                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 April 3, 2008

                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                            __________________________              Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-1297
 v.                                             (D.Ct. No. 06-cr-00046-MSK)
                                                         (D. Colo.)
 DARIUS RAMON LIMON,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before TACHA, Circuit Judge, and BARRETT and BRORBY, Senior 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.



      Appellant Darius Ramon Limon pled guilty to three counts of armed bank


      *
         This order and judgment is not binding precedent except under the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.
robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one count of brandishing

a firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c). He now appeals his 279-month sentence, contending it is unreasonable

because the district court impermissibly relied on his need for mental health

treatment or “rehabilitation” to apply an upward variance for the purpose of

increasing his sentence. Mr. Limon further claims his sentence is unreasonable

because the district court improperly considered the 18 U.S.C. § 3553(a)

sentencing factors previously contemplated in calculating his sentence under the

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). We exercise

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

Limon’s sentence.



                               I. Factual Background

      The facts concerning Mr. Limon’s criminal activities are outlined in his

plea agreement and statement of facts relevant to sentencing and incorporated into

his presentence report, to which neither party objected. Only those facts relevant

to disposition of the issues raised in this appeal are presented.



      On February 2, 2005, Mr. Limon entered a Safeway Rocky Mountain

Federal Credit Union (now Westerra Credit Union) in Denver, Colorado, where he

pointed a long-barreled revolver at four credit union employees, ordered them

                                          -2-
down on the ground, and directed them to open the vault. The manager opened

the vault and placed $88,248 inside Mr. Limon’s backpack, which he took and

fled.



        On September 9, 2005, Mr. Limon entered the Air Academy Federal Credit

Union in Parker, Colorado, pointed a black semiautomatic handgun at ten

individuals and then herded them into the vault area at gunpoint. Credit union

employees opened the vault and put $139,775 inside Mr. Limon’s backpack,

which he took and fled. A few weeks later, on October 26, 2005, Mr. Limon

entered the same bank again, located the employee who had the keys to the vault

in the first robbery, ordered her to open it, pointed his gun at her and at least

seven others during the robbery, and fled with $70,150.



        On December 30, 2005, Mr. Limon entered Champion Bank in Parker,

Colorado, pointed a black semiautomatic handgun at six individuals and herded

them into the vault area at gunpoint. Again, bank employees opened the vault and

placed $82,502 inside his backpack which Mr. Limon took and fled.



        On February 7, 2006, Mr. Limon entered another Air Academy Federal

Credit Union, this time located in Highlands Ranch, Colorado, where he pointed a

black semiautomatic handgun at three credit union employees and herded them

                                          -3-
into the vault area at gunpoint. Again, the employees opened the vault and placed

$21,671 inside a gray backpack, which Mr. Limon took as he fled. However, they

also placed a covert monitoring device with a GPS locator in his backpack.



      Approximately fifteen minutes after the robbery, a lieutenant with the

Douglas County Sheriff’s Office, Jason Kennedy, was patrolling an area eight

miles from the Air Academy Federal Credit Union when a dispatch notified him

the vehicle containing the monitoring device was stationary at the same

intersection. At that time, Lieutenant Kennedy observed a vehicle matching the

description of the vehicle used in the other robberies at the stop light. Lieutenant

Kennedy initiated a stop of the vehicle and arrested Mr. Limon; inside the

vehicle in plain view was the gray backpack with money spilling out of it, the

same gray sweatshirt worn by Mr. Limon during the robbery, and the black

semiautomatic handgun he brandished during all but one of these robberies, which

authorities later determined was operable.



      The money and deposits taken by Mr. Limon during these robberies were

insured by either the National Credit Union Administration or the Federal Deposit

Insurance Corporation – both agencies of the United States government. In

addition to the five robberies described, Mr. Limon later agreed to pay restitution

for five additional robberies committed over a twenty-eight-month period, which

                                         -4-
included the following: $59,240 for a robbery on October 23, 2003, at Columbine

Federal Credit Union in Centennial, Colorado; $77,000 and $9,847 for robberies

on May 3, 2005, and July 27, 2005, at Liberty Savings Bank in Greenwood

Village, Colorado; $13,895 for a robbery on July 28, 2005, at Colorado State

Employees Credit Union in Aurora, Colorado; and $24,300 for a robbery on

August 30, 2005, at the Public Service Credit Union in Centennial, Colorado.

