                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                             April 22, 2014
                                 PUBLISH                  Elisabeth A. Shumaker
                                                              Clerk of Court
                   UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                 No. 13-4097
 TINA PATRICIA WISEMAN,

       Defendant-Appellant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                  (D.C. No. 2:12-CR-00395-RJS-2)


Submitted on the briefs:

James C. Bradshaw and Ann Marie Taliaferro of Brown Bradshaw & Moffat,
L.L.P., Salt Lake City, Utah, for Defendant-Appellant.

David B. Barlow, United States Attorney, and Dave Backman, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.


Before BRISCOE, Chief Judge, EBEL and MATHESON, Circuit Judges.


BRISCOE, Chief Judge.
      This is a direct appeal by Tina Patricia Wiseman following her guilty plea

to one count of conspiring to distribute oxycodone, in violation of 21 U.S.C. §§

841, 846. The district court calculated her guideline range to be 57-71 months,

but sentenced her to a below-range sentence of 48 months. Wiseman argues on

appeal that the district court committed procedural error by refusing to consider

the disparity between her sentence and similarly situated defendants sentenced in

Utah state court. She sought a downward variance with a resulting sentence of a

short prison term, if not probation. We agree with the district court’s conclusion

that 18 U.S.C. § 3553(a)(6) authorizes consideration of disparate sentences among

and between federal defendants, and does not require the court to also consider

sentences received by similarly situated state court defendants. We affirm. 1

      I. BACKGROUND

      On July 18, 2012, Tina Wiseman and Jacob Morfin were both charged with

one count of conspiracy to distribute oxycodone, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(C), and 846. They had engaged in a conspiracy to obtain

oxycodone using falsified prescriptions. The pills were typically split among the

conspiracy participants, most of whom were active addicts, including Wiseman.

Wiseman accepted a plea agreement in which she agreed to plead guilty, and the


      1
         After examining the brief 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). The case is,
therefore, submitted without oral argument.

                                         2
government agreed to recommend two sentence reductions. Morfin also pleaded

guilty and was sentenced to 48 months.

      Although 3,240 oxycodone pills were obtained through the efforts of the

conspiracy, the Presentence Report (“PSR”) considered only 1,080 pills when

calculating Wiseman’s base offense level. The PSR recommended a three level

downward adjustment for acceptance of responsibility and included no

enhancements. Wiseman had prior state convictions for attempted possession

with intent to distribute and possession of a controlled substance, and she was

serving two separate state probation terms for these felony drug offenses when

she engaged in the conspiracy at issue. Her criminal history category was III, and

her guideline range was 57-71 months. Although probation is authorized by 18

U.S.C. § 3561, a sentence of probation was not within her resulting sentencing

guideline range.

      Wiseman filed a motion for a downward variance based on the 18 U.S.C. §

3553(a) factors. 2 Wiseman did not contest the guideline range set forth in the

PSR, but she argued for a sentence of probation with the opportunity to

participate in a rehabilitative drug program. Wiseman asked the district court to



      2
        We have previously clarified that a “departure” is the result of applying
Chapters Four or Five of the Sentencing Guidelines, whereas a “variance” is the
result of applying the § 3553(a) factors. United States v. Atencio, 476 F.3d 1099,
1101 n.1 (10th Cir. 2007), overruled in part on other grounds by Irizarry v. United
States, 553 U.S. 708, 713 n.1 (2008).

                                         3
apply § 3553(a)(6) to consider the sentencing disparity between her guideline

range and similarly situated state court defendants in Utah. Wiseman repeatedly

argued this comparison was appropriate because this type of crime is typically

prosecuted in state court where lesser sentences are imposed.

      The district court held a sentencing hearing and, after hearing arguments

from both parties, the court addressed the § 3553(a) sentencing factors. The court

found that Wiseman’s crime was “a very serious offense,” with over 3,200 pills

involved in the conspiracy, and it was her “third serious drug related interaction

with the courts.” R. Vol. III at 45-46, 48-49. Although Wiseman’s personal

history warranted a variance below the guideline range, the court concluded that a

prison sentence was still appropriate to promote deterrence and respect for the

law. Id. at 46-47. In further response to the sentencing disparity argument, the

court noted the goal of “consistency in sentencing for the most similar behavior”

would in this instance focus upon Wiseman’s co-defendant, Morfin, id. at 49-50,

who had received a 48 month sentence, id. at 18. The court therefore rejected

Wiseman’s request for probation and sentenced her to 48 months in prison,

followed by 36 months of supervised release. The court also imposed a drug

testing requirement during her supervised release.

