                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 25, 2010
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff- Appellee,
                                                        No. 09-1326
 v.                                                    (D. Colorado)
                                              (D.C. No. 1:08-CR-00440-JLK-1)
 DAVID LEE YOUNG,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, 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.




      *
        This order and judgment is not binding precedent except under the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.
                                 I. INTRODUCTION

      A jury convicted David Young of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). 1 The district court sentenced Young to a

term of imprisonment of seventy-six months, a sentence within the range set out

in the advisory Sentencing Guidelines. On appeal to this court, Young challenges

both his conviction and sentence. As to his conviction, Young asserts the district

court erred in admitting at trial a tape recording of a telephone conversation he

had with his sister on December 25, 2008. As to his sentence, Young asserts the

following three errors: (1) improperly enhancing his offense level four levels

pursuant to U.S.S.G. § 2K2.1(b)(6); (2) improperly enhancing his offense level

two levels pursuant to U.S.S.G. § 3C1.1; and (3) refusing to vary downward from

the range set out in the advisory Sentencing Guidelines. This court exercises

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

the district court’s judgment.

                                 II. BACKGROUND

      Both parties agree the following summary from the Presentence

Investigation Report (“PSR”) accurately sets out the factual background of this

case, as developed by the evidence adduced by the government at trial:



      1
        The jury also convicted Young of being a felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). At the government’s request,
the district court dismissed that count.

                                         -2-
       On the night of September 25, 2008, and into the early
morning hours of September 26, Mohamed Bennani was on duty as a
security guard at Club Vinyl, a nightclub in Denver, Colorado. Club
Vinyl is located near the intersection of 11th [Avenue] and
Broadway, across the street from an Arby’s restaurant. Bennani was
stationed outside of the main door, which looks out towards the
Arby’s parking lot. As part of his duties, Bennani guards not only
the nightclub, but also the parking lot where many of the club’s
customers and employees park their automobiles.

      At approximately 1:45 a.m. on September 26, Bennani was
looking towards the Arby’s parking lot when he saw a group of
people gathered near the bus stop in front of the restaurant. The
crowd suddenly scattered and began to run. As the crowd dispersed,
Bennani saw that they were running away from the defendant, David
Lee Young. Young was pointing a silver, semiautomatic handgun
towards the people, or a person, in the dispersing crowd. Young
tucked the handgun into his waistband and started to walk away.

       Bennani radioed his security partner, Howard Ladson, and
informed him of the situation across the street from the club. Ladson
was stationed on Broadway, slightly north of Bennani. Ladson
looked towards the Arby’s and saw the dispersing crowd. He
described the scene as the “parting of the Red Sea,” or words to that
effect. The crowd appeared to be running away from the defendant,
who was holding an object in his hand.

       Bennani gave chase after Young, while Ladson crossed the
street and went around behind Arby’s to cut off the defendant’s
avenue of escape. Bennani never lost sight of the defendant. He
pursued Young into the parking lot immediately south of the Arby’s
restaurant. Young ran behind a car and bent down. When Young
bent down, Bennani could no longer see his hands. Bennani drew his
sidearm and ordered Young to walk out from behind the vehicle.

      Young attempted to flee, but his escape was cut short when he
was cut off by Ladson. The security guards handcuffed Young.
Daryl Honor, the security guards’ supervisor, arrived as Young was
being taken into custody. After Young had been subdued, Bennani
went back to the automobile behind which Young had ducked
moments earlier. Underneath the car, in the exact area where Young

                                  -3-
      had bent down, Bennani found a silver-colored, semiautomatic
      handgun. Its magazine was inserted. Bennani and Honor secured the
      weapon and flagged down a passing police car. The handgun and the
      defendant were turned over to Denver police officers.

            The handgun was a Lorcin, 9 mm, semiautomatic firearm. It
      was loaded with 10 rounds of 9 mm ammunition. The firearm was
      operational and functioned as designed, in that it could expel a
      projectile by the action of an explosive. The firearm was
      manufactured in California. Therefore, it traveled in interstate
      commerce before coming into the defendant’s possession. . . .