The total amount of restitution Mr. Limon agreed to pay as a result of all ten

robberies totaled $586,628.



                              II. Procedural Background

      Following Mr. Limon’s arrest, a twenty-count superceding indictment was

filed charging Mr. Limon with ten counts of armed back robbery, in violation of

18 U.S.C. § 2113(a) and (d), and ten counts of brandishing a firearm during and

in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Mr. Limon

entered a guilty plea to three counts of armed bank robbery pertaining to the

Safeway Rocky Mountain Federal Credit Union in Denver, Colorado, committed

on February 2, 2005 (Count 3); the Air Academy Federal Credit Union in Parker,

Colorado, committed on September 9, 2005 (Count 13); and the Champion Bank

in Parker, Colorado, committed on December 30, 2005 (Count 17). He also pled

guilty to one count of brandishing a firearm during and in relation to a crime of

violence pertaining to his robbery of the Air Academy Federal Credit Union in

                                         -5-
Highlands Ranch, Colorado, on February 7, 2006 (Count 20). In exchange for his

guilty plea and agreement to pay restitution for all ten robbery counts, the

government agreed to dismiss the remaining counts and file a motion for

downward departure if Mr. Limon provided substantial assistance.



      After the district court accepted Mr. Limon’s guilty plea, a probation

officer prepared a presentence report in which she calculated Mr. Limon’s base

offense level at 20 for each of the three armed robberies to which he pled guilty.

Based on various adjustments for specific offense characteristics, multiple counts,

and acceptance of responsibility, the probation officer calculated Mr. Limon’s

total offense level at 31 for the robbery offenses. The total offense level of 31

included various offense level increases under U.S.S.G. § 2B3.1, including a two-

level increase under subsection (b)(1) because the properties robbed belonged to

financial institutions; a five-level increase under subsection (b)(2)(C) because Mr.

Limon brandished a firearm during each of the three robberies; a two-level

increase under subsection (b)(4)(B) because individuals at each of the three banks

were physically restrained at gun-point; and a two-level increase under subsection

(b)(7)(C) because each of the three robbery offenses caused a loss of more than

$50,000 but less than $250,000. Based on Mr. Limon’s extensive criminal

history, the probation officer calculated his criminal history category at VI,

which, together with a total offense level of 31, resulted in a Guidelines range of

                                         -6-
188 to 235 months imprisonment for the armed robbery counts. The probation

officer also noted the separate count for brandishing a firearm during and in

relation to a crime of violence carried a minimum term of imprisonment of seven

years, to be served consecutively to his armed robbery sentence, so that the

Guidelines range for the firearm charge was the seven-year term of imprisonment

set by statute, or eighty-four months.



      The presentence report also provided information on Mr. Limon’s history

of depression and diagnosis of bipolar disorder, medications prescribed to assist

with his mental problems, his failure to continue to take such medications, his

positive response to medication while incarcerated, and his long history of

substance abuse and self-medication with illegal drugs and alcohol. It also

outlined his history of high stakes gambling which started in 2001 and steadily

increased prior to his arrest. The report also noted that in relation to the counts to

which he pled guilty, Mr. Limon entered the banking facilities with a gun and

forced individuals into the vaults, pointing the gun at them as he shouted

commands, causing fear and emotional distress, which was greatly increased by a

second robbery at the Air Academy Federal Credit Union involving some of the

same victims as the first robbery at that location. The presentence report

recounted interviews with victims of the robberies, including both bank

employees and customers, who discussed the extremely threatening and agitated

                                          -7-
manner in which Mr. Limon committed the robberies and the physical, emotional,

and mental distress and traumatic impact the robberies had on them.



      The presentence report also discussed Mr. Limon’s extensive criminal

history, beginning at the age of sixteen, which included five previous felony

convictions, including convictions for theft, forgery, and criminal impersonation,

and five misdemeanor convictions, including a conviction for unlawful carrying

of a concealed weapon, and the fact Mr. Limon: 1) was on parole at the time he

committed the first alleged count of armed bank robbery; 2) committed the second

charged armed bank robbery within six months of his discharge from the

Colorado Department of Corrections; 3) was on probation for two felony offenses

at the time of the remaining eight counts of armed bank robbery; and 4) had a

five-year suspended Department of Corrections sentence pending in state court.



