                                                            FILED
                                                 United States Court of Appeals
                    UNITED STATES CO URT O F APPEALS     Tenth Circuit

                                                                 September 11, 2007
                                 TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-5154
          v.                                              N.D. Okla.
 JAM ES KENT H ILL,                              (D.C. No. 05-CR-156-TCK)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      James K ent Hill appeals from his sentence arguing it is unreasonable in

light of the 18 U.S.C. § 3553(a) sentencing factors. Exercising jurisdiction

pursuant to 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        This order and judgment is not binding precedent except under the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.
                                  I. Background

      The facts of this appeal are not in dispute. Contrary to the advice of his

probation officer and with an understanding it would be a violation of his

probation, Hill acquired possession of a family heirloom .22 caliber rifle along

with a box of ammunition and gave them to his fifteen-year-old son as a birthday

gift. Hill subsequently pled guilty to the possession of a firearm after former

conviction of a felony in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). 1

      Hill did not object to the Presentence Investigation Report (PSR ) prepared

under the 2005 edition of the United States Sentencing Commission’s Guidelines

M anual. The PSR calculated his base offense level at 24, USSG §2K2.1(a)(2),

which was reduced 2 levels for acceptance of responsibility, USSG §3E1.1(a), for

a total offense level of 22. Hill’s criminal history combined for a subtotal of 11

criminal history points, however because he was serving a suspended sentence at

the time of the offense, 2 points were added. USSG §4A1.1(d). Additionally,

because the offense was committed less than two years after his release from

custody, an additional point was added for 14 total criminal history points. USSG

§4A1.1(e). Hill’s 14 criminal history points establish a Criminal History

Category of V I. USSG Ch.5, Pt.A, sentencing table. Based on Criminal History



      1
        Hill’s former felony convictions include: (1) assault and battery with a
dangerous weapon/vehicle, (2) unauthorized use of a vehicle, (3) first-degree
manslaughter, (4) possession of a controlled drug, and (5) possession of
marijuana.

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Category VI, offense level 22, Hill’s advisory guideline range was 84-105

months. Id.

      Hill requested a sentence below the advisory guideline range based on the

sentencing factors found at 18 U.S.C. § 3553(a). After taking the guidelines and

the statutory sentencing factors into consideration, the district court sentenced

Hill to 87 months imprisonment to be followed by a 3 year term of supervised

release. 2 Hill filed a premature, but timely, notice of appeal. See Lewis v. B. F.

Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988) (Fed. R. App. P. 4(a)(2)

permits a notice of appeal, filed prematurely, to ripen once final judgment has

been rendered).

                                     II. Discussion

          W e review a district court’s sentencing determination for reasonableness,

which is guided by the statutory factors delineated in 18 U.S.C. § 3553(a).

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.2006). Those factors

include “the nature of the offense and characteristics of the defendant, as well as

the need for the sentence to reflect the seriousness of the crime, to provide

adequate deterrence, to protect the public, and to provide the defendant with

needed training or treatment.” Id. (citing 18 U.S.C. § 3553(a)). Hill’s sentence

      2
        The district court stated it sentenced Hill within the 77-96 month
guideline range for offense level 21, Criminal History Category VI, because it
was not Hill’s fault he did not receive the additional point off for acceptance of
responsibility. See USSG §3E1.1(b). Under either offense level 21 or 22, Hill’s
87 month sentence was within the advisory guideline ranges.

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within the advisory guideline range is presumptively reasonable. Id. at 1054.

      A. Length of Sentence

      Hill first argues his sentence is unreasonably long, obviating the need for

objection in order to preserve this issue. United States v. Torres-Duenas, 461

F.3d 1178, 1183 (10th Cir. 2006) (“[W]hen the claim is merely that the sentence

is unreasonably long, we do not require the defendant to object in order to

preserve the issue.”). He first attempts to rebut the presumption of

reasonableness by arguing that, on the spectrum of felon in possession of firearm

cases, his actions did not carry the same character of criminality as others. He

stylizes his actions as merely presenting a gift to his son as a rite of passage and

asserts he terminated ow nership of the firearm when he gave it away. Regardless

of his intent, the district court properly applied the guidelines and sentencing

factors in fashioning his sentence. The district court stated:

   In determining an appropriate sentence the Court has placed significant
   weight on the nature and circumstances of the offense and the history of
   the defendant. And that history has been elucidated today, apparently
   two assaults and batteries with a dangerous weapon, that is an
   automobile; malicious injury to property; unauthorized use of a motor
   vehicle; unlawful possession of controlled drugs, first degree
   manslaughter, and much of this while defendant was serving suspended
   sentences. . . .
          Excited about seeing a son is no excuse. He’d been warned by the
   probation officer not to do that. He picks a time w hen the mother isn’t
   at home. . . . I know she didn’t approve because she’s the one that
   called the authorities the very next day. So apparently trying to sneak in
   a weapon, . . . to the wrong people at the wrong time. And to . . . stand
   up in front of me and say he didn’t know the consequences when he’d
   been told w hat the consequences would be, is beyond me. So I don’t

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   feel like that there’s any reason to go under the guidelines.

(R. Vol. III at 10-11.) W e cannot say Hill’s sentence is unreasonable or the

district court abused its discretion in imposing an 87 month sentence.

      B. M ethod Used to Calculate Sentence

      Although his argument is unclear, it appears Hill also attacks the method by

which his sentence was calculated under the advisory guideline system. Hill

takes issue with the use of his past felony convictions to establish a base offense

level and then used again to establish his Criminal History category. He argues

this punishes him for his past offenses rather than for the offenses to which he

pled guilty. Citing Gipson v. Jordan, 376 F.3d 1193, 1198-99 (10th Cir. 2004) (in

light of double jeopardy protection, sentence may punish current offense which is

aggravated by recidivism, but cannot serve as additional punishment for past

offenses), cert. denied, 546 U.S. 1030 (2005) .

      Hill did not raise this claim with the district court, so we review it only for

plain error. See Torres-Duenas, 461 F.3d at 1182-83 (“[W ]hen the defendant fails

to object to the method by which the sentence was determined, . . . we review

only for plain error.”). Hill cannot overcome a plain error analysis because there

is no error. The answ er comes from the case cited by Hill:

      [T]he Supreme Court has explicitly articulated that enhanced
      punishment for recidivist conduct does not violate the Double
      Jeopardy Clause. That is, in upholding recidivism statutes, the C ourt
      has explicitly articulated that an enhanced punishment imposed for a
      later offense based on earlier offenses ‘is not to be viewed as either a

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      new jeopardy or additional penalty for the earlier crimes,’ but instead
      as ‘a stiffened penalty for the latest crime, which is considered to be
      an aggravated offense because a repetitive one.’

Gipson, 376 F.3d at 1199 (citing Gryger v. Burke, 334 U.S. 728, 732 (1948)); see

also Nichols v. United States, 511 U .S. 738, 747 (1994) (“Enhancement statutes,

whether in the nature of criminal history provisions such as those contained in the

Sentencing Guidelines, or recidivist statutes that are commonplace in state

criminal laws, do not change the penalty imposed for the earlier conviction.”).

Hill is not being punished for his past crimes, but is receiving a stiffened penalty

for his latest crime.

      AFFIRM ED.

                                        FOR TH E CO UR T:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




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