             Prior to his possession of the firearm and ammunition on
      September 26, 2008, Young had been previously convicted of a
      felony offense punishable by more that one year imprisonment. On
      July 26, 2007, Young was convicted of felony possession of a
      controlled substance, in District Court, County of Denver, State of
      Colorado case number 2007CR003743. He was on state probation at
      the time he illegally possessed the firearm . . . .

                     III. CHALLENGE TO CONVICTION

      Prior to trial, the government disclosed its intent to introduce into evidence

a recorded telephone conversation Young had with his sister on December 25,

2008. At the time of the conversation, Young was housed at the Federal

Detention Center in Englewood, Colorado, awaiting trial. During the

conversation, Young discussed a recently arrested acquaintance. After indicating

the acquaintance would be going to jail, Young stated the acquaintance should

have “blasted” the police officers that were trying to arrest him. Young then

turned to the first-person, stating “I mean, that’s what I was thinking. I should’ve

blasted them motherf**ing security, homey. Straight up. . . . I should’ve blasted

they ass.” The government asserted these statements related to the incident

                                        -4-
giving rise to Young’s arrest and constituted an admission. See Fed. R. Evid.

801(d)(2) (providing that an admission of a party-opponent is not hearsay).

       Young filed a motion in limine, as well as a supplement thereto, asking the

district court to exclude the recorded conversation as irrelevant under Federal

Rules of Evidence 401 and 402, and unduly prejudicial under Federal Rule of

Evidence 403. In the alternative, should the district court conclude the

conversation was admissible, Young asked the district court to allow him to, inter

alia, introduce other portions of the December 25th conversation. At a hearing on

Young’s motion, the district court began by noting it had listened to, and

reviewed a transcript of, the conversation. The district court ruled that the

portion of the conversation designated by the government was admissible and, in

the interest of fairness, the entire recording of the conversation could be played

for the jury.

       Consistent with its pre-trial statement of intent, the government introduced

into evidence at trial a portion of the December 25th conversation. During the

defense’s case, Young testified the conversation did not relate to the events on the

night of his arrest. He explained, instead, that the conversation related to a verbal

altercation he previously had with security officers at the apartment complex

where he lived with his mother and sister. Thereafter, the entire recording of the

December 25th phone conversation was played to the jury.




                                         -5-
      Young asserts the district court erred in admitting into evidence the

recorded conversation. According to Young, he was “unfairly prejudiced”

because the conversation was “irrelevant to the offense as charged” and its

admission “misle[d] the jury in believing that [it] . . . was related to [his] arrest.”

Appellant’s Brief at 15. Thus, Young argues both that the evidence was

irrelevant and more prejudicial than probative. See Fed. R. Evid. 401, 402, 403.

Furthermore, for the first time on appeal, Young argues the admission of the

recorded conversation is inconsistent with Federal Rule of Evidence 404(b)

because it is evidence of other crimes, wrongs, or acts offered to demonstrate his

bad character and action in conformity therewith. A review of the record

demonstrates Young’s arguments are without merit and the district court did not

err in admitting Young’s December 25th conversation with his sister.

      Evidence is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Fed. R. Evid. 401. Absent

some contrary rule, “[a]ll relevant evidence is admissible.” Fed. R. Evid. 402.

      The determination of whether the evidence is relevant is a matter
      within the sound discretion of the trial court, and we will not disturb
      that decision on appeal absent a showing of a clear abuse of
      discretion. The admission of evidence may constitute an abuse of
      discretion only if based on an erroneous conclusion of law, a clearly
      erroneous finding of fact or a manifest error in judgment.




                                           -6-
Owner-Operator Indep. Drivers Ass’n v. USIS Commercial Servs., Inc., 537 F.3d

1184, 1193 (10th Cir. 2008) (quotations and citation omitted).

      All of Young’s arguments about the admissibility of the December 25th

conversation revolve around his assertion, made both at the hearing on his motion

in limine and at trial, that the conversation related not to the events surrounding

his arrest, but instead to an incident involving security guards at his apartment

complex. Young’s mere assertion that the December 25th conversation referred

to events unrelated to the night of his arrest, however, is an insufficient basis to

exclude the conversation. “The bar for admission under Rule 401 is very low.

This is because the degree of materiality and probativity necessary for evidence to

be relevant is minimal and must only provide a fact-finder with a basis for making

some inference, or chain of inferences.” United States v. Jordan, 485 F.3d 1214,

1218 (10th Cir. 2007) (citation and quotations omitted).