      After discussing this information in conjunction with the 18 U.S.C.

§ 3553(a) sentencing factors, the probation officer recommended a sentence at the

high end of the Guidelines range for the robbery counts at 235 months

imprisonment, which, together with the statutory consecutive sentence of eighty-

four months on the firearm count, resulted in a recommended total imprisonment

of 319 months. As justification for a recommendation of a sentence at the high

end of the Guidelines sentencing range, the probation officer pointed out: 1) Mr.

                                        -8-
Limon had an extensive criminal history with his criminal activity becoming

progressively more serious and violent in nature; 2) his prior period of

incarceration, parole, and probation did not deter him from committing the instant

offenses, which he committed while on supervision; 3) attempts to address his

substance abuse and mental health conditions by the Colorado Department of

Corrections, through community referrals while on parole and probation, had been

unsuccessful; 4) his admission he chose discontinuation of prescribed medication

for his mental health condition and instead self-medicated with drugs and alcohol;

5) the fact Mr. Limon was on probation for two felony offenses at the time of the

instant offense and had been afforded numerous opportunities for rehabilitation,

and yet his criminal behavior continued and escalated; and 6) the fact his bank

robbery spree had a detrimental and lasting effect on the numerous victims

impacted by his crimes, including those who were victimized twice by him within

a two-month period at the same location, and potentially more than the twenty-six

victims identified in the plea agreement.



      As agreed, the government filed a motion for a downward departure for Mr.

Limon’s substantial assistance, requesting a total imprisonment of 240 months on

all counts. Neither Mr. Limon nor the government filed objections to the

presentence report; in addition, at the initial sentencing hearing, neither party

disputed the facts set forth in the presentence report or the advisory Guidelines

                                            -9-
calculations. At the sentencing hearing, a brief colloquy ensued over the

government’s basis for a downward departure for Mr. Limon’s substantial

assistance, as well as Mr. Limon’s request for a more significant departure or

variant sentence of eighteen years, or 216 months, imprisonment on all counts

based on his mental health condition, to which the government objected.



      After recounting Mr. Limon’s extensive criminal history, including those

offenses for which he received no criminal history points, and his substantial

assistance to the government, the court granted the government’s motion for

downward departure but stated its intention to sentence Mr. Limon to 279 months

imprisonment, which it stated constituted an upward variance above the

downward departure of 240 months imprisonment. The district court also

thoroughly discussed the various sentencing factors under 18 U.S.C. § 3553(a),

including Mr. Limon’s history and characteristics, as evidenced, in part, by its

discussion of: 1) Mr. Limon’s criminal history reflecting “numerous convictions,

accelerating violence, numerous attempts by courts to intervene and to address his

mental health and substance abuse issues”; 2) Mr. Limon’s traumatic childhood;

3) his diagnosis of mental health problems; 4) his family’s and law enforcement’s

attempts “to intervene to address those issues and to circumvent what became an

accelerating history of self-medication with alcohol and drugs, resulting in an

extensive, increasingly violent criminal history”; 5) the “troubling” and

                                        -10-
“horrifying” circumstances surrounding the robberies, where Mr. Limon used a

gun to point “at innocent people in a threatening and coercive way” and shouted

commands which left them “weeping on the floor” and memories they will live

with for the rest of their lives; 6) the possibility he experienced fits of mania in

committing his instant offenses and may not have a clear recollection of what he

did; 7) his robbery of the same bank within two months and other armed robberies

in the indictment, which, with the other robberies, were committed between 2003

and 2006; 8) the fact he has five felony convictions and his prior periods of

incarceration, parole, and probation did not deter him; 9) his history of substance

abuse and mental health conditions and his decision to discontinue prescribed

medication for his mental health conditions and self-medicate with drugs and

alcohol; 10) the fact that despite his numerous opportunities for rehabilitation in

the community, his criminal behavior not only continued, but escalated; 11) the

fact that the only way Mr. Limon can receive and is amenable to the mental health

treatment he needs is under supervision while incarcerated; 12) the fact that his

failure to take medication and self-medicate affects the safety of the community;

and 13) the extraordinary seriousness of the offense, which the district court

described as a rampage. It then stated that while the government’s view a twenty-

year sentence would meet the punitive aspect in his sentencing and it would

appear to meet the purpose of deterring criminal conduct:




                                          -11-
      [w]hen we get to protecting the public from further crimes by the
      defendant, I don’t think 20 years is enough because I do not believe
      that Mr. Limon yet understands that he is accountable for his
      behavior notwithstanding his horrible childhood [and] ... mental
      health issues. This isn’t about him; it’s about everybody else. And I
      further am concerned when I consider what Mr. Limon needs that it
      is only in a prison setting that his mental health can be appropriately
      dealt with.

