                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS                     June 13, 2008
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-1464
          v.                                         District of Colorado
 KEITH LEON GARRETT,                          (D.C. No. 1:03-CR-00301-MSK)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Keith Leon Garrett, who prefers to be known as Mr. Alex, pled guilty in

federal court to being a felon in possession of a firearm. The district court

sentenced him to 70 months in prison, the bottom of the guidelines range of

70–87 months. Mr. Garrett acknowledges that the court correctly calculated the

guidelines range, but contends that his sentence is unreasonable because the

district court did not account for his history of drug abuse. We review the


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
sentence for abuse of discretion, United States v. Angel-Guzman, 506 F.3d 1007,

1014–15 (10th Cir. 2007), and affirm.

      In May, 2003, officers assigned to a joint federal-state “Gun Interdiction

Unit” learned that a cocaine dealer known as “KK” was living in Colorado

Springs, Colorado. Eventually identifying “KK” as Mr. Garrett, the officers

discovered that he had several outstanding arrest warrants, and obtained a search

warrant for his residence. There, the police found a .22 caliber semi-automatic

handgun, crack cocaine, and several bills with Mr. Garrett’s name on them. Mr.

Garrett has a lengthy criminal record and was charged with being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1), and pled guilty.

      The Presentence Investigation Report (PSR) calculated Mr. Garrett’s

criminal history as V and his total offense level as 21, producing a Guidelines

range of 70–87 months. Mr. Garrett made no objections to its factual content or

the guidelines calculation, but filed objections arguing that his criminal history

was overrepresented and should be reduced to IV, and that he should receive a

variance because his “entire criminal history is driven by his drug and alcohol

abuse and his inability to control the abuse and his behavior when he is not in

custody,” and thus “[a] 57 month sentence will better meet the § 3553(a) factors

than a 70 month sentence.” Def. Objections to PSR, at 2.

      At sentencing, the district court recognized its discretion to vary from the

guidelines, but chose not to, explaining:

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      We have an extensive criminal history, one that is plagued by drug
      and alcohol abuse, no apparent recognition of that problem, and no
      apparent commitment to addressing it. We have an accelerating
      criminal pattern with the danger of increased violence. Under these
      circumstances, I am disinclined to impose a variant sentence,
      believing that the seriousness of the offense and the need to
      adequately deter criminal conduct, as well as to protect the public
      from further crimes by this defendant, as well as to provide this
      defendant with needed educational or vocational training, medical
      care, or other correctional treatment suggests that the guideline range
      is appropriate.

R. Vol. III, at 16–17.

      As best we understand it, Mr. Garrett’s appellate brief raises two challenges

to his sentence, one procedural, and one substantive. See United States v.

Zamora-Solorzano, ___ F. 3d ___, No. 07-3205, 2008 WL 2035476, at *2 (10th

Cir. May 13, 2008) (distinguishing procedural and substantive challenges). His

procedural challenge is that the district judge sentenced him under a mistaken

apprehension of fact and law. At sentencing, the court complained that it had

“heard no mention” of a “drug rehabilitation program called RDAP” (residential

drug abuse treatment program) run by the Bureau of Prisons, and strongly

recommended that the defendant participate in it. R. Vol. III, at 17. In fact, Mr.

Garrett had mentioned the program in his objections to the PSR, claiming that

“[t]he defendant will not be eligible for the RDAP program early release” as one

reason to grant a variance. Def. Objections to PSR, at 2.

      Mr. Garrett and the district court were talking past one another. On appeal,

Mr. Garrett fails to distinguish between two things—the drug treatment program

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itself and the early release available to some participants in the program. As the

PSR recognizes, the defendant may be eligible to participate in the drug-treatment

elements of the RDAP, and although the decision is ultimately up to the Bureau of

Prisons the district judge “recommend[ed] . . . that they allow him to participate.”

R. Vol. III, at 17. He will not be eligible, however, to a year’s early release if he

performs well. A Bureau of Prisons regulation denies early release to those

convicted of Mr. Garrett’s offense. See 28 C.F.R. § 550.58(a)(1)(vi)(B), upheld

by Lopez v. Davis, 531 U.S. 230, 232–33 (2001). We discern no reason that

ineligibility for early release makes him ineligible for the program itself. See

Hobbs v. Rios, 215 Fed. App’x. 773, 774 (10th Cir. 2007) (defendant “approved

to participate in the [RDAP] but was advised he would not be eligible for a

sentence reduction under 18 U.S.C. § 3621(e).”); Berchiolly v. Terrell, 202 Fed.

App’x. 330, 331 (2006) (10th Cir. 2006) (same). So the district judge was not

wrong in thinking that Mr. Garrett was potentially eligible for drug-treatment, and

at worst spoke loosely when saying that Mr. Garrett had not mentioned the

program, since the objection had mentioned only eligibility for “RDAP program

early release,” not the program itself. This is not a procedural error.

      Mr. Garrett’s substantive argument is that his sentence is too long, and that

18 U.S.C. § 3553(a) mandates a downward variance in light of his drug problems.

Because his “sentence was within the Guidelines range, . . . we accord it a

presumption of reasonableness.” United States v. Thompson, 518 F.3d 832, 869

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(10th Cir. 2008). Mr. Garrett’s references to his drug problems are insufficient to

overcome the presumption. We therefore defer to the district court’s discretion in

fixing the length of the sentence.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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