                                                                                FILED 1
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         December 19, 2014
                                     TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                      No. 14-3059
                                                  (D.C. No. 2:13-CR-20077-KHV-1)
    DEREK T. BROWNLEE,                                       (D. Kansas)

          Defendant - Appellant.




                                  ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.



         Defendant Derek Brownlee pleaded guilty to having committed a bank robbery on

July 1, 2013. See 18 U.S.C. § 2113(a). He appeals the substantive reasonableness of his



*
  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 This order and judgment is not binding precedent, except under the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. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm because he has not

overcome the presumption of reasonableness of his within-guidelines sentence.

       We begin with the guidelines calculation in Defendant’s presentence investigation

report (PSR). The base offense level for robbery is 20. See USSG § 2B3.1(a). The

offense level was increased by two levels because the robbery involved a financial

institution, id. § 2B3.1(b)(1), and by another three levels because Defendant possessed a

dangerous weapon (a hatchet) during the robbery, see id. § 2B3.1(b)(2)(E). Defendant’s

conduct while fleeing law-enforcement officers after the robbery—he ran red lights,

drove at high speeds (up to 90 miles per hour on the highway and 70 in residential areas),

almost collided with another vehicle, and struggled with an officer attempting to arrest

him (breaking free twice and tugging at the officer’s gun/holster during a third

struggle)—constituted reckless endangerment during flight, resulting in a further two-

level increase to 27. See id. § 3C1.2.

       This offense level was superseded, however, by an offense level of 32, based on

his being a career offender whose offense could be punished by a sentence of 20 years or

more. See id. § 4B1.1(b)(3). He qualified as a career offender because he was over 18

years old at the time of the robbery, the robbery was a crime of violence, and he had at

least two prior felony convictions of crimes of violence. See id. § 4B1.1(a). The offense

level was reduced three levels to 29 because he accepted responsibility and timely

notified authorities that he would plead guilty. See id. § 3E1.1.


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       Defendant’s criminal history included several Missouri convictions when he was

17 years old, an adult under Missouri law. On April 21 and May 10, 1995, he committed

robberies in Jackson County. Because he was arrested for both robberies on the same day

(May 18, 1995) and convicted of both robberies on the same day in the same county court

(June 13, 1996), the guidelines treat the convictions as one conviction for most purposes.

See id. § 4A1.2(a)(2). A third conviction for robbery, and for armed criminal action,

arose from conduct on May 8 and 10, 1995, in Cass County, for which Defendant was

arrested on March 26, 1996, and sentenced on August 26, 1996, in Cass County.

Defendant was sentenced to 10 years’ imprisonment for each of the three robbery

offenses and five years for the armed criminal action, with all sentences to run

concurrently.

       For these prior convictions, Defendant was assessed a total of eight criminal-

history points: (1) three for the April 21, 1995 robbery in Jackson County, see id.

§ 4A1.1(a) (three points for each prior prison sentence exceeding a year and a month);

(2) one for the May 10, 1995 robbery in Jackson County, see id. § 4A1.1(e) (one point for

each prior sentence for crime-of-violence conviction not scored as a separate sentence

under § 4A1.1(a)‒(c) because of § 4.A1.2(a)(2)); and (3) four for the Cass County

sentence for robbery and armed criminal action, see id. §§ 4A1.1(a), 4A1.1(e).

Defendant was paroled in 2004. From then until 2013 his only convictions were for

driving-related offenses—primarily driving with a suspended or revoked license. These

convictions added five more points to his criminal-history score.
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       Defendant’s criminal-history score of 13 placed him in criminal-history category

VI. He also belonged in criminal-history category VI because he is a career offender.

See id. § 4B1.1(b). With an offense level of 29 and criminal-history category of VI,

Defendant had a guidelines range of 151‒188 months. The statutory maximum sentence

was 20 years. See 18 U.S.C. § 2113(a).

       The PSR also reported evidence of two armed robberies and an attempted armed

robbery of another bank on three separate days during the month before his bank robbery

on July 1, 2013. DNA and other evidence linked Defendant to all three crimes, but no

robbery charges had been filed at the time Defendant was sentenced in this case, so the

conduct was not included in calculating the guidelines range.

       Defendant raised no objection to the PSR. The district court imposed a sentence

of 188 months, the high end of the guidelines range, rejecting Defendant’s argument that

the court should vary downward from the range calculated in the PSR. On appeal

Defendant does not contend that the court erred in calculating the guidelines range. He

argues that his sentence is unreasonable because the court “fail[ed] to account for the

arbitrary nature of qualification as a Career Offender, a criminal history category of VI

and an overreliance on uncharged conduct.” Aplt. Br. at 13.

       A sentence is substantively unreasonable if its length is “excessive given all the

circumstances of the case in light of the factors set forth in [18 U.S.C.] § 3553(a).”

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

omitted). These factors include “the nature and circumstances of the offense and the
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history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1); “the need for the

sentence imposed” to “reflect the seriousness of the offense,” “promote respect for the

law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal

conduct,” and “protect the public from further crimes of the defendant,” id. § 3553(a)(2);

and “the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct,” id. § 3553(a)(6). “Under a

deferential abuse-of-discretion standard, we deem a sentence unreasonable only if it is

arbitrary, capricious, whimsical, or manifestly unreasonable.” Gantt, 679 F.3d at 1249

(internal quotation marks omitted). We presume the reasonableness of a sentence within

the properly calculated guidelines range. See United States v. Sanchez, 725 F.3d 1243,

1253 (10th Cir. 2013).

       Defendant’s principal argument on appeal is that his career-offender status and

placement in criminal-history category VI result from a quirk of fate: If he had

committed his prior robberies in one Missouri county instead of two, he could have been

sentenced on all of them in the same court on the same day, instead of by different courts

on different days; and if that had happened, all his prior felony convictions would be

treated as one conviction under the guidelines provision for career offenders. See USSG

§§ 4B1.1(a), 4A1.2(a)(2). Invoking “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar conduct,”

Aplt. Br. at 18 (internal quotation marks omitted), Defendant argues that another

defendant who committed the same offenses but all in the same jurisdiction may have had
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a lower guidelines range of 92‒115 months. He also contends that his sentence is not

justified by the district court’s consideration of the facts stated in the PSR concerning the

two uncharged armed robberies and attempted armed robbery in the month before the

robbery in this case. He asserts that all defendants have similar uncharged misconduct in

their records and that “[a]nything short of a conviction” is not sufficiently reliable to be

considered. Aplt. Br. at 21.

       We are not persuaded. Defendant’s second argument fails because courts may

consider undisputed statements in the PSR concerning uncharged conduct when

determining an appropriate sentence. See United States v. Mateo, 471 F.3d 1162,

1166‒67 (10th Cir. 2006). And the district court explained why it thought the sentence

was appropriate. Interpreting Defendant’s argument as one that the guidelines

calculations “overrepresent the seriousness of his criminal history,” R., Vol. 2 at 52, it

concluded that the weight of defense counsel’s argument was “canceled out” by factors

not counted in the calculation—Defendant’s “one-man crime spree [in June 2013] . . .

involving armed bank robberies that are not scored in [his] criminal history calculations,”

and his being assessed only two points for reckless endangerment, id. at 57‒58.

       Defendant has not overcome the presumption that his within-guidelines sentence

was reasonable.




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We AFFIRM the district court’s sentence.

                                ENTERED FOR THE COURT


                                Harris L Hartz
                                Circuit Judge




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