      The December 25th conversation easily satisfies this standard. The sole

issue at trial was whether Young possessed a firearm on the night of his arrest. In

the recorded conversation, Young indicates to his sister that a joint acquaintance

should have “blasted” the officers trying to arrest him. He then turns immediately

to the first-person and declares he should have “blasted” “security.” A reasonable

fact-finder could certainly infer from these statements that Young regretted

allowing himself to be arrested by the security guards outside Club Vinyl and

wished instead that he had shot them and made his escape. This inference makes

                                          -7-
it far more likely Young possessed the gun found underneath the car where Young

was observed crouching down just prior to his arrest. This evidence easily

satisfies the low threshold for admissibility set out in Rule 401. 2

      As the text of Rule 401 makes clear, the December 25th conversation need

not directly resolve the question of whether Young possessed a gun on the night

of his arrest. Instead, it is enough that the conversation provide the jury “with a

basis for making some inference, or chain of inferences.” Id. (quotation omitted).

As noted above, the jury could reasonably draw an inference from the recorded

conversation that Young possessed the weapon found near the spot of his arrest.

      Nor is the evidence relating to the December 25 conversation unduly

prejudicial. See Fed. R. Evid. 403 (“Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . .”). Other than his

assertion the conversation did not relate to the events on the night of his arrest,

the sole basis for Young’s assertion the conversation should have been excluded

under Rule 403 is that the jury might not have appreciated his frequent use of


      2
        For this same reason, even assuming it were preserved, Young’s assertion
that the admission of the recorded conversation violated Rule 404(b) is without
merit. This assertion is entirely dependent on Young’s claim that because the
conversation referred to matters unrelated to the events on the night of his arrest
it amounts to evidence of other wrongs in violation of Rule 404(b). Because the
government never sought to admit the evidence under 404(b) and because the jury
could reasonably conclude the conversation related to the events on the night of
Young’s arrest, Rule 404(b) is simply not implicated in this case.

                                          -8-
expletives during the conversation. Contrary to Young’s assertion, the evidence

relating to the recorded conversation did not suggest the jury “render its findings

on an improper basis, commonly . . . an emotional one,” or involve

“circumstantial evidence [which] would tend to sidetrack the jury into

consideration of factual disputes only tangentially related to the facts at issue in

the current case.” Jordan, 485 F.3d at 1218 (quotations omitted). Instead, the

evidence went to the very heart of the sole issue before the jury for resolution:

whether Young possessed a gun on the night of his arrest. The district court quite

reasonably concluded the highly probative value of this evidence easily

outweighed any slight risk of unfair prejudice flowing from Young’s extensive

use of expletives during the recorded conversation.

      The district court was well within the bounds of its broad discretion in

concluding the December 25th conversation was relevant and that its admission

was not unduly prejudicial. Accordingly, this court affirms the district court’s

judgment of conviction.

                            IV. SENTENCING ISSUES

      After 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). “Review for procedural reasonableness focuses on whether

                                          -9-
the district court committed any error in calculating or explaining the sentence.”

Id. “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).

A. Procedural Reasonableness

      Young asserts the district court erred in increasing his offense level two

levels for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, and an additional

four levels for possessing the firearm in connection with felony menacing,

pursuant to U.S.S.C. § 2K2.1. A challenge to the application of a sentencing

enhancement tests the “procedural reasonableness” of a sentence, “which requires,

among other things, a properly calculated Guidelines range.” United States v.

Cook, 550 F.3d 1292, 1295 (10th Cir. 2008) (quotation omitted). Likewise,

“[s]electing a sentence based on clearly erroneous facts is a procedural error.” Id.

(quotation omitted). Accordingly, this court reviews “a district court’s legal

interpretation of the Guidelines de novo and its factual findings for clear error.”

Id. (quotation omitted). In so doing, this court is “mindful of [its] obligation to

give due deference to the district [court’s] determinations of the credibility of

witnesses.” United States v. Keeling, 235 F.3d 533, 535 (10th Cir. 2000)

(quotation omitted).




