatic

assault weapon. U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(B).

      Though the federal statute lapsed in 2004, the Sentencing

Commission retained the substance of the guideline provision, stating that

the enhancement applies when a semiautomatic weapon can fit a magazine

capable of accepting 15 or more rounds of ammunition. Id. § 2K2.1 cmt. 2.

In retaining the substance of the provision, the Sentencing Commission

determined that the public is endangered when prohibited persons possess

large-capacity magazines. United States v. Myers, 553 F.3d 328, 331 (4th

Cir. 2009).

      For this determination, the Sentencing Commission could rely on its

own policy judgment notwithstanding the expiration of Congress’s ban on

semiautomatic weapons. See United States v. Barron, 557 F.3d 866, 871

(8th Cir. 2009) (stating that the district court acted reasonably in following

the Sentencing Commission’s policy judgment on large-capacity magazines

                                      5
notwithstanding Congress’s repeal of the ban); see also United States v.

Roberts, 442 F.3d 128, 130 (2d Cir. 2006) (per curiam) (stating that the

Sentencing Commission could incorporate the definition of prohibited

magazines after the congressional ban had been repealed). 1 In light of the

Sentencing Commission’s authority to make its own policy judgments, the

guideline enhancement for possession of large-capacity magazines is not

undermined by expiration of the congressional ban.

4.   Conclusion

     Mr. Ibanez does not challenge the reasonableness of the 50-month

sentence. He instead challenges the reasonableness of a guideline provision

authorizing an enhancement. In our view, the Sentencing Commission

validly exercised its policymaking judgment by adopting the guideline

enhancement. But even if the Sentencing Commission’s policymaking

judgment had been misguided, this fact would not have rendered Mr.


1
        Even after expiration of the congressional ban, numerous states and
municipalities have continued to criminalize possession of large-capacity
magazines. Cal. Penal Code § 32310(c); Colo. Rev. Stat. Ann. § 18-12-302;
Conn. Gen. Stat. § 53-202w(b); Hawaii Rev. Stats. Ann. § 134-8(c); Md.
Code Ann., Crim. Law § 4-305(b); Mass. Gen. Laws Ann. ch. 269, § 10(m);
N.J. Stat. Ann. § 2C:39-3(j); N.Y. Penal Law § 265.02(8); Vt. Stat. Ann.
tit. 13, § 4021(a); City of Los Angeles, Cal. Mun. Code § 46.30(b)(1); City
of Oakland, Cal. Ord. Code § 9.38.040(A); City of San Francisco, Cal.
Police Code § 619(c); City of Sunnyvale, Cal. Mun. Code § 9.44.50; City
of Tiburon, Cal. Ord. Code § 32-35; City of Aurora, Ill. Ord. Code § 29-
49(a); City of Burbank, Ill. Ord. Code § 9-64.1(d); City of Chicago, Ill.
Mun. Code 8-20-085(b); City of Highland Park, Ill. Ord. Code § 136.005;
Cook Cty., Ill. Ord. Code § 54-212(a); City of Philadelphia, Pa. Code § 10-
821b(2)(c), (h), (3); accord D.C. Code § 7-2506.01(b).
                                      6
Ibanez’s sentence unreasonable. As a result, we reject his challenge to the

sentence.

     Affirmed.




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