                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 11, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 10-8072
 v.                                                      (D. of Wyo.)
 KENNETH GLIDEWELL, JR.,                      (D.C. No. 2:10-CR-00033-WFD-3)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **



      Kenneth Glidewell, Jr. pleaded guilty to illegally trafficking oxycodone in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Glidewell appeals his

sentence. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM.




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      In 2009, Glidewell joined an existing conspiracy to distribute oxycodone.

As part of the conspiracy, Glidewell’s mother, Anastasia Grillo, acquired

oxycodone under prescriptions issued to her for the treatment of pain. Grillo then

unlawfully sold the oxycodone to others, who distributed the drug in Wyoming.

During the conspiracy, some customers accrued drug debts to Grillo. For his part

in the conspiracy, Glidewell attempted to collect these debts, and he sought to

prevent customers from revealing the conspiracy to law enforcement.

      In March 2010, the United States charged Glidewell with one count of

conspiring to traffic oxycodone. Two months later, Glidewell pleaded guilty

pursuant to an agreement with the government. The plea agreement stipulated

facts supporting Glidewell’s proposed guilty plea and advised Glidewell of the

effects of the United States Sentencing Guidelines (USSG). The agreement

further provided that the government would dismiss a previously filed

information, urge the district to court grant Glidewell a four-offense-level

variance under 18 U.S.C. § 3553(a) to account for his minimal role in the

conspiracy, and recommend a three-level downward adjustment under USSG

§ 3E1.1 to reflect his acceptance of responsibility.

      At his change-of-plea hearing, Glidewell established he was competent to

proceed, he fully and adequately reviewed the indictment, and he knowingly and

voluntarily signed the plea agreement after thorough consultation with his lawyer.

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The court advised Glidewell about the sentencing guidelines and the fact that

although the court was bound to consider them, it was not legally required to

apply them in any given case. During the colloquy, Glidewell provided a factual

basis for his plea by admitting he was involved in his mother’s oxycodone

conspiracy.

      Under the USSG, Glidewell was a career offender subject to a base offense

level of 32, an adjusted offense level of 29, and a criminal history category of VI,

by virtue of the career offender guidelines. Accordingly, the presentence

investigation report’s recommended sentencing range was 151–188 months. At

sentencing, the court agreed that Glidewell was a minor participant in the drug

conspiracy and, in line with the government’s recommendation, granted him a

four-level downward variance based on the § 3553(a) factors. After the variance,

Glidewell’s total offense level was 25, and the resulting sentencing range was

110–137 months. After considering the § 3553(a) factors, the court sentenced

Glidewell to 110 months’ imprisonment, 3 years’ supervised release, and a $100

special assessment.

                                   II. Discussion

      Glidewell raises two challenges to his sentencing. First, he contends his

sentence is procedurally unreasonable because the district court failed to properly

consider the § 3553(a) factors. Second, he claims his 110-month sentence is

substantively unreasonable.

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      A. Procedural Reasonableness

      For a sentence to be procedurally reasonable, the sentencing court must

have appropriately considered the § 3553(a) factors. Gall v. United States, 552

U.S. 38, 49–50 (2007). Glidewell contends the district court erred by not

properly considering “the nature and circumstances of the offense,” under

§ 3553(a)(1), and the need to avoid unwarranted sentencing disparities among

similarly situated defendants, under § 3553(a)(6).

      Because Glidewell did not object to the district court’s § 3553(a) analysis,

we review only for plain error. 1 See Fed. R. Crim. P. 52(b); United States v. Poe,

556 F.3d 1113, 1128 (10th Cir. 2009). Under plain error review, we may not

reverse unless we find “(1) error, (2) that is plain, and (3) that affects substantial

rights. If all three conditions are met, [we] may then exercise [] discretion to

notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” United States v.

Balderama-Iribe, 490 F.3d 1199, 1203–04 (10th Cir. 2007) (quotation omitted).

Glidewell bears the burden of demonstrating plain error. Id.