                                         -10-
         1. U.S.S.G. § 3C1.1

         In arriving at Young’s offense level, the district court employed the two-

level enhancement set out in U.S.S.G. § 3C1.1, concluding Young committed

perjury 3 when he falsely testified at trial that (1) he did not possess the firearm he

was charged with possessing and (2) he did not wave that firearm at a group of

people in the Arby’s parking lot, causing them to disperse. On appeal, Young

asserts the district court’s findings are insufficiently particular to support the

application of § 3C1.1. He further argues the district court erred in applying

§ 3C1.1’s obstruction-of-justice enhancement because the enhancement violates

his constitutional right to testify on his own behalf at trial. Both contentions lack

merit.

         This court first takes up Young’s assertion § 3C1.1 is unconstitutional

because it interferes with his right to testify. This contention is contrary to

binding Supreme Court precedent. United States v. Dunnigan, 507 U.S. 87, 96-98

(1993). In Dunnigan, the Court made clear “a defendant’s right to testify does

not include a right to commit perjury.” Id. at 96. “Nor can [a defendant] contend

§ 3C1.1 is unconstitutional on the simple basis that it distorts [his] decision


         3
        U.S.S.G. § 3C1.1 provides for a two-level increase in a defendant’s
offense level if “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction.” “Committing,
suborning, or attempting to suborn perjury” is sufficient to trigger the obstruction
of justice enhancement. U.S.S.G. § 3C1.1 cmt. n.4(b).

                                           -11-
whether to testify or remain silent.” Id. This is so, according to the Court,

because its “authorities do not impose a categorical ban on every governmental

action affecting the strategic decisions of an accused, including decisions whether

or not to exercise constitutional rights.” Id. In light of Dunnigan, Young’s

constitutional challenge to § 3C1.1 necessarily fails.

      Nor can Young legitimately claim the district court failed to make the

necessary findings to support the conclusion he committed perjury when he

testified at trial. Perjury occurs when “[a] witness testifying under oath or

affirmation . . . gives false testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of confusion, mistake, or

faulty memory.” Id. at 94. The mere fact a defendant testifies he is innocent and

is later found guilty does not automatically warrant a finding of perjury. Id. at

95. Instead, a defendant who testifies under oath commits perjury warranting a

§ 3C1.1 enhancement only if: (1) the defendant made a false statement under

oath; (2) concerning a material matter; (3) with a willful intent to provide false

testimony. Id. at 94. Thus, “if a defendant objects to a sentence enhancement

resulting from [his] trial testimony, a district court must review the evidence and

make independent findings necessary to establish a willful impediment to or

obstruction of justice” under the Dunnigan definition. Id. at 95.

      At the sentencing hearing, the district court made findings “encompass[ing]

all of the factual predicates for a finding of perjury.” Id.

                                          -12-
             You committed perjury. You have a right to testify, and you
      did. But you do not have a right to testify falsely. And during your
      testimony, you lied on several occasions. You were a felon charged
      with possession of a firearm, and you repeatedly testified that you
      did not possess the firearm you were charged with possessing, and
      that constitutes a material matter in the trial and you did so with the
      willful intent to provide false testimony. You don’t have a right to
      give false testimony. You have a right to testify truthfully.

             You denied under oath that you waved a firearm at a group of
      people, causing them to disperse. And such conduct constitutes
      felony menacing under Colorado law and is an enhancement of your
      criminal conduct under the Sentencing Guidelines. I find this
      testimony was false concerning a material matter. And finally in this
      regard, I find that you made this statement with the willful intent to
      provide false testimony. The evidence at trial was overwhelming
      that you were a felon who possessed a firearm and that you used it to
      menace a crowd of people on the date charged in the indictment.

These findings easily satisfy the standards set out by the Supreme Court in

Dunnigan. Id. at 95-96. Furthermore, the district court’s factual findings that

Young testified falsely and did so willfully are amply supported by the record.

See United States v. Hankins, 127 F.3d 932, 934 (10th Cir. 1997) (“[W]e review

the sentencing court’s factual determinations concerning the obstruction of justice

enhancement for clear error only. We give due deference to the district court’s

application of the Guidelines to the facts and its ability to judge the credibility of

the witnesses upon whose testimony it relied.” (citations omitted)). Accordingly,

the district court did not err in increasing Young’s offense level two levels

pursuant to § 3C1.1.




