                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 15, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 12-1399
                                               (D.C. No. 1:11-CR-00399-REB-1)
 BRANDON HENRY,                                          D. Colorado

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we

grant the parties’ requests and order the case submitted without oral argument.

      Brandon Henry pleaded guilty to a single count of bank robbery, in

violation of 18 U.S.C. § 2113(a). The district court sentenced Henry to a term of


      *
        This order and judgment is not binding precedent except under the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.
imprisonment of 105 months, a sentence within the range set out in the advisory

Sentencing Guidelines. On appeal to this court, Henry asserts the sentence

imposed by the district court is substantively unreasonable. This court exercises

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirms

the sentence imposed by the district court.

      Pursuant to the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), this court reviews sentences for reasonableness. United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). “Reasonableness review is a

two-step process comprising a procedural and a substantive component.” Id.

(quotation omitted). Henry, however, only challenges the substantive

reasonableness of his sentence. “Review for substantive reasonableness focuses

on whether the length of the 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). This court reviews the substantive reasonableness of a sentence under

an abuse-of-discretion standard. United States v. Sells, 541 F.3d 1227, 1237 (10th

Cir. 2008). A sentence is substantively unreasonable only if the district court

“exceeded the bounds of permissible choice, given the facts and the applicable

law in the case at hand.” United States v. McComb, 519 F.3d 1049, 1053 (10th

Cir. 2007) (quotations omitted). That is, “[a] district court abuses its discretion

when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly




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unreasonable.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008)

(quotation omitted).

         [G]iven the district court’s institutional advantage over [this court’s]
         ability to determine whether the facts of an individual case justify a
         variance pursuant to § 3553(a) (given that the sentencing judge, for
         example, sees and hears the evidence, makes credibility
         determinations, and actually crafts Guidelines sentences day after
         day), we generally defer to its decision to grant, or not grant, a
         variance based upon its balancing of the § 3553(a) factors.

Id. Where, as here, the sentence imposed by the district court is within the

properly calculated guideline range, there is a presumption of reasonableness.

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). This presumption

can be rebutted if the defendant shows the sentence imposed is unreasonable in

light of the factors set forth at 18 U.S.C. § 3553(a). Id.

         Henry argues his 105-month sentence is manifestly unreasonable because

the district court gave too little consideration to his background and history and

too much to his potential to commit crimes in the future. As a result, according to

Henry, the district court’s within-guidelines sentence violates the “parsimony

principle,” a requirement that the sentence be “sufficient, but not greater than

necessary,” to satisfy the purposes of § 3553(a)(2). See Kimbrough v. United

States, 552 U.S. 85, 101 (2007). Henry’s argument in this regard is without

merit.




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      The record reveals the district court carefully considered Henry’s difficult

life circumstances, 1 but concluded those circumstances did not outweigh the

seriousness of his criminal conduct and potential for future criminality.

Transcript of Sentencing, Sept. 21, 2012, at 22 (“Mr. Henry, no one should see or

suffer what you did as a child, but, by the same token, all of us at some point in

our existence are responsible for our conduct, including our criminal conduct and

the consequences of that conduct.”). In particular, the district court considered it

significant that Henry had eighteen convictions between the ages of eleven and

twenty-eight and that his previous sentences did not appear to have a deterrent

effect. Moreover, the court was clearly concerned Henry’s criminal history

category underrepresented the danger he posed to the public. 2 See United States

v. Reyes-Alfonso, 653 F.3d 1137, 1145-46 (10th Cir. 2011) (affirming within-

guidelines sentence in similar situation). At base, Henry is asking this court to

reweigh the § 3553(a) factors and to impose a shorter sentence. But see United


      1
        The record indicates that when Henry was seven-years-old his father was
murdered in his presence. After his father was killed, Henry’s mother starting
utilizing drugs and was unable to care for him. Henry lived with his grandmother
until he was taken away from her because of his behavioral problems and
problems with the law. Thereafter, Henry spent time in foster care and mental
health facilities. Henry reported that he was abused while in the foster care
system.
      2
       Three of Henry’s adult convictions did not result in criminal history
points. Furthermore, criminal history category VI, the most serious criminal
history category, requires thirteen points. Henry far surpassed that level,
accumulating nineteen criminal history points.

                                         -4-
States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (“[I]n many cases there

will be a range of possible outcomes the facts and law at issue can fairly support;

rather than pick and choose among them ourselves, we will defer to the district

court’s judgment so long as it falls within the realm of these rationally available

choices.”); Gall v. United States, 552 U.S. 38, 51 (2007) (“The fact that the

appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.”).

      Given the record before it, the district court reasonably concluded a

sentence at the top of the advisory guidelines range was necessary to protect the

public and, furthermore, that the need to protect the public outweighed the factors

supporting Henry’s request for leniency. Accordingly, the sentence imposed by

the United States District Court for the District of Colorado is hereby

AFFIRMED. Henry’s Unopposed Motion to Substitute Counsel Within the

Office of the Federal Public Defender is hereby GRANTED.



                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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