R., Vol. 3 at 37-38. The district court then continued the sentencing hearing and

allowed further briefing by the parties.



      Mr. Limon filed a sentencing memorandum, asserting the Guidelines

adequately took into account the facts relevant to his sentence and that a 240-

month sentence would satisfy the § 3553(a) sentencing factors. At the subsequent

sentencing hearing, Mr. Limon renewed these assertions, and the government

continued to support its request for a 240-month sentence.



      In sentencing Mr. Limon, the district court explained the sentencing range

for the three counts of armed robbery was 188 to 235 months, which, together

with the eighty-four-month consecutive sentence for the one count of brandishing,

resulted in a total Guidelines range of 272 to 319 months imprisonment. It then

explained that in the absence of Mr. Limon’s substantial assistance to the

government and its grant of a downward departure, it would have imposed a

sentence at the top of the Guidelines range based on the “horrendous” nature of


                                           -12-
Mr. Limon’s robbery spree, the impact of that spree on the victims, protection of

the public from future crime sprees based on his inability to regulate his mental

health and behavior outside of prison, and his need for treatment. It then

addressed the variance component of Mr. Limon’s sentence, explaining it did not

believe a 240-month sentence, based on the granted downward departure, would

satisfy the § 3553(a) factors relating to the safety of the community and provision

of medical care for Mr. Limon, and that, instead, a sentence within the advisory

Guidelines period of incarceration was appropriate when considering the

seriousness of the offenses, the effect the crimes had on the victims, the likely

danger to the community, and the necessity of treatment for Mr. Limon. The

district court then sentenced Mr. Limon to a total of 279 months imprisonment.



                                   III. Discussion

      On appeal, Mr. Limon argues his sentence is substantively unreasonable

because the district court impermissibly relied on his need for mental health

treatment or rehabilitation to impose a variance, making his sentence longer than

the 240-month downward departure sentence it initially granted. In making this

argument, Mr. Limon relies on 18 U.S.C. § 3582(a), 28 U.S.C. § 994(k), U.S.S.G.

§ 5H1.3, and cases from other circuits to argue the district court could not

consider his need for mental health treatment or rehabilitation to impose an

upward variance.

                                         -13-
      Mr. Limon further suggests his sentence is substantively unreasonable

because the district court considered sentencing factors under § 3553(a) already

contemplated in calculating his sentence under the Guidelines. In support, he

argues the Guidelines, through offense level increases under U.S.S.G. § 2B3.1,

already took into account facts which increased his Guidelines range, including

his use of a gun to rob financial institutions by force, which he pointed at

innocent people in a threatening and coercive way. Similarly, he also suggests

the district court should not have considered his extensive criminal history as a

factor under § 3553(a) because it was previously assessed at the highest criminal

history category VI under the Guidelines and did not constitute a criminal history

that is “out of the ordinary” for a defendant with the highest criminal history

category. Finally, Mr. Limon points out the district court discussed, as an

alternative rationale, the sentence it would have imposed if it had denied the

downward departure, so that to the extent it may have denied the downward

departure rather than granting it, he argues his sentence is procedurally

unreasonable and this court may review the district court’s discretionary decision

to deny the government’s motion for downward departure.



      The government opposes the appeal. While it admits the district court

discussed an alternative sentencing methodology, it points out that it ultimately

granted the downward departure, followed by an upward variance after

                                         -14-
considering the § 3553(a) sentencing factors. It further contends Mr. Limon’s

argument improperly conflates “rehabilitation” with “medical care.” It points out

the statute on which Mr. Limon relies to support his argument, 18 U.S.C.

