United States v. Ibanez

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 26, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1337
JACOB GABRIEL IBANEZ,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:17-CR-00039-RBJ-1)
_________________________________
Submitted on the briefs * :
Virginia L. Grady, Federal Public Defender, John T. Carlson, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Robert C. Troyer, United States Attorney, Michael C. Johnson, Assistant
United States Attorney, Denver, Colorado, for Plaintiff-Appellee.
_________________________________
Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
*
The parties have not requested oral argument, and it would not
materially aid our consideration of the appeal. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based
on the briefs.
Mr. Jacob Ibanez was convicted of unlawfully possessing a gun. On
appeal, he challenges his 50-month sentence on the ground that it was
substantively unreasonable. This challenge requires Mr. Ibanez to show
that the ultimate sentence was unreasonable based on the statutory
sentencing factors. United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th
Cir. 2011). But Mr. Ibanez fails to address any of the statutory factors.
Instead, he attacks the reasonableness of a guideline provision invoked by
the district court. Even if we were to agree with Mr. Ibanez’s criticism of
the guideline provision, this criticism would not implicate the
reasonableness of the sentence itself. As a result, we affirm the sentence.
1. Standard of Review
In reviewing Mr. Ibanez’s challenge, we apply the abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Under
this standard, we can reverse only if the 50-month sentence was arbitrary,
capricious, whimsical, or manifestly unreasonable. United States v.
Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009).
2. Substantive Reasonableness
We apply this standard based on the nature of the underlying
appellate contention. In considering a substantive-reasonableness
challenge, we presume that the sentence was reasonable if it fell within the
applicable guideline range. United States v. Alvarez-Bernabe, 626 F.3d
1161, 1165 (10th Cir. 2010). To rebut this presumption, the defendant
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would need to show that the statutory sentencing factors render the
sentence unreasonable. United States v. Kristl, 437 F.3d 1050, 1054 (10th
Cir. 2006) (per curiam).
3. Mr. Ibanez’s Appellate Argument
The 50-month sentence fell within the guideline range, triggering the
presumption of reasonableness. With this presumption, we consider the
district court’s explanation for the sentence. United States v. Barnes, 890
F.3d 910, 916-17 (10th Cir. 2018). This explanation reflected the district
court’s consideration of Mr. Ibanez’s unlawful possession of two guns, a
number of felonies in his past, a history of violating probation and
absconding from parole, his commission of the present offense while on
supervised release, a substantial arrearage in child support, his possession
of semiautomatic weapons while abusing substances, a continued threat to
community safety, and the guideline range.
Mr. Ibanez does not question the presumption of reasonableness or
argue that a 50-month term is unreasonable. He instead argues that the
district court increased the offense level based on a guideline that was
itself unreasonable, U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(B).
But even if the guideline had been unreasonable, we would have little
cause to question the reasonableness of the sentence itself. See United
States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (per curiam)
(“Whatever the district court’s views as to the Sentencing Commission’s
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policy judgment underlying a particular guidelines provision, our proper
role on appeal is only to determine whether the district court abused its
discretion by imposing a substantively unreasonable sentence on a
particular offender.”).
The reasonableness of the guideline was an appropriate consideration
for the district court but is not material here. If the district court had
agreed with Mr. Ibanez’s criticism of the guideline, the court could have
chosen not to apply the enhancement. United States v. Lopez-Macias, 661
F.3d 485, 489–90 (10th Cir. 2011). But the district court also had the
discretion to follow the guideline. United States v. Alvarez-Bernabe, 626
F.3d 1161, 1165–66 (10th Cir. 2010); see United States v. Barron, 557
F.3d 866, 870–71 (8th Cir. 2009) (stating that even if a district court could
disregard the guideline provision (§ 2K2.1(a)(4)(B)) on policy grounds, the
court could also follow the provision regardless of whether it reflects a
congressional policy judgment or an empirical approach). In exercising this
discretion, the district court explained why it was choosing to follow the
guideline: “[I]t is rational to distinguish high-capacity magazines for
harsher punishment because . . . high-capacity magazines have the
potential to spew out more bullets and cause more harm.” R. vol. 3 at
27–28. This explanation fell within the district court’s considerable realm
of discretion.
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The outcome would remain the same even if we could otherwise
consider the validity of the guideline. Mr. Ibanez’s challenge stems from
the origin of the guideline provision. It originated with a federal statute
banning the possession of semiautomatic assault weapons. Public Safety &
Recreational Firearms Use Protection Act, Pub. L. No. 103-322, Title XI,
Subtitle A, § 110102, 108 Stat. 1996 (1994). With passage of the statute,
the U.S. Sentencing Commission adopted a guideline provision increasing
the offense level when a prohibited person possesses a semiautomatic
assault weapon. U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(B).
Though the federal statute lapsed in 2004, the Sentencing
Commission retained the substance of the guideline provision, stating that
the enhancement applies when a semiautomatic weapon can fit a magazine
capable of accepting 15 or more rounds of ammunition. Id. § 2K2.1 cmt. 2.
In retaining the substance of the provision, the Sentencing Commission
determined that the public is endangered when prohibited persons possess
large-capacity magazines. United States v. Myers, 553 F.3d 328, 331 (4th
Cir. 2009).
For this determination, the Sentencing Commission could rely on its
own policy judgment notwithstanding the expiration of Congress’s ban on
semiautomatic weapons. See United States v. Barron, 557 F.3d 866, 871
(8th Cir. 2009) (stating that the district court acted reasonably in following
the Sentencing Commission’s policy judgment on large-capacity magazines
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notwithstanding Congress’s repeal of the ban); see also United States v.
Roberts, 442 F.3d 128, 130 (2d Cir. 2006) (per curiam) (stating that the
Sentencing Commission could incorporate the definition of prohibited
magazines after the congressional ban had been repealed). 1 In light of the
Sentencing Commission’s authority to make its own policy judgments, the
guideline enhancement for possession of large-capacity magazines is not
undermined by expiration of the congressional ban.
4. Conclusion
Mr. Ibanez does not challenge the reasonableness of the 50-month
sentence. He instead challenges the reasonableness of a guideline provision
authorizing an enhancement. In our view, the Sentencing Commission
validly exercised its policymaking judgment by adopting the guideline
enhancement. But even if the Sentencing Commission’s policymaking
judgment had been misguided, this fact would not have rendered Mr.
1
Even after expiration of the congressional ban, numerous states and
municipalities have continued to criminalize possession of large-capacity
magazines. Cal. Penal Code § 32310(c); Colo. Rev. Stat. Ann. § 18-12-302;
Conn. Gen. Stat. § 53-202w(b); Hawaii Rev. Stats. Ann. § 134-8(c); Md.
Code Ann., Crim. Law § 4-305(b); Mass. Gen. Laws Ann. ch. 269, § 10(m);
N.J. Stat. Ann. § 2C:39-3(j); N.Y. Penal Law § 265.02(8); Vt. Stat. Ann.
tit. 13, § 4021(a); City of Los Angeles, Cal. Mun. Code § 46.30(b)(1); City
of Oakland, Cal. Ord. Code § 9.38.040(A); City of San Francisco, Cal.
Police Code § 619(c); City of Sunnyvale, Cal. Mun. Code § 9.44.50; City
of Tiburon, Cal. Ord. Code § 32-35; City of Aurora, Ill. Ord. Code § 29-
49(a); City of Burbank, Ill. Ord. Code § 9-64.1(d); City of Chicago, Ill.