      II. ANALYSIS

      Wiseman argues the district court committed procedural error because it did

not acknowledge it had authority to consider the disparity between sentences

                                          4
imposed in state court when compared to sentences imposed in federal court for

similarly situated offenders. The reasonableness of a sentence is reviewed under

an abuse of discretion standard. United States v. Gordon, 710 F.3d 1124, 1160

(10th Cir. 2013). “‘[W]e review the district court’s legal conclusions de novo and

its factual conclusions for clear error.’” Id. (quoting United States v. Gallant, 537

F.3d 1202, 1234 (10th Cir. 2008)). “‘Procedural review asks whether the

sentencing court committed any error in calculating or explaining the sentence.’”

Id. (quoting United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.

2008)). This includes “‘whether the district court incorrectly calculated . . . the

Guidelines sentence, treated the Guidelines as mandatory, failed to consider the §

3553(a) factors, relied on clearly erroneous facts, or failed to adequately explain

the sentence.’” United States v. Haggerty, 731 F.3d 1094, 1098 (10th Cir. 2013)

(quoting United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)).

      Wiseman argues that the disparity between her federal sentence and what

she would have received had she been sentenced in state court is a permissible

consideration under 18 U.S.C. § 3553(a)(6), which requires the district court, “in

determining the particular sentence to be imposed,” to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” 18 U.S.C. § 3553(a), (a)(6). Wiseman

argues the plain language of the statute, with its general reference to “defendants”

should be read to include consideration of state defendants. According to

                                          5
Wiseman, “[i]f Congress intended to limit the consideration to only federal

defendants, it knew how to do so.” Appellant’s Br. at 17.

      This court has previously rejected this argument:

             Sentencing courts must consider “the need to avoid
             unwarranted sentence disparities among defendants with
             similar records who have been found guilty of similar
             conduct.” 18 U.S.C. § 3553(a)(6). But this does not
             mean that a sentence calculated under the Guidelines is
             unreasonable simply because it is harsher than a state-
             court sentence would be for a comparable crime.
             Federal and state authorities have concurrent jurisdiction
             over various offenses and may apply disparate
             punishments to similar conduct. Adjusting federal
             sentences to conform to those imposed by the states
             where the offenses occurred would not serve the
             purposes of § 3553(a)(6), but, rather, would create
             disparities within the federal system, which is what §
             3553(a)(6) is designed to discourage. As the Fourth
             Circuit said in reversing a sentence that apparently
             considered state/federal sentencing disparities, “The sole
             concern of section 3553(a)(6) is with sentencing
             disparities among federal defendants. . . . The
             Guidelines [seek] to avoid only the unwarranted
             disparities that exist [] in the federal criminal justice
             system, that system for which the Guidelines are
             governing law.” United States v. Clark, 434 F.3d 684,
             687 (4th Cir. 2006).

United States v. Branson, 463 F.3d 1110, 1112-13 (10th Cir. 2006) (emphasis in

original).

      While Wiseman fully acknowledges this prior precedent, she argues

Branson is not controlling:

             Branson, however, did not engage in any type of
             statutory analysis of §3553(a)(6) to support its finding

                                          6
             that Congress intended the consideration to apply only
             amongst federal defendants. Further, Branson pre-dates
             Rita, Gall, Kimbrough, and Spears, which opened the
             door for district courts to consider any number of factors
             in varying from an advisory Guideline range, including
             pure policy arguments and categorical disagreement with
             the guideline range. For these reasons, Branson should
             not be read to preclude a district court’s ability to
             consider unwarranted sentencing disparities between an
             advisory federal sentence and the sentences of like
             offenders in the state system.

Appellant’s Br. at 22. But Wiseman provides little analysis and cites no authority

that would permit this panel to overrule or distinguish Branson. See United

States v. DeVaughn, 694 F.3d 1141, 1149 n.4 (10th Cir. 2012) (“We cannot, of

course, overturn the decision of another panel of this court barring en banc

reconsideration, a superseding contrary Supreme Court decisions, or authorization

of all currently active judges on the court.” (quotation omitted)).

      Wiseman cites cases that have allowed district courts to vary from

guideline sentences based on policy disagreements with the guidelines. See

Spears v. United States, 555 U.S. 261, 265-66 (2009); Kimbrough v. United

States, 552 U.S. 85, 109-10 (2007); Gall v. United States, 552 U.S. 38, 51 (2007);

Rita v. United States, 551 U.S. 338, 351 (2007). Given that district courts can

vary based on policy disagreements with the guidelines, Wiseman seeks to extend

that sentencing authority by asserting that “a district court is empowered to

consider how the calculated [g]uideline sentence promotes an unwarranted

disparity between similar defendants, with similar backgrounds, who engaged in

                                          7
similar conduct–whether in the federal or state system.” Appellant’s Br. at 19.