                                          -13-
      2. U.S.S.G. § 2K2.1

      The district court increased Young’s offense level four levels because his

possession of the weapon underlying his conviction was in connection with the

Colorado state felony offense of menacing. U.S.S.G. § 2K2.1(b)(6) (prescribing a

four-level increase if the defendant used or possessed any firearm in connection

with another felony offense); id. § 2K2.1 cmt. n.14(c) (“‘Another felony offense’

. . . means any federal, state, or local offense . . . punishable by imprisonment for

a term exceeding one year, regardless of whether a criminal charge was brought,

or a conviction obtained.”); Colo. Rev. Stat. § 18-3-206(1)(a) (providing that a

person commits felony menacing if, by use of a deadly weapon, “he or she

knowingly places or attempts to place another person in fear of imminent serious

bodily injury”). Relying on the testimony of the two security guards from Club

Vinyl, the district court concluded Young had waved a handgun about in the

Arby’s parking lot, causing the assembled crowd to rapidly disperse. This factual

finding, according to the district court, was all that was necessary to conclude

Young’s possession of the handgun was in connection with the commission of

felony menacing.

      On appeal, Young raises several objections to the district court’s use of

§ 2K2.1 to calculate his offense level. All of these objections, however, revolve

around the following common theme: because the government did not identify a

particular victim (i.e., a member of the crowd that dispersed when he waved the

                                         -14-
gun about in the Arby’s parking lot) and present that victim to testify at the

sentencing hearing, it failed to satisfy the requirement of the Colorado felony

menacing statute that another person be placed in fear of bodily injury. The

problem with Young’s argument is this court has held that to prove felony

menacing under Colorado law, a prosecutor need not prove “actual subjective fear

on the part of the victim.” United States v. Cook, 550 F.3d at 1297 n.5 (quotation

omitted); see also United States v. Blackwell, 323 F.3d 1256, 1259 (10th Cir.

2003) (“[U]nder Colorado law, felony menacing is a general intent crime and it is

enough that the defendant’s conduct was sufficient to place someone in fear of

imminent serious bodily injury.”). 4 In neither Cook nor Blackwell did the record

contain any indication from a victim of the felony menacing crimes that they had

actually suffered fear as a result of having a weapon pointed at them. Cook, 550

F.3d at 1295-96 (concluding affidavits from two law enforcement officers simply

      4
       The Colorado Supreme Court has described the crime of menacing as
follows:

             Menacing, whether a misdemeanor or a felony, is a general
      intent crime. To establish that a defendant has committed the crime
      of menacing, it is not necessary to prove actual subjective fear on the
      part of the victim. Rather, it is only necessary that the defendant be
      aware that his conduct is practically certain to cause fear. Moreover,
      in defining felony menacing, the phrase “use of a deadly weapon” is
      broad enough to include the act of holding a weapon in the presence
      of another in a manner that causes the other person to fear for his
      safety, even if the weapon is not pointed at the other person.

People v. Dist. Court of Colorado’s Seventeenth Judicial Dist., 926 P.2d 567, 571
(Colo. 1996) (citations and footnote omitted).

                                         -15-
recounting that the defendant had pointed a loaded shotgun at the victim were

sufficient to support the district court’s application of § 2K2.1(b)(6)); Blackwell,

323 F.3d at 1259 (affirming application of prior version of § 2K2.1(b)(6) based

on simple testimony red beam from laser-equipped weapon passed over the bodies

of several police officers). In light of this court’s binding precedent, Young’s

arguments that he could not be subject to the enhancement set out in §

2K2.1(b)(6) without the testimony of an actual victim are without merit.

Consequently, the district court did not err in increasing Young’s offense level

four levels pursuant to § 2K2.1(b)(6).

B. Substantive Reasonableness

      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

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

                                         -16-
      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.

