                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      October 28, 2010
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 10-3080
 ISHA JACKSON,                                    (D.C. No. 2:09-CR-20124-KHV-1)
                                                              (D. Kan.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.



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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Defendant/Appellant Isha Jackson pled guilty to one count of bank robbery with a

deadly weapon in violation of 18 U.S.C. § 2113(a) and (d), and one count of brandishing



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The

district court sentenced Jackson to fifty-eight months’ imprisonment on the bank robbery

count and eighty-four months’ imprisonment on the brandishing count, to be served

consecutively. The bank robbery sentence is in the middle of the advisory sentencing

guideline range, and the firearm sentence is equal to the mandatory statutory minimum.

On appeal, Jackson contends that his sentence is substantively unreasonable. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                              I

       On September 21, 2009, Jackson robbed a bank in Lenexa, Kansas. He pointed a

handgun at a bank teller and demanded money, which he received. While fleeing the

scene in a vehicle, Jackson led pursuing officers on a high-speed chase. During the chase,

Jackson ran a stop sign and struck another vehicle.

       The presentence report (“PSR”) states that the guideline sentence on the

brandishing charge is the statutory mandatory minimum of seven years or eighty-four

months, to be served consecutively to any sentence on the bank robbery charge. ROA,

Vol. 3, at 10; see also 18 U.S.C. § 924(c)(1)(A)(ii). The PSR states that the base offense

level on the bank robbery charge is 20. The PSR adds two levels because the property of

a financial institution was taken, one level because the loss was between $10,000 and

$50,000, and two levels for obstruction of justice. Two levels were deducted for

acceptance of responsibility, resulting in a total offense level of 23. ROA, Vol. 3, at 9-10.

The PSR assigns Jackson two criminal history points for a prior conviction of robbery in

                                             2
the second degree, resulting in a criminal history category of II and an advisory guideline

range of fifty-one to sixty-three months. Id. at 15.

       Jackson filed a motion for a variance, arguing that his “crime was a poorly

considered and impulsive reaction to what Mr. Jackson perceived as desperate financial

circumstances which does not prefigure future criminality.”1 Id., Vol. 1, at 23. The

district court denied the motion and sentenced Jackson to fifty-eight months’

imprisonment on the bank robbery count and eighty-four months’ imprisonment on the

firearm count, to be served consecutively. Id. at 32.

                                             II

       A. Standard of Review

       Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), this court reviews sentences for procedural and substantive reasonableness.

United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). Here, Jackson argues

only that his sentence is substantively unreasonable. Substantive reasonableness is

reviewed under an abuse of discretion standard, United States v. Sayad, 589 F.3d 1110,

1117 (10th Cir. 2009), and a within-guidelines sentence is afforded a rebuttable

presumption of reasonableness on appeal. United States v. Beltran, 571 F.3d 1013, 1018

(10th Cir. 2009); United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir.

2008). This standard is deferential, and “[t]he defendant may rebut this presumption by

       1
        Jackson also argued that a one-level variance was appropriate to fully account for
his acceptance of responsibility. He does not appeal the denial of his motion for a
variance on that basis.

                                              3
showing that his sentence is unreasonable in light of the sentencing factors delineated in

18 U.S.C. § 3553(a).” Alapizco-Valenzuela, 546 F.3d at 1215. However, “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.” Gall v. United States,

552 U.S. 38, 51 (2007).

       B. Discussion

       Jackson argues that, when it denied his motion for a variance, the district court

failed to give adequate weight to the circumstances of his crime and his psychological

condition. At the sentencing hearing, Jackson presented evidence that, just before the

robbery, he had become homeless and jobless. His girlfriend was in jail and needed bond

money, and Jackson was driving a rental car which was due to be returned but that he

could not afford to return. A clinical psychologist testified that Jackson suffered from an

adjustment disorder that compromised his ability to respond to stress. The psychologist

also testified that Jackson would benefit from treatment and was not likely to re-offend.

Counsel argued for a reduced sentence on the bank robbery count because Jackson would

already be sentenced to a significant period of imprisonment due to the statutory

minimum on the brandishing count.

       In denying Jackson’s motion for a variance, the district court stated,

       It seems to me that this particular bank robbery fit well within the heartland
       of bank robberies that I’ve seen in more than over 18 years on the bench. I
       can’t say that I ever saw one that was well thought out and maybe more
       than other crimes, they seem to be almost bizarre in terms of the motives
       why people do them and the methods that they use. . . . [Bank robbers] tend

                                               4
       to always be desperate people who have no coping mechanisms and no
       ability to rationally develop a better plan for dealing with the stress in their
       lives. . . . So I don’t think there’s anything in the factual background of this
       case which takes the case outside of the guideline heartland – the heartland
       of the cases that the guidelines were developed to address.

ROA, Vol. 2, at 100-01. Thus, the district court concluded that Jackson’s explanation for

his crime was not a reason to vary downward. The district court also noted that Jackson

had a prior felony conviction for robbery in the second degree, and that he “placed the

lives of a large number of people at great risk” by leading the police on a chase. Id. at

102. After discussing several of the 18 U.S.C. § 3553(a) factors, the court imposed a

sentence of fifty-eight months on the bank robbery count, in the middle of the guideline

range. The court imposed the mandatory statutory minimum on the brandishing count.

       Jackson has not rebutted the presumption that his sentence is reasonable. The

district court considered the § 3553(a) factors and concluded that the circumstances of

Jackson’s case did not warrant a variance. While he may disagree with the district court’s

view of the significance of his explanation for his actions and the weight that the district

court gave to various § 3553(a) factors, Jackson has not shown that the district court

abused its discretion in imposing his sentence.

       AFFIRMED.

                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Chief Judge




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