§ 3582(a), only prohibits imprisonment “as a means of promoting correction and

rehabilitation,” while 18 U.S.C. § 3553(a)(2)(d), on which the district court

relied, requires the court to consider providing “the defendant with needed ...

medical care” in assessing the sentence length. Thus, the government argues that

while a court may not consider rehabilitative goals in considering whether to

impose a sentence of imprisonment, it may consider rehabilitative needs relevant

to the sentence length after it chooses imprisonment as a proper punishment. To

this end, the government points out no question existed as to whether Mr. Limon

would receive a substantial sentence in this case, so it was appropriate for the

district court to consider his undisputed need for extensive mental health

treatment as one of the factors in determining the length of his sentence.



      The government also points out Mr. Limon’s mental health treatment was

not the only factor the district court considered in imposing his sentence but it

also considered other factors, such as the extreme seriousness of his offenses and

the need to protect the public from future crime sprees, and that in considering his

mental health, the district court was concerned with the fact Mr. Limon had prior

opportunities to receive treatment and did not take advantage of them, which

                                         -15-
resulted in his criminal activities becoming more numerous and more violent,

establishing a trend of increasingly serious offenses impacting the safety of the

community. In addition, the government contends Mr. Limon’s argument

suggesting the district court impermissibly imposed a variant sentence based on

factors previously accounted for in the Guidelines lacks merit, and, instead, his

increasingly violent behavior – despite his repeated arrests, convictions, and

imprisonment – takes him outside of the heartland of cases because he poses a

higher risk than the average person and requires more deterrence than the

Guidelines’ basic computations.



      We begin our discussion by clarifying that a sentence above or below the

recommended Guidelines range based on an application of Chapters Four or Five

of the Guidelines is referred to as a “departure,” while a sentence above or below

the recommended Guidelines range through application of the sentencing factors

in 18 U.S.C. § 3553(a) is called a “variance.” United States v. Atencio, 476 F.3d

1099, 1101 & n.1 (10th Cir. 2007). In this case, the district court clearly granted

the government’s downward departure, as indicated by its explicit announcement

it was granting the government’s motion for downward departure but intended to

sentence Mr. Limon to 279 months imprisonment, which it stated constituted an

upward variance from the 240-month imprisonment requested. Because the

district court clearly granted the downward departure, we decline to address Mr.

                                         -16-
Limon’s alternative argument the district court may have somehow improperly

denied the government’s request for a downward departure simply because it

discussed, but did not apply, a different sentencing methodology.



      Having made this determination, we next consider the challenged upward

variance imposed by the district court, which Mr. Limon states resulted in a

“substantively” unreasonable sentence based on: 1) consideration of an

impermissible factor – his mental health treatment; and 2) § 3553(a) factors

already considered in calculating his Guidelines range, including his extensive

criminal history.



      Before beginning our discussion, we note that in briefing this appeal

neither party had the benefit of this court’s decision in United States v. Smart,

which now clarifies the standard of review and principles applied in reviewing a

variance imposed using the § 3553(a) factors. See ___ F.3d ___, 2008 WL

570804 (10th Cir. Mar. 4, 2008) (No. 06-6120) (slip op.). Following the Supreme

Court’s decisions in Gall v. United States, ___ U.S. ___, 128 S. Ct. 586 (2007),

and Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558 (2007), the Smart

court clarified that “we now review ‘all sentences – whether inside, just outside,

or significantly outside the Guidelines range – under a deferential abuse-of-

discretion standard.’” 2008 WL 570804, at *4 (quoting Gall, 123 S. Ct. at 591).

                                         -17-
It also explained the mathematical formula in calculating the absolute amount and

the relative percentage of a variance, as employed by this court in United States v.

Garcia-Lara, 499 F.3d 1133, 1138-39 (10th Cir. 2007), petition for cert. filed

(Mar. 7, 2008) (No. 07-9799), and other variant sentencing cases, no longer

applies. See Smart, 2008 WL 570804, at **5-6. As a result, the district court

need not necessarily provide “extraordinary” facts to justify any statutorily

permissible sentencing variance, although it must provide reasoning sufficient to

support a chosen variance. Id. at *6. In variant sentencing cases, we defer not

only to a district court’s factual findings but also to its determination of the

weight to be afforded to such findings, giving “due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” Id. at **6-7 (quotation marks and citations omitted). The Smart court

also noted the Supreme Court decisions in Gall and Kimbrough ended our practice

of permitting a variance only if the district court “first distinguishes the

defendant’s characteristics and history from those of the ordinary ... offender”

contemplated by the Guidelines. Id. at *7 (quotation marks and citation omitted).