The Kimbrough line of cases do not, however, conflict with Branson as they do

not provide a different statutory interpretation of § 3553(a)(6) or otherwise

counsel a different result. They simply state that the guidelines are advisory and

that district courts have the authority to deviate from guideline sentences based on

policy considerations, including disagreements with the guidelines. Spears, 555

U.S. at 265-66 (agreeing that the correct interpretation of Kimbrough is that a

district court may vary from a guideline crack cocaine sentence “based solely on

its view that the 100-to-1 ratio embodied in the sentencing guidelines for the

treatment of crack cocaine versus powder cocaine creates an unwarranted

disparity within the meaning of § 3553(a), and is at odds with § 3553(a)”

(quotation omitted)); Kimbrough, 552 U.S. at 110 (“[I]t would not be an abuse of

discretion for a district court to conclude when sentencing a particular defendant

that the crack/powder disparity yields a sentence ‘greater than necessary’ to

achieve § 3553(a)’s purposes, even in a mine-run case.”); Gall, 552 U.S. at 51

(“[I]f the sentence is outside the Guideline range, the [appellate] court may not

apply a presumption of unreasonableness. It may consider the extent of the

deviation, but must give due deference to the district court’s decision that the §

3553(a) factors, on a whole, justify the extent of the variance.”); id. at 58-59

(rejecting circuit court’s conclusion that a below-guideline sentence of probation

“for participation as a middleman in a conspiracy distributing 10,000 pills of

                                          8
ecstacy ‘lies outside the range of choice dictated by the facts of the case’”

because the sentencing guidelines are not mandatory and “the Guidelines are only

one of the factors to consider when imposing sentence, and § 3553(a)(3) directs

the judge to consider sentences other than imprisonment”); Rita, 551 U.S. at 351

(stating that district court judges “may hear arguments by prosecution or defense

that the Guidelines sentence should not apply, perhaps because . . . the Guidelines

sentence itself fails properly to reflect § 3553(a) factors”).

       The Kimbrough line of cases does not apply here. Their underlying

concern is that the guidelines may not always represent the proper balance of the

§ 3553(a) factors. However, the district court judge in this case believed that a

prison sentence was necessary because of the § 3553(a) factors, taken together.

See R. Vol. III at 45-50; id. at 45 (“On the first point, the nature and

circumstances of this offense, I side entirely . . . with [the prosecutor]. . . . I think

the circumstances of this offense, while borne out of Ms. Wiseman’s addiction,

are serious.”); id. at 47 (“I agree with [the prosecutor] . . . that given the

seriousness of this kind of conduct and behavior, there’s a requirement that I

impose a sentence that promotes respect for the law.”); id. (“I think that in federal

court a sentence – a prison sentence is required to provide a deterrence and to

promote respect for the law . . . .”); id. at 49 (concerning the unwarranted

disparity question, “there is a third consideration . . . which is consistency in

sentencing for the most similar behavior, and in this instance that’s probably Mr.

                                            9
Morfin is our guidepost”). Further, as stated above, we have previously held in

Branson that § 3553(a)(6) is only intended to apply to sentencing disparity among

and between similarly situated federal defendants. Thus, § 3553(a)(6) cannot be

used to support a downward variance based on the judge’s policy judgment that

drug sentences in federal court are too long when compared to state court

sentences. Perhaps other § 3553(a) factors could support a downward variance

here, but § 3553(a)(6) clearly cannot.

      The central argument of Wiseman’s appeal is that the district court

committed procedural error because it failed to consider § 3553(a)(6) when it

stated it did not have authority to consider state-federal disparities. But Wiseman

mischaracterizes the district court’s ruling. Here, the district court did consider §

3553(a)(6), but correctly understood its authority because § 3553(a)(6) applies

only when addressing sentencing disparities among and between federal

defendants sentenced under the federal sentencing guideline regime. See

Branson, 463 F.3d at 1112-13; see also United States v. Begin, 696 F.3d 405,

412-13 (3d Cir. 2012) (noting other circuit cases, including Branson, which stated

that § 3553(a)(6) is concerned with only federal disparities and holding that

“[s]tate-federal disparities are simply irrelevant under § 3553(a)(6)”); United

States v. Jeremiah, 446 F.3d 805, 808 (8th Cir. 2006) (holding that “the District

Court was neither required nor permitted under § 3553(a)(6) to consider a

potential federal/state sentencing disparity” during sentencing). For the district

                                          10
court’s ruling to be an error, state-federal disparities would have to be relevant

under § 3553(a)(6), but they are not. It cannot therefore be procedural error for

the district court to fail to consider an issue irrelevant to that factor. Even after

the rulings in Rita, Gall, Kimbrough and Spears, we remain convinced that

Branson is controlling as regards the interpretation of § 3553(a)(6).

      AFFIRMED.




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