                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     February 28, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-6236
          v.                                           (W .D. Oklahoma)
 JOH N D OE, *                                    (D.C. No. CR-05-113-1-C)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT **


Before TACH A, Chief Circuit Judge, PO RFILIO and A ND ER SO N, 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.




      *
       W e grant appellant’s unopposed motion to conceal his true identity
throughout this order and judgment, and we make permanent the provisional seal
placed on this entire matter on December 5, 2006.
      **
        This order and judgment is not binding precedent except under the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.
      Appellant pled guilty to two counts of possession with intent to distribute

methamphetamine. He was sentenced to 235 months’ imprisonment followed by

five years of supervised release. He appeals his sentence, which we affirm.



                                 BACKGROUND

      On M ay 19, 2005, United States Postal Inspection Service (“USPIS”)

authorities intercepted a suspicious package mailed from Long Beach, California

to an individual named “Chris Hall” in Norman, Oklahoma. On M ay 20, the

authorities intercepted another suspicious package also mailed from Long Beach

and addressed to the same “Chris Hall” but in Ponca City, Oklahoma. W hen a

drug-sniffing dog alerted to both packages, search warrants were obtained and a

search of the two packages revealed they contained methamphetamine. 1

Controlled deliveries of the packages were made, following which appellant was

arrested in N orman, Oklahoma, and two other individuals, Alfred Lee M oore, Jr.

and Buck Allen Jones, were arrested in Ponca City.

      Appellant apparently began cooperating with law authorities after his

arrest. He offered information about the crimes with which he was charged, and

also offered to help authorities identify his California source. Although appellant

identified his California source, apparently no federal investigation and



      1
       One package also contained a substance which field tested positive for
cocaine.

                                        -2-
prosecution were successfully initiated. Instead, the California source was

arrested by local law enforcement authorities in California. Appellant also

offered to provide information about another individual being prosecuted on

unrelated charges in Oklahoma, but authorities ultimately concluded appellant

was not reliable and he was never called as a w itness to testify at that individual’s

trial. Appellant testified at his sentencing hearing that he believed that his

cooperation induced M oore to cooperate.

      U ltimately, a four-count superceding indictment charged appellant with tw o

counts: one for possession with intent to distribute methamphetamine and one for

possession with intent to distribute a mixture or substance containing a detectable

amount of methamphetamine, all in violation of 21 U.S.C. § 841(a)(1). The

indictment charged M oore and Jones with possession of methamphetamine and of

a mixture or substance containing a detectable amount of methamphetamine, and

aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Jones pled guilty pursuant to a plea agreement, and appellant and M oore

proceeded to trial.

      D uring the trial, appellant, without a plea bargain, pled guilty to the two

counts against him. In exchange for his guilty plea, the government agreed to

strike its Notice of Prior Convictions which it had filed pursuant to 21 U.S.C.

§ 851. After M oore’s trial ended in a hung jury, he pled guilty to two counts of




                                          -3-
using a cellular telephone to facilitate possession of methamphetamine with intent

to distribute.

       Jones was the first one sentenced. The government filed a motion for

downward departure based on his provision of substantial assistance, including

testifying at the trial of M oore and appellant. The district court granted the

motion, and Jones was sentenced to forty months’ imprisonment, followed by five

years of supervised release. M oore was then sentenced to two forty-eight month

sentences, to run consecutively, followed by one year of supervised release.

       Finally, appellant was sentenced to two concurrent 235-month sentences,

followed by five years of supervised release. Prior to his sentencing hearing,

appellant filed a sentencing memorandum asking the court for a downward

departure or deviation from the advisory sentencing range under the United States

Sentencing Commission, Guidelines M anual (“USSG ”). Also prior to the

sentencing hearing, the government filed a motion for an acceptance of

responsibility downward adjustment to reduce his total offense level by one point

if the court awarded a two-point reduction for acceptance of responsibility.

Furthermore, in anticipation of his sentencing hearing, the United States

Probation Department prepared a presentence report (“PSR”), which assessed

appellant a total adjusted offense level of thirty-seven and a criminal history

category of VI. That yielded an advisory Guideline range of 360 months to life.

Appellant raised a number of objections, which the district court addressed at

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appellant’s sentencing hearing. After upholding two of his objections, the court

determined that appellant’s total adjusted offense level was thirty-three, which,

with a criminal history category of VI, yielded a Guideline range of 235 to 293

months.

      During the sentencing hearing, appellant again sought a downward

departure or a variance from the advisory guideline range on the basis of his

cooperation. 2 The district court found “there are no circumstances warranting a

departure from the guidelines in this case.” Tr. of Sentencing Hr’g at 39, R. Vol.