      As he did before the district court, Young argues that in light of the

following factors his within-guidelines sentence is too harsh: (1) his young age at

the time of the commission of the crime; (2) his traumatic childhood, which

included an almost complete lack of parental guidance and being shot as a

teenager; and (3) an argument his criminal history category V overstated the

seriousness of his criminal history. The district court specifically noted the

“tragic” nature of Young’s childhood and stated it had “lost considerable sleep

over the matter.” It concluded, however, that the mitigating value of Young’s

personal circumstances were outweighed by the following factors: (1) although

given multiple chances to reform after prior criminal conduct, Young had

continued to violate the law; (2) Young’s criminal conduct was increasingly

violent, as demonstrated by his statement to his sister that he should have shot the

security guards that arrested him outside Club Vinyl; and (3) Young’s lack of


                                          -17-
vocational and coping skills made it unlikely he would reform if quickly returned

to the same environment. See 18 U.S.C. § 3553(a)(2) (providing that in arriving

at a sentence, the district court must consider the need to “protect the public” and

“provide the defendant with needed education or vocational training”).

Accordingly, the district court imposed a sentence of seventy-six months’

imprisonment, a sentence within the range set out in the advisory Sentencing

Guidelines.

      The district court’s conclusion that the need to protect the public and

provide Young with needed vocational and coping skills outweighed Young’s

personal characteristics is not arbitrary, capricious, or manifestly unreasonable.

Haley, 529 F.3d at 1311. It is, instead, an eminently reasonable balancing of the

factors set out in § 3553(a). United States v. Smart, 518 F.3d 800, 808 (10th Cir.

2008) (holding that this court “may not examine the weight a district court assigns

to various § 3553(a) factors, and its ultimate assessment of the balance between

them, as a legal conclusion to be reviewed de novo,” but must instead “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,”

justify the sentence imposed (quotation omitted)). Because Young has not

overcome the presumption of reasonableness that attaches to a within-Guidelines




                                         -18-
sentence, we affirm the substantive reasonableness of the sentence imposed by the

district court. 5

       5
        Although Young does make a true substantive reasonableness challenge to
his sentence in his brief on appeal, the majority of Young’s arguments are
actually, although labeled otherwise, challenges to the procedural reasonableness
of his sentence. That is, in that section of his brief challenging the substantive
reasonableness of his sentence, Young asserts the district court failed to
adequately consider the factors set out in § 3553(a) and to explain how those
factors justified the sentence ultimately imposed. As the Supreme Court has
made clear, however, an argument the district court failed “to consider the §
3553(a) factors” or “to adequately explain the chosen sentence” are challenges to
the procedural reasonableness of the sentence. United States v. Sayad, 589 F.3d
1110, 1116 (10th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). Because Young did not raise these arguments before the district court,
the issues are forfeited. United States v. Romero, 491 F.3d 1173, 1177-78 (10th
Cir. 2007). Forfeited challenges to the procedural reasonableness of a sentence
are reviewed only for plain error. Id. Because Young does not advance an
argument that the forfeited “error” is plain, this court need not consider the issue.
Nevertheless, this court’s longstanding precedents make it absolutely clear the
district court here did not commit error of any kind in arriving at Young’s
sentence. Pursuant to § 3553(a), a sentencing court must explain the reasons for
its imposition of a particular sentence. A district court satisfies this obligation in
a case involving a within-Guidelines sentence by entertaining a defendant’s
arguments, indicating on the record it considered the § 3553(a) factors, and
“provid[ing] only a general statement of the reasons for its imposition of the . . .
sentence.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2006)
(quotation omitted). The district court need not explicitly reference each of the
§ 3553(a) factors or respond to “every argument for leniency that it rejects in
arriving at a reasonable sentence.” United States v. Jarrillo-Luna, 478 F.3d 1226,
1229 (10th Cir. 2007). The district court is not required to engage in a “ritualistic
incantation” or recite any “magic words” to demonstrate it has fulfilled its
responsibility to be mindful of the factors that Congress has instructed it to
consider. United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006).
“Rather, it is enough if the district court considers § 3553(a) en masse and states
its reasons for imposing a given sentence.” United States v. Kelley, 359 F.3d
1302, 1305 (10th Cir. 2004). Here, the district court considered the sentencing
factors set forth in § 3553(a), including Young’s personal characteristics and
history, and explained why those factors were simply not sufficient to support a
                                                                         (continued...)

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                               V. CONCLUSION

      For those reasons set out above, the judgment of conviction and sentence

imposed by the district court are hereby AFFIRMED.




                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




      5
        (...continued)
deviation from the advisory Guidelines range. This is all that was required of the
district court under this court’s longstanding precedents.

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