                                                                                   FILED
                      UNITED STATES COURT OF APPEALS                   United States Court of Appeals
                                                                               Tenth Circuit
                             FOR THE TENTH CIRCUIT
                         _________________________________                  February 8, 2017

                                                                           Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                                      Clerk of Court
      Plaintiff - Appellee,

v.                                                          No. 16-1337
                                                  (D.C. No. 1:15-CR-00279-RBJ-1)
MARK JACOB JONES,                                            (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Mark Jones pleaded guilty to one count of being a felon in possession of a

firearm. The district court imposed an 18-month prison sentence and ordered it

served consecutively to Jones’ previous 126-month prison sentence for aggravated

identity theft and mail fraud. Jones argues the district court abused its discretion in

ordering his 18-month sentence be served consecutively to, rather than concurrently

with, the 126-month sentence. Finding no abuse of discretion, we affirm.



      *
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th
Cir. R. 32.1.
      On appeal, Jones generally argues that the district court’s decision to impose a

consecutive sentence rests on its unreasonable weighing of the 18 U.S.C. § 3553(a)

factors. See 18 U.S.C. § 3584(b) (explaining that in deciding whether to impose

consecutive or concurrent sentence, sentencing court “shall consider, as to each

offense for which a term of imprisonment is being imposed, the factors set forth in

section 3553(a)”).

      By attacking the district court’s weighing of the § 3553(a) factors, Jones

challenges the substantive reasonableness of his sentence. See United States v. Lente,

759 F.3d 1149, 1156 (10th Cir. 2014). When reviewing the substantive

reasonableness of a sentence, we look to “whether the district court abused its

discretion in weighing permissible § 3553(a) factors in light of the totality of the

circumstances.” Id. at 1157–58 (quoting United States v. Sayad, 589 F.3d 1110, 1118

(10th Cir. 2009)). “Under this standard, we will ‘deem a sentence unreasonable only

if it is arbitrary, capricious, whimsical, or manifestly unreasonable.’” Id. at 1158

(quoting United States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012)).

      Jones first argues that the court placed too much emphasis on the fact that he

possessed the firearm. Jones argues that the court’s concerns regarding adequate

punishment, deterrence, and community safety were “misdirected” because “he

already knew he was not supposed to possess a firearm” and the “gun belonged to his

wife, and she alone had purchased it and brought it to Colorado.” Aplt. Br. 7. But

Jones pleaded guilty to illegally possessing the firearm, not purchasing it, and the

district court expressly addressed these same arguments when explaining the weight

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it placed on the possession under § 3553(a). Moreover, as the court pointed out, the

illegal firearm possession was unrelated to the charges underlying the 126-month

sentence. Thus, the court reasoned, the firearm-possession sentence would have no

deterrent effect on Jones if the court ordered it to be served concurrently with that

sentence. Jones doesn’t dispute that this is a valid basis for imposing a consecutive

sentence.

       Next, Jones argues that the district court insufficiently weighed his personal

characteristics, including his health issues and need for medical care. But the record

reflects that the court specifically considered his health, age, and the length of his

126-month sentence as mitigating factors in imposing a below-guidelines sentence.

And we see nothing to indicate that the weight the court placed on Jones’ health

issues was unreasonable under the circumstances.

       Finally, Jones argues that the court didn’t give “appropriate weight to the

policy statement in U.S.S.G. § 5G1.3(d).” Aplt. Br. 8. See 18 U.S.C. § 3553(a)(5)

(listing pertinent Sentencing Commission policy statements as sentencing factor);

U.S.S.G. § 5G1.3(d), cmt. n.4(A) (providing additional considerations for

determining whether to impose sentence concurrently, partially concurrently, or

consecutively to undischarged term of imprisonment). Specifically, Jones argues that

the court “gave minimal weight” to the length of his undischarged 126-month

sentence, the fact that his unlawful possession of the firearm was a victimless crime,

his ailing health, and the fact that he “assured the court there is no risk of a repeat

violation.” Aplt. Br. 9. Again, we see nothing in the record to indicate—or even

                                             3
intimate—that the court unreasonably weighed the policy statement in determining

whether Jones’ particular circumstances warranted imposing a consecutive or

concurrent sentence. Instead, as the government notes, the court weighed the policy

statement “and simply struck a different balance than Jones would have liked.”

Aplee. Br. 13.

      We see nothing in the record to suggest the district court abused its discretion.

Because Jones’ 18-month consecutive sentence is reasonable under the

circumstances, we affirm.




                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




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