      In this case, we find no error at all. First, the district court clearly

considered the “nature and circumstances of the offense,” as required by


      1
         At sentencing, the judge specifically asked Glidewell’s counsel: “[H]ave
I addressed all the matters that needed to be addressed under 3553(a)?” R., Vol.
III at 158. Glidewell’s counsel responded: “I believe so, Your Honor. Thank
you.” Id.

                                           -4-
§ 3553(a)(1). At the sentencing hearing, both Glidewell and the government

spent considerable time discussing Glidewell’s minimal role in the conspiracy.

And as explained, the district court agreed with the parties’ characterization of

Glidewell’s role and granted a four-level downward variance. This suggests the

court directly and specifically considered “the nature and circumstances of the

offense.” § 3553(a)(1).

      Second, the district court did not err in failing to compare Glidewell’s

sentence to those of his codefendants. Section 3553(a)(6) “does not require the

sentencing court to compare the sentences of codefendants; rather, it looks to

uniformity on a national scale.” United States v. Ivory, 532 F.3d 1095, 1107

(10th Cir. 2008). Glidewell has not made any suggestion that his sentence is

disparate vis-a-vis similarly situated defendants nationwide. And although the

district court did not specifically reference § 3553(a)(6), it was not required to do

so. “We do not require a ritualistic incantation to establish consideration of a

legal issue, nor do we demand that the district court recite any magic words to

show us that it fulfilled its responsibility to be mindful of the factors that

Congress has instructed it to consider.” United States v. Kelley, 359 F.3d 1302,

1305 (10th Cir. 2004) (quotation omitted). In this vein, it is generally sufficient

for a court to address the § 3553(a) factors “en masse” in connection with

explaining its justification for the sentence imposed. Id.; United States v. Burdex,

100 F.3d 882, 886 (10th Cir. 1996).

                                           -5-
      Accordingly, the record reflects the district court’s careful consideration of

the § 3553(a) factors.

      B. Substantive Reasonableness

      We review the substantive reasonableness of a defendant’s sentence for

abuse of discretion. See United States v. Mancera-Perez, 505 F.3d 1054, 1058

(10th Cir. 2007). Under this deferential standard, we may overturn Glidewell’s

sentence only if the district court’s decision was “arbitrary, capricious, whimsical,

or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307

(10th Cir. 2009) (quotation omitted). In this regard, we assess whether

Glidewell’s sentence is reasonable “given all the circumstances of the case in

light of the factors set forth in 18 U.S.C. § 3553(a).” Id. (quotation omitted).

      Glidewell contends his 110-month sentence is substantively unreasonable

because (1) given his peripheral role in the drug conspiracy, he should have

received a less onerous sentence; (2) the district court overweighted his

significant criminal history; and (3) his sentence is disproportionately severe in

comparison to sentences received by other, more culpable participants in the drug

conspiracy.

      Glidewell’s arguments are unavailing. A sentence within a properly

calculated guidelines range is presumed to be reasonable. United States v.

Verdin-Garcia, 516 F.3d 884, 898 (10th Cir. 2008). Glidewell’s sentence was

outside the guideline range—but this worked to his advantage. Indeed,

                                         -6-
Glidewell’s 110-month sentence was significantly below his 151–188 month

guideline sentencing range. The court credited Glidewell’s marginal participation

in the criminal scheme to arrive at this lower sentence, despite Glidewell’s

criminal history category of VI and the fact that the career offender guidelines do

not provide courts a mechanism to account for a defendant’s minimal

participation in a drug offense. USSG §§ 4B1.1(a) and (b). This was not an

abuse of discretion.

      We also find no evidence that the district court abused its discretion by

taking into consideration Glidewell’s extensive criminal history, given that

Congress made criminal history an explicit component of the USSG. Finally, the

court did not abuse its discretion by failing to adjust Glidewell’s sentence so as to

eliminate sentencing disparities between him and his codefendants. As explained

above, although a sentencing court is permitted to account for sentencing

disparities among codefendants, it is not required to. Ivory, 532 F.3d at 1107.

                                  III. Conclusion

      For the reasons stated above, we AFFIRM Glidewell’s sentence.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Circuit Judge




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