                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 16, 2012
                 UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 11-1054
 v.                                          (D.C. No. 1:10-CR-00107-REB-1)
                                                         (D. Colo.)
 FRANK W. LEWIS,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before GORSUCH, SEYMOUR, and MATHESON, Circuit Judges.



      Frank W. Lewis pled guilty to six counts of bank robbery under 18 U.S.C.

§ 2113(a). After determining that Mr. Lewis’s advisory guideline range for

sentencing was 63 to 78 months of imprisonment, the district court imposed a

variant sentence of 120 months. We AFFIRM.

      Mr. Lewis appeals his sentence on two grounds. He first argues the district

court violated 18 U.S.C. § 3582(a) by increasing his sentence in part to promote

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
his rehabilitation. He relies on the fact that in explaining its decision to vary

upwards from the guidelines, the district court stated:

      I conclude ultimately on this record considered as a whole, that to
      provide just punishment, to promote respect for the law, to protect
      the public from further crimes, to provide adequate deterrence, to
      provide Mr. Lewis with an opportunity for rehabilitation both in and
      out of prison, and to avoid unwarranted sentencing disparities that I
      should vary upwards to impose a sentence of 120 months on each of
      the six counts of conviction.

Rec., vol. II at 69-70 (emphasis added). Because Mr. Lewis did not raise this

argument below, we review for plain error. United States v. Cordery, 656 F.3d

1103, 1105 (10th Cir. 2011). To establish plain error, Mr. Lewis “must

demonstrate the district court (1) committed error, (2) the error was plain, and (3)

the plain error affected his substantial rights.” Id. (citing United States v. Cotton,

535 U.S. 625, 631 (2002)). “If these factors are met, we may exercise discretion

to correct the error if (4) it seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id.

      “A sentence is procedurally unreasonable if it is based on consideration of

an impermissible factor.” United States v. Story, 635 F.3d 1241, 1244 (10th Cir.

2011). Section 3582(a) states that in selecting sentences, district courts “shall

consider the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are

applicable, recognizing that imprisonment is not an appropriate means of

promoting correction and rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added).

Subsequent to the decision of the district court in this case, the Supreme Court

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analyzed § 3582(a) in Tapia v. United States, ___ U.S. ___, 131 S. Ct. 2382

(2011). It held that the statute “precludes sentencing courts from imposing or

lengthening a prison term to promote an offender’s rehabilitation.” Id. at 2391.

The Court concluded that a sentencing court acts improperly when it calculates a

defendant’s sentence to ensure that he receive rehabilitative services. Id. at 2392-

93; see also Cordery, 656 F.3d at 1105-08 (finding plain error and remanding for

resentencing where district court considered rehabilitative goals in sentencing

defendant).

      “[A]n error is ‘plain’ if it is clear or obvious at the time of the appeal . . . .”

United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (citing

Johnson v. United States, 520 U.S. 461, 468 (1997)); see also Cordery, 656 F.3d

at 1106-07 (discussing rule). Here, the district court specifically stated the

upward variance would “provide Mr. Lewis with an opportunity for rehabilitation

both in and out of prison.” Rec., vol. II at 70. Under § 3582(a) and Tapia, the

district court committed plain error when it imposed Mr. Lewis’s sentence in part

to promote his rehabilitation.

      In determining whether this error affected Mr. Lewis’s substantial rights,

“we ask only whether there is a reasonable probability that, but for the error

claimed, the result of the proceeding would have been different.” United States v.

Hasan, 526 F.3d 653, 665 (10th Cir. 2008) (internal quotation marks omitted).

“A reasonable probability is a probability sufficient to undermine confidence in

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the outcome.” Id. (internal quotation marks omitted). But “[t]he

reasonable-probability standard is not the same as, and should not be confused

with, a requirement that a defendant prove by a preponderance of the evidence

that but for error things would have been different.” United States v. Dominguez

Benitez, 542 U.S. 74, 83 n.9 (2004). Importantly, “[i]t is the defendant rather

than the Government who bears the burden of persuasion with respect to

prejudice.” United States v. Olano, 507 U.S. 725, 734 (1993).

      Mr. Lewis has not satisfied his burden of showing that the error affected his

substantial rights. While the district court admittedly mentioned rehabilitation as

one ground for imposing its sentence, Mr. Lewis has suggested nothing in the

record to indicate that, absent this error, the district court would have imposed a

lower sentence. Rather, the only time the court mentioned rehabilitation was in a

conclusory listing of the statutory purposes of sentencing set out in 18 U.S.C.

§ 3553(a)(2). See Tapia, 131 S. Ct. at 2387-88 (comparing purposes of

sentencing in § 3553(a)(2) with factors described in § 3582(a)(2) which may or

may not be considered in determining whether to impose a term of imprisonment

or the length of the term).

      Prior to the statement on which Mr. Lewis relies, the district court

discussed numerous valid reasons for the upward variance. First, the court

observed the seriousness of Mr. Lewis’s bank robberies. Although Mr. Lewis did

not use a weapon during the robberies, the court noted “[a]ll were committed

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during business hours while the bank was open for business. Innocent bank

employees and customers were present and in harm’s way.” Rec., vol. II at 65.

The court also noted Mr. Lewis admitted he had “terrified the tellers that he was

robbing.” Id.

