     Case: 09-10310     Document: 00511110181          Page: 1    Date Filed: 05/13/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 13, 2010
                                       No. 09-10310
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BARRY KENT HAATVEDT,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CR-269-1


Before BARKSDALE, GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
        Barry Kent Haatvedt appeals the 46-month sentence imposed following his
guilty plea conviction for bribery of a public official under 18 U.S.C. §
201(b)(2)(c). He admitted that he had illegally provided tobacco to an inmate
for sale to other inmates and had received part of the profit from the sales.
Haatvedt argues that the district court should have departed or varied
downward from the sentencing guidelines range because he was charged under
the bribery statute rather than the statute prohibiting the smuggling of



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-10310    Document: 00511110181 Page: 2         Date Filed: 05/13/2010
                                 No. 09-10310

contraband, which would have considered the relative dangerousness of the
smuggled item and resulted in a lesser sentencing guidelines range. Haatvedt
argues that the district court did not properly consider the 18 U.S.C. § 3553(a)
factors and imposed a substantively unreasonable sentence that was much
greater than necessary to meet the statutory goals.
      In reviewing a sentence, this court should “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). When the district court imposes
a sentence within a properly calculated guidelines range and gives proper weight
to the Guidelines and the § 3553(a) factors, this court gives “great deference to
that sentence and will infer that the judge has considered all the factors for a
fair sentence set forth in the Guidelines in light of the sentencing considerations
set out in § 3553(a).” United States v. Campos-Maldonado, 531 F.3d 337, 338
(5th Cir.) (internal quotation marks and citation omitted), cert. denied, 129 S. Ct.
328 (2008). “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.” Id.
      In this case the district court considered Haatvedt’s arguments and his
request for a downward departure or variance, but stated that a departure or
variance was not justified because of the serious nature of the offense and the
need to deter criminal conduct by officers supervising and guarding prisoners.
The district court also considered the amount of remuneration received by
Haatvedt for selling the tobacco to be an important factor. The district court
stated that it had even considered making an upward variance from the
guidelines range, but that it ultimately found the 46-month sentence warranted
after evaluating the § 3553(a) factors.
      Haatvedt may be correct that the sentence imposed was higher than it
would have been if the Government had chosen to pursue the smuggling charge
rather than the bribery charge. But a defendant has no constitutional right to
choose which of two applicable statutes will be the basis for his indictment or the

                                          2
   Case: 09-10310   Document: 00511110181 Page: 3        Date Filed: 05/13/2010
                                No. 09-10310

applicable penalty scheme. See United States v. Molina, 530 F.3d 326, 330 (5th
Cir. 2008). A prosecutor has the discretion to choose between different statutory
penalty schemes applying to the same conduct as long they are not based on an
unjustifiable standard, such as race, religion, or some other arbitrary
classification. Id. at 332. There was no evidence in the record that the charge
was made on a discriminatory basis.
      Haatvedt has not shown that the district court erred in balancing the
sentencing factors or that the guideline sentence imposed was an abuse of
discretion. Haatvedt has not rebutted the presumption of reasonableness that
applies to his guidelines sentence. Accordingly, the sentence is AFFIRMED.




                                       3