Because the recommended advisory Guidelines sentencing range only reflects a

rough approximation of a sentence achieving § 3553(a) objectives, and the

Guidelines are only a starting point for district courts, which have greater

familiarity with the individual case and defendant before them, we announced,

“district courts are now allowed to contextually evaluate each § 3553(a) factor,

                                          -18-
including those factors the relevant guidelines already purport to take into

account, even if the facts of the case are less than extraordinary.” Id. As further

stated in Smart, “[i]f district courts are required to balance the Guidelines against

the other § 3553(a) considerations, then we cannot say they disregard the

Guidelines simply by striking a different balance and imposing a variance in a

particular case.” Id. at *8.



      Under Smart, district courts are free to impose any sentence that is

“reasonable” under the sentencing factors listed in § 3553(a). Id. at *2. “Our

appellate review for reasonableness includes both a procedural component,

encompassing the method by which a sentence was calculated, as well as a

substantive component, which relates to the length of the resulting sentence.” Id.

We have held a procedural error includes a sentence based on a factor not

included in the categories set forth in § 3553(a), so that “[s]ection 3553(a)

mandates consideration of its enumerated factors, and implicitly forbids

consideration of factors outside its scope.” Id. at *3. On the other hand, “[a]

challenge to the sufficiency of the § 3553(a) justifications relied on by the district

court implicates the substantive reasonableness of the resulting sentence.” Id.

Based on these criteria, we examine Mr. Limon’s claim the district court

impermissibly considered his mental health treatment as a factor under § 3553(a)

as both a procedural and substantive challenge. We consider whether the need for

                                         -19-
mental health treatment is a permissible factor to consider under § 3553(a) for the

purpose of conducting a procedural reasonableness analysis and the separate

question of whether the need for such treatment justifies a sentencing variance

under a substantive reasonableness analysis. See id. at *3.



      We first proceed to the procedural reasonableness analysis concerning Mr.

Limon’s sentence. As the government points out, § 3553(a) explicitly provides

“the court ... shall consider ... the need for the sentence imposed ... to provide the

defendant with needed ... medical care ....” 18 U.S.C. § 3553(a)(2)(D). In United

States v. Gay, we held the district court, in imposing a variance under the

§ 3553(a) factors, properly considered the defendant’s mental health disorders and

diagnosis, efforts to seek treatment, and response to treatment. 509 F.3d 1334,

1336-37 (10th Cir. 2007). Thus, the need for medical treatment is a factor

explicitly enumerated in § 3553(a)(2)(D), and, despite Mr. Limon’s contentions

otherwise, it is a factor the district court must consider under a § 3553(a)

procedural reasonableness analysis.



      In making this determination, we reject Mr. Limon’s claim U.S.S.G.

§ 5H1.3 prohibits consideration of Mr. Limon’s health care and treatment under

§ 3553(a). Section 5H1.3 of the Guidelines is advisory and states “[m]ental and

emotional conditions are not ordinarily relevant in determining whether a

                                          -20-
departure is warranted ....” See U.S.S.G. § 5H1.3 (emphasis added).

Consequently, § 5H1.3 clearly applies to departures and not to a variance under

18 U.S.C. § 3553(a), which is at issue here. See, e.g., United States v. Neal, 249

F.3d 1251, 1255-57 & n.4 (10th Cir. 2001) (explaining discouraged factors listed

in subpart 5H1 of the Guidelines apply to “departures”). As a result, the cases

from other circuit courts on which Mr. Limon relies in support of his § 5H1.3

argument involving departures are not particularly instructive. See United States

v. Fonner, 920 F.2d 1330 (7th Cir. 1990); United States v. Doering, 909 F.2d 392

(9th Cir. 1990).



      Having determined § 5H1.3 is not applicable to our analysis in this case,

we turn to the statutes on which Mr. Limon relies in arguing his mental health

treatment cannot be considered in determining his sentence length under

§ 3553(a). 18 U.S.C. § 3582 states, in part:

      (a) Factors to be considered in imposing a term of imprisonment.
      – The court, in determining whether to impose a term of
      imprisonment, and, if a term of imprisonment is to be imposed, in
      determining the length of the term, shall consider the factors set forth
      in section 3553(a) to the extent that they are applicable, recognizing
      that imprisonment is not an appropriate means of promoting
      correction and rehabilitation.