      Second, the district court emphasized that besides pleading guilty to six

bank robberies, it was undisputed that Mr. Lewis was implicated in six additional

robberies for which he would pay restitution. The court expressed its concern

that a sentence “within the guideline range unreasonably depreciates the

seriousness of these multiple bank robberies.” Id. at 69. Moreover, the court

found that but for his arrest, it was more probable than not that Mr. Lewis would

have continued robbing banks.

      Third, the court noted that Mr. Lewis was disciplined for possessing a

dangerous weapon while in pretrial detention.

      Fourth, the court found that Mr. Lewis had no excuses for his behavior. It

observed that Mr. Lewis was bright and articulate, that he did not have a

disadvantaged childhood, that he had a disrespect for authority, and that he had

repeatedly tried to take shortcuts throughout his life, dropping out of high school,

college, and the military. While Mr. Lewis claimed he was forced to rob banks

after becoming unemployed, the court found there was “no credible evidence in

this record that the defendant spent any time seeking lawful gainful employment,”

id. at 68, nor had he made any efforts to apply for public benefits. The court’s

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conclusions about Mr. Lewis’s character are well supported by the presentence

investigation report.

      For all of these reasons, the district court concluded that a within-guideline

sentence “will not provide just or complete punishment for these six bank

robberies, will not promote but instead likely [will] undermine respect for the

law, will not provide or have the possibility to provide adequate deterrence, and

certainly will not provide adequate protection to the public.” Id. at 69. It was

only after making all of these findings that the court made its one reference to the

“opportunity for rehabilitation” as a reason for the variant sentence. Thus, this

case is unlike Tapia, where the Supreme Court expressed concern about the

district court’s several statements suggesting that it might have calculated the

length of the sentence in order to ensure access to rehabilitative services. Tapia,

131 S. Ct. at 2392-93. Nor is it like Cordery, 656 F.3d 1103. There, we

concluded the Tapia error affected the defendant’s substantial rights where the

district court had carefully explained that the sentence it was imposing needed to

be of a particular length in order to ensure eligibility for the Rehabilitative Drug

Abuse Program. Id. at 1108.

      Accordingly, on this record, we are not persuaded there is any reasonable

likelihood that the outcome would be different if we reversed Mr. Lewis’s

sentence and remanded the case to the district court for reconsideration based on

this error. Because we cannot say the error in this case affected Mr. Lewis’s

                                          -6-
substantial rights, we need not consider whether to exercise our discretion to

correct the error.

       Mr. Lewis also argues his sentence was substantively unreasonable. He

claims the district court improperly increased his sentence because his sentences

for past crimes had been lenient. Prior to his sentence in the instant case, Mr.

Lewis had served just one weekend in jail and had otherwise never been

imprisoned. He contends his past sentencing history does not support the district

court’s conclusion that an upward variance was needed for additional deterrence.

In his view, because he “has never been subject to the deterrent effect that a

meaningful prison term would carry,” there is no “reason to think that a quite

lengthy prison term is needed to deter him . . . .” Aplt. Br. at 17. Mr. Lewis

relies on the following statement of the district court about his prior offenses

when it denied his motion for a downward departure:

              The disposition[s] . . . of these prior offenses[] have been
       relatively lenient, perhaps too lenient. They consist largely of
       suspended sentences and probation, supervised and unsupervised.
       However, those disposition[s] for those crimes have clearly failed to
       deter or reform Mr. Lewis.

Rec., vol. II at 66-67. The court also explained in its judgment that it imposed a

variance, in part, because Mr. Lewis “was treated leniently in the past.” Rec.,

vol. I at 91.

       We review the substantive reasonableness of a sentence for abuse of

discretion. United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009). We

                                         -7-
give substantial deference to district courts, meaning that “a district court’s

sentence is substantively unreasonable only if it is arbitrary, capricious,

whimsical, or manifestly unreasonable.” Id. (internal quotation marks omitted).

“Unlike procedural reasonableness review, which focuses on the permissibility of

relying on a particular factor, substantive 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.’” Id. at 1118 (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). Although we may not apply a

presumption of unreasonableness where a sentence is outside the advisory

guideline range, we “may consider the extent of the deviation,” Gall, 552 U.S. at

51, and a “major departure should be supported by a more significant justification

than a minor one.” Id. at 50.

      In this case, we concede that the district court’s reasoning regarding prior

lenient sentences failing to deter Mr. Lewis is arguably curious. See, e.g., United

States v. Mishoe, 241 F.3d 214, 220 (2d Cir. 2001) (explaining that a shorter

sentence now “might be expected to have the requisite deterrent effect” where

defendant has previously served “no time or only a few months for the prior

offenses”); United States v. Qualls, 373 F. Supp. 2d 873, 877 (E.D. Wis. 2005)

(“Generally, a lesser period of imprisonment is required to deter a defendant not

previously subject to lengthy incarceration than is necessary to deter a defendant

who has already served serious time yet continues to re-offend.”) (emphasis

                                          -8-
added). Nonetheless, we cannot say that the district court’s resulting sentence

was “arbitrary, capricious, whimsical, or manifestly unreasonable.” Sayad, 589

F.3d at 1116. The court provided a reasoned analysis for why it viewed the

guidelines sentence as inadequate punishment for Mr. Lewis. Regardless of

whether the leniency Mr. Lewis previously received constitutes a logical reason

by itself to sentence Mr. Lewis for a longer period for the current crimes, the fact

that Mr. Lewis committed twelve bank robberies in a relatively short period of

time supports the need for deterrence. We conclude the district court did not

abuse its discretion in imposing a variant sentence of 120 months.

      For the foregoing reasons, we AFFIRM.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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