3. The court recognized, however, that “[t]hat does not resolve the question . . .

whether the guidelines sentence is an appropriate sentence.” Id. The court went

on to note that “[t]he most compelling reasons that I see for a sentence outside the

guidelines in this case is that I believe that [appellant] should have been

considered for a downward departure.” Id. at 40. After acknowledging that the

court could not “force the government to move for a departure for substantial

assistance and I can’t depart absent that motion,” id., the court proceeded to



      2
       W e have recently clarified the difference between a departure and a
variance with respect to an advisory Guidelines range:
      [W ]hen a court reaches a sentence above or below the recommended
      Guidelines range through application of Chapter Four or Five of the
      Sentencing Guidelines, the resulting increase or decrease is referred
      to as a “departure.” When a court enhances or detracts from the
      recommended range through application of § 3553(a) factors,
      however, the increase or decrease is called a “variance.”
United States v. Atencio, No. 05-2279, 2007 W L 102977, at *5 n.1 (10th Cir.
Jan. 17, 2007).

                                         -5-
inquire whether a variance from the guideline range was appropriate in light of

appellant’s assistance to the government. At this point, a cell phone began

ringing, and the district court directed the person with the phone to leave the

hearing. The court then pronounced sentence as follow s:

       I believe that a substantial and lengthy sentence is necessary to
       protect the public. I believe a substantial and lengthy sentence is
       necessary to serve as an example to others, even your own children,
       as to w hat happens w hen lives are lived without regard for the law.

             I believe that a substantial sentence is necessary in order to
       provide any kind of drug rehabilitation and treatment for you so that
       you can return eventually to society drug-free.

             Considering all of the goals of sentencing, I think that the
       guideline range is appropriate in this case based primarily on your
       substantial criminal history. It is therefore my judgment that you be
       imprisoned for a term of 235 months on all counts, to be served
       concurrently.

Id. at 41.

       Appellant appeals, arguing “the district court erred as a matter of law

because it did not take the defendant’s cooperation with the government into

account and determined it was compelled to impose a sentence within the range of

imprisonment established by the United States Sentencing Guidelines.”

Appellant’s Br. at 2. W e disagree.




                                         -6-
                                  D ISC USSIO N

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

220 (2005), the formerly mandatory federal sentencing Guidelines are now

advisory. “Post-Booker, we review sentencing decisions for reasonableness,

which has both procedural and substantive components.” Atencio, 2007 W L

102977, at *6. “In setting a procedurally reasonable sentence, a district court

must calculate the proper advisory Guidelines range and apply the factors set

forth in § 3553(a).” Id. “A substantively reasonable sentence ultimately reflects

the gravity of the crime and the § 3553(a) factors as applied to the case.” Id.

      Because district courts continue to calculate a Guidelines sentence as part

of their determination of a reasonable sentence, “we continue to review the

district court’s application of the Guidelines de novo, and we review any factual

findings for clear error.” U nited States v. Townley, 472 F.3d 1267, 1275-76 (10th

Cir. 2007). W here a district court “correctly applies the G uidelines and imposes a

sentence within the applicable Guideline range, that sentence ‘is entitled to a

rebuttable presumption of reasonableness.’” Id. at 1276 (quoting United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam)).

      USSG §5K1.1 provides that:

      Upon motion of the government stating that the defendant has
      provided substantial assistance in the investigation or prosecution of
      another person who has committed an offense, the court may depart
      from the guidelines.



                                         -7-
Prior to Booker, we held that “a district court’s authority to consider a

defendant’s substantial assistance claim at sentencing is conditioned upon a prior

motion of the government.” U nited States v. Duncan, 242 F.2d 940, 944 (10th

Cir. 2001). W hile w e have declined to address “the continued vitality of this rule

in the aftermath of . . . Booker,” United States v. Doe, 398 F.3d 1254, 1259 n.7

(10th Cir. 2005), we need not determine that issue in this case. The district court

in this case clearly recognized that, despite the absence of a motion to depart

downward, it had the authority to vary from the advisory Guideline range if the

sentencing factors in 18 U.S.C. § 3553(a) so counseled. Id. at 1260-61. The

district court specifically considered whether appellant’s cooperation with and

assistance to the government supported a variance. Ultimately, the court

concluded that the sentencing factors in § 3553(a), particularly the appellant’s

criminal history and the need to protect the public from further crimes, did not

support a variance. It accordingly sentenced appellant in accordance with the low

end of the advisory Guideline range. W e conclude that the sentence imposed was

both reasoned and reasonable.



                                  C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the sentence in this case.

                                                ENTERED FOR THE COURT

                                                Stephen H. Anderson
                                                Circuit Judge

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