18 U.S.C. § 3582(a) (emphasis added). The other statute, 28 U.S.C. § 994(k),

states, in part: “The [Sentencing] Commission shall insure that the guidelines

reflect the inappropriateness of imposing a sentence to a term of imprisonment

                                        -21-
for the purpose of rehabilitating the defendant or providing the defendant with

needed educational or vocational training, medical care, or other correctional

treatment.” 28 U.S.C. § 994(k) (emphasis added).



      In United States v. Tsosie, we examined these statutes in conjunction with a

district court’s decision to sentence a defendant above the Guidelines range for

the sole purpose of allowing him to participate in a federal substance abuse

program after violating his supervised release. See 376 F.3d 1210, 1212-13 (10th

Cir. 2004). In construing these statutes, we held “Congress intended the

limitations imposed by 18 U.S.C. § 3582(a) and 28 U.S.C. § 994(k) to apply only

when a court is initially ‘imposing a sentence to a term of imprisonment’ for the

crime committed,” and that § 3582(a) “clarif[ies] that it is inappropriate to impose

a sentence to a term of imprisonment solely for rehabilitative purposes or

correctional treatment.” 376 F.3d at 1215. While this court concluded it was

inappropriate to impose a term of imprisonment during the initial sentencing for

the sole purpose of rehabilitation, we held such a prohibition did not apply to

sentences following revocations of supervised release. See id. at 1215, 1217.



      We find Tsosie instructive in this case with respect to its clarification that a

term of imprisonment solely for rehabilitative purposes is inappropriate during

initial sentencing. See 376 F.3d at 1215. Here, it is evident the district court did

                                         -22-
not impose the upward variance solely for Mr. Limon’s mental health treatment or

rehabilitative purposes, but in conjunction with numerous other 18 U.S.C.

§ 3553(a) sentencing factors, so that the prohibitions in 18 U.S.C. § 3582(a) and

28 U.S.C. § 994(k) are not readily implicated.



      Our conclusion is not changed by the other circuit court cases on which Mr.

Limon relies. In United States v. Manzella, the Third Circuit held § 3582(a)

prevented the district court from sentencing the defendant to incarceration “for

the sole purpose of rehabilitation.” See 475 F.3d 152, 153, 155-56, 159, 161 (3d

Cir. 2007) (vacating and remanding for resentencing defendant’s thirty-month

sentence which the district court imposed solely because it believed such a term

was necessary for eligibility in a federal correctional drug treatment program).

Similarly, in United States v. Harris, the Eleventh Circuit held the district court

inappropriately extended the defendant’s term of imprisonment for the purpose of

providing him with rehabilitative treatment. See 990 F.2d 594, 595-97 (11th Cir.

1993) (vacating and remanding for resentencing defendant’s sentence which the

district court imposed consecutive, rather than concurrent, to state sentence for

purpose of serving enough time to undergo full drug treatment program).



      As Mr. Limon contends, in making these determinations, the Third and

Eleventh Circuits both held § 3582(a) prohibits district courts from considering

                                         -23-
rehabilitation needs in either imposing incarceration or determining the length of

that incarceration. See Manzella, 475 F.3d at 159-61; Harris, 990 F.2d at 597.

On the other hand, as the government contends, other circuit courts have held the

prohibition in § 3582(a) only applies to decisions on whether to impose

incarceration, but not in determining the length of a sentence. 1 But even if we

relied on the circuit court cases on which Mr. Limon relies, it appears their

blanket prohibition as to considering the defendant’s rehabilitation needs applied

only because it was the sole reason for the sentencing decision.



      Consequently, even if we used the same reasoning here, the result would be

the same because the district court did not base the upward variance solely on Mr.

