                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                 UNITED STATES COURT OF APPEALS                              May 16, 2007

                                 TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                             Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                           No. 05-1518
 v.                                                 (D.C. No. 05-cr-104-W YD)
                                                           (Colorado)
 JIM M Y W AYNE M AHAN, JR.,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before TA CH A, Chief Judge, SEYM OUR, and R OBIN SO N, Circuit Judges.




      Jimmy W ayne M ahan Jr. pled guilty to possession of a firearm by a

prohibited person in violation of 18 U.S.C. 922(g)(1) and was sentenced to 77

months imprisonment. On appeal, he challenges the reasonableness of his

sentence. Because we conclude his sentence was procedurally unreasonable,

we vacate it and remand for re-sentencing.

      On October 16, 2004, the police were informed that a man, later

identified as M r. M ahan, possessed a gun in the parking lot of a fast food



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
restaurant. On arrival, the police discovered M r. M ahan in possession of an

unloaded shotgun with a barrel length of less than 16 inches and an obliterated

serial number. He asserted that immediately prior to his arrest, three men

severely beat him in the same parking lot. He claimed that following the

beating, he drove home, retrieved the unloaded shotgun, and quickly returned

to the parking lot with the weapon. He was then seen in the parking lot with

the shotgun. The police arrested M r. M ahan.

      M r. M ahan pled guilty to being a felon in possession of a firearm.

Prior to sentencing, the United States Probation Office developed an

individualized presentence report (PSR). The PSR assigned a base offense

level of 22, added 2 additional levels for the involvement of a sawed off

shotgun, and applied a reduction of 3 levels for acceptance of responsibility

for a total offense level of 21. Combining this base level with his criminal

history category of VI, the PSR generated a corresponding guidelines

sentencing range of 77 to 96 months.

      At sentencing M r. M ahan sought a below guidelines sentence.

Specifically, he attempted to convince the court to impose such a sentence in

light of the factors set forth in 18 U.S.C. § 3553(a). He noted his history of

mental health issues, including bipolar disorder and “schizophrenic

diagnoses,” rec., vol. III at 8, and his inability to afford appropriate medication

at the time of the incident. See U.S.C. § 3553(a)(1) (“the court . . . shall

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consider . . . the history and characteristics of the defendant.”). In an effort

to favorably characterize “the nature and circumstances of the offense,” 18

U.S.C. § 3553(a)(1), his counsel described how he had retrieved an unloaded

gun to protect his wife following a violent beating. 1 As to M r. M ahan's

discussion of his mental health issues, the district court remarked that none of

the mental health “factors take this case outside of the heartland of cases.”

Rec., vol. III at 21. In response to M r. M ahan’s discussion of the facts

surrounding his crime, the district court stated that “this offense, in many

respects, is a strict-liability offense . . . the reasons why [M r. M ahan] had the

weapon . . . aren't something the Court can consider” in determining his

sentence. Rec., vol. III at 18. The court described such concerns as

“extraneous factors,” and noted the “law as a matter of policy has said that . . .

irrespective of the reasons w hy the weapon was obtained, [individuals w ith

felony convictions] need to know that [they] just can't have a weapon.” Id.

      The district court concluded that “the sentencing factors under . . . 18

U.S.C. § 3553(a) require me to look at the sentencing factors in the statute as

well as the advisory Guidelines range. And the Court finds that the sentence




      1
         See Rec., vol III at 9 (He was not “carrying it so he can comm it another
crime. Not carrying it in conjunction with some kind of drug-associated offense
. . . basically . . . [h]e gets pounded, wants to make sure that it stops, and then . . .
comes back to the scene with . . . this gun.”)

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within the advisory Guideline range is a reasonable sentence . . . .” 2 Id. at 21.

The court sentenced M r. M ahan to 77 months imprisonment, a term at the

bottom of the recommended guidelines range.

      M r. M ahan contends the district court failed to appropriately apply the §

3553(a) factors by refusing to consider the circumstances of his crime and his

history of mental illness, and by using the appellate “reasonableness” standard

to evaluate the appropriateness of his guidelines sentence. Because we agree

with M r. M ahan’s first proposition, we need not consider the second.

      Following United States v. Booker, 543 U.S. 220 (2005), we evaluate

sentences imposed by the district court for reasonableness. United States v.

Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “To determine w hether a

sentence is reasonable, we consider both procedural and substantive aspects of

the district court's decision.” United States v. M ateo, 471 F.3d 1162, 1166

(10th Cir. 2006). To satisfy Booker's procedural requirements, “the sentencing

factors set forth in 18 U.S.C. § 3553(a) must be considered by the district

court itself when imposing a sentence.” United States v. Sanchez-Juarez, 446

F.3d 1109, 1115 (10th Cir. 2006). Specifically, “where a defendant has raised

a nonfrivolous argument that the § 3553(a) factors warrant a below-



      2
       The district court left no doubt that it considered the guidelines as
advisory. See Rec., vol. III at 21 (“The Court, while not bound to apply the
Guidelines, has consulted the advisory Guidelines and taken them into account,
along with the sentencing factors found at 18 U.S.C. 3553(a).”).

                                         -4-
Guidelines sentence and has expressly requested such a sentence, we must be

able to discern from the record that the sentencing judge . . . considered

whether the guidelines sentence actually conforms, in the circumstances, to the

statutory factors.” Id. at 1117 (quotation marks and brackets omitted). W e

note that a presumption of reasonableness applies only to claims of substantive

reasonableness; we do not apply this presumption when evaluating procedural

reasonableness. See United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir.

2007) (presumption not applied where “revers[ing] on procedural

reasonbleness” alone); United States v. M cCullough, 457 F.3d 1150, 1171

(10th Cir. 2006) (describing Kristl presumption as “that presumption of

substantive reasonableness”) (emphasis added); United States v. Galarza-

Payan, 441 F.3d 885, 888-89 (10th Cir. 2006) (applying presumption to

substantive but not procedural reasonableness analysis).

      District courts must consider the 18 U.S.C. § 3553(a) factors in applying

a sentence that is “sufficient, but not greater than necessary” to fulfill the aims

of those factors. Id. Among other factors, § 3553(a)(1) requires the court to

consider “the nature and circumstances of the offense” when developing an

appropriate sentence. Following M r. M ahan’s description of how and why he

came to possess the gun, the district court said “the reasons why you had the

weapon . . . aren't something the Court can consider,” because possession of a

firearm by a felon is a strict liability offense. Rec., vol. III at 18. The district

                                         -5-
court further labeled as “extraneous factors” M r. M ahan's reasons for

possessing the gun and acknowledged such information would have no bearing

on its determination of M r. M ahan's sentence.

      The district court was correct that mens rea is not relevant in

determining if an individual is guilty of a strict liability crime. However, in

determining the appropriate sentence for one guilty of such a crime, the court

must consider the factors set forth in § 3553(a), including the nature and

circumstances of the offense. W e find nothing in § 3553(a) to suggest that the

“circumstances of the offense” factor exclusively applies to crimes requiring a

mens rea or that this factor is to be specially excluded when arriving at a

sentence for a strict liability crime. In fact, we have previously stated that the

district court is required to consider all § 3553(a) factors when sentencing an

individual for the same strict liability crime presented in this case. See United

States v. M ateo, 471 F.3d 1162, 1163 (10th Cir. 2006).

      As a result, the question is simply whether the information the district

court refused to consider was in fact a “circumstance” of the crime as defined

by § 3553(a). At sentencing, M r. M ahan’s counsel explained the events

leading up to M r. M ahan’s unlawful possession, including being the target of

an alleged assault leading him to retrieve an unloaded weapon that could have

been used as a “club” for the protection of himself and his wife. See Rec., vol

III at 9-10. The court appeared to disregard all of these facts in determining

                                        -6-
M r. M ahan’s sentence, notwithstanding they were surely circumstances of the

crime. See W ebster's Third New International Dictionary 410 (1981) (defining

circumstance as “a specific part, phase or attribute of the surroundings or

background of an event”). The court's broad invocation of § 3553(a), see rec.,

vol. III at 21 (“The Court . . . has consulted and . . . taken . . . into account

. . . the sentencing factors found at 18 U.S.C. 3553(a).”), cannot displace its

earlier unequivocal statement that it would not consider the background facts

of M r. M ahan’s crime.

      As we noted in Sanchez-Juarez, 446 F.3d at 1117, “our appellate role

encompasses a limited inquiry into whether the district court did in fact

exercise its discretion based on the 3553(a) factors . . . .” Having performed

this limited inquiry, we conclude the district court failed to consider the

“circumstances” of the crime, and thus did not exercise its post-Booker

discretion in accordance with all of the § 3553(a) factors. 18 U.S.C. §

3553(a)(1). Accordingly, we VAC ATE M r. M ahan’s sentence and REM AND

to the district court for re-sentencing.

                                           ENTERED FOR THE COURT


                                           Stephanie K. Seymour
                                           Circuit Judge




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