United States v. Souvannarath ( 2005 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 14, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-6072
KHAMPHAY SOUVANNARATH, (D.C. No. CR-04-173-R)
(W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
Khamphay Souvannarath pled guilty to being a felon in possession of two
firearms, in violation of 18 U.S.C. § 922(g)(1), and to possession of
methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
The district court imposed a sentence of 120 months as to the first count, and a
sentence of 188 months as to the second count, with the sentences to run
concurrently. Souvannarath was sentenced on February 17, 2005, which was after
the decision was filed in United States v. Booker, 125 S.Ct. 738 (2005). On
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal, Souvannarath challenges his sentence as “unreasoned and unreasonable”
under the Booker standards. Exercising jurisdiction pursuant to 28 U.S.C. §
1291, we affirm.
I. Background
On July 28, 2004, law enforcement officers served a no-knock search
warrant at Souvannarath’s residence in Enid, Oklahoma. Prior to serving the
search warrant, officers stopped Souvannarath’s vehicle and detained him. Under
the driver’s seat of Souvannarath’s vehicle, officers found several coin bags
containing a white powder. Officers also discovered another bag with a larger
amount of white powder. After chemical analysis of the substance, it was
positively identified as 9.33 grams of methamphetamine. During the search of
Souvannarath’s residence, officers found two fully loaded handguns in a bedroom
dresser.
II. Discussion
Souvannarath argues that the district court failed to adequately consider the
sentencing factors set forth in 18 U.S.C. § 3553(a), and as a result, it imposed an
excessive sentence. Additionally, under § 3553(c), he contends that the district
court failed to sufficiently articulate reasons for the 188 month sentence.
We review “the district court’s legal interpretation and application of the
sentencing guidelines de novo and review the court’s factual findings for clear
error, giving due deference to the district court’s application of the guidelines to
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the facts.” United States v. Henry, 164 F.3d 1304, 1310 (10th Cir. 1999).
Moreover, we now review sentences for “reasonableness” looking to the factors
discussed in 18 U.S.C. § 3553(a) for guidance. Booker, 125 S.Ct. at 766; see
United States v. Morales-Chaires, No. 05-1190, 2005 WL 3307395, at *4 (10th
Cir. Dec. 7, 2005) (applying the reasonableness standard to a post-Booker
sentencing).
In light of Souvannarath’s status as a career offender under U.S.S.G. §
4B1.1, a total offense level of 29, and a criminal history category of VI, the
presentence report calculated his guideline range to be 151 to 188 months. 1
Neither Souvannarath nor the government raised any objections to the presentence
report. At sentencing, Souvannarath asked the district court for leniency and a
sentence of six years. The government made no recommendation. After
considering the applicable guideline range, the district court stated:
Well, Mr. Souvannarath, I have read and considered the presentence
report and your case . . . and I must say that based upon your history,
I just–I just disagree with your assessment of the case. I do
understand that I’m not bound by the guidelines, but I think in this
case I certainly have to give them deference and I think they’re
appropriate in this case, and because of your history of violence and
your involvement with weapons and drugs, that the high end of the
guidelines are appropriate in your case.
Vol. II at 6.
1
The statutory maximum for Souvannarath’s firearms offense was 120 months.
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We conclude that the district court’s statements reflect that it properly
considered the sentencing factors enumerated in § 3553(a). See United States v.
Kelley, 359 F.3d 1302, 1305 (10th Cir. 2005) (stating that we do not require the
district court “to consider individually each factor listed in § 3553(a) before
issuing a sentence,” “nor do we demand that the district court ‘recite any magic
words’ to show us that it fulfilled its responsibility to be mindful of the factors
that Congress has instructed it to consider”) (citation omitted). Similarly, we
determine that the district court satisfied its burden to “state in open court the
reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). On a
final note, we observe that there is nothing in the record to suggest that
Souvannarath’s 188 month sentence, although at the high end of the guideline
range, is unreasonable.
Accordingly, Souvannarath’s sentence is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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