Limon’s need for such treatment. Instead, as the government points out, it

considered his need for such treatment in conjunction with his danger to the

community based on the escalation of his criminal activities which became more

numerous and violent, resulting in extraordinarily serious offenses. These are

      1
         See United States v. Hawk Wing, 433 F.3d 622, 630 (8th Cir. 2006)
(holding it is permissible to consider the § 3553(a)(2)(D) factor of rehabilitation
in deciding the appropriate length of sentence after determining the defendant
would receive a term of imprisonment); United States v. Duran, 37 F.3d 557, 561
(9th Cir. 1994) (concluding that “[o]nce imprisonment is chosen as a punishment
... § 3582 does not prohibit consideration of correction and rehabilitation in
determining the length of imprisonment”); United States v. Maier, 975 F.2d 944,
946-47 (2d Cir. 1992) (noting that while imprisonment cannot be a means of
promoting rehabilitation, it is an objective of sentencing because trial judges must
consider, among other things, providing the defendant with needed medical care).


                                        -24-
enumerated factors under § 3553(a) which the district court must consider, and

which, in this case, the district court explained were connected, in part, with Mr.

Limon’s prior neglect in seeking mental health treatment and taking prescribed

medication and acts of medicating himself with drugs and alcohol.



      Having determined, for the purpose of conducting our procedural

reasonableness analysis, that the district court properly considered Mr. Limon’s

need for medical care and treatment, we turn to our substantive reasonableness

analysis. In so doing, we consider whether Mr. Limon’s need for mental health

treatment, together with the other factors on which the district court relied,

justified a variance. See Smart, 2008 WL 570804, at *3. In applying our

deferential abuse of discretion review outlined in Smart, we recognize the district

court in this case did not need to necessarily provide “extraordinary” facts to

justify the upward sentencing variance, but needed only to provide reasoning

sufficient to support the chosen variance. See id. at *6. We believe it met that

standard when it carefully considered the § 3553(a) factors and thoroughly

delineated those it believed warranted the upward variance. In this regard, we

defer not only to the district court’s factual findings in this case, but also to its

determination of the weight to be afforded to such findings. Id. at *7. With

specific regard to Mr. Limon’s mental health treatment, we again note it was not

the sole factor the district court considered in determining a variance was

                                           -25-
warranted, but it was certainly one of the factors justifying the variance for the

reasons set forth by the district court.



      We next turn to Mr. Limon’s argument his sentence is unreasonable

because the district court considered § 3553(a) factors already contemplated in

calculating his sentence under the Guidelines. In making this claim, he contends

the Guidelines already took into account: 1) his extensive criminal history which

was not “out of the ordinary” for someone with the highest criminal history

category; and 2) various Guidelines factors in § 2B3.1 which increased his

offense level calculations based on his using or brandishing a gun in a violent or

threatening way when he forced individuals into the bank vaults.



      While the Guidelines may have taken some of these factors into account,

including Mr. Limon’s criminal history and certain facts relating to his

commission of the armed robberies, for the purpose of increasing his offense

level, the Guidelines are only advisory, reflecting “a rough approximation” of the

sentence necessary for achieving § 3553(a) objectives. See Smart, 2008 WL

570804, at *7. As stated in Smart, the district court could contextually evaluate

each § 3553(a) factor, including those factors the relevant Guidelines already

purport to take in to account, regardless of whether the facts involved were less

than extraordinary. Id. As previously indicated, the facts presented in this case

                                           -26-
are sufficient to justify the contested variance. Indeed, they are arguably

“extraordinary” based on the number of robberies committed, the substantial

number of victims affected, and Mr. Limon’s increasingly violent conduct and

escalating criminal behavior, as evidenced by a pattern or repetition of armed

robberies while on supervised release and despite his repeated prior arrests,

convictions, and imprisonment. Thus, we cannot say the district court abused its

discretion in considering the § 3553(a) factors Mr. Limon suggests were already

taken into consideration by the Guidelines.



      Finally, based on our holding in Smart, we also reject Mr. Limon’s

argument his sentence is unreasonable because his criminal history was not “out

of the ordinary” for a defendant with the highest criminal history category. After

Smart, we no longer require district courts to “first distinguish the defendant’s

characteristics and history from those of the ordinary ... offender contemplated by

the Guidelines.” Id. (quotation marks, citation, and alteration omitted). Even if

we did apply our old standard, our conclusion would be the same, given Mr.

Limon’s armed robbery spree and the other factors outlined by the district court

clearly took him out of the “ordinary offender” category we previously applied.

Thus, it is clear the district court did not abuse its deferential standard in

imposing the contested upward variance.




                                          -27-
                        IV. Conclusion

For these reasons, we AFFIRM Mr. Limon’s sentence.



                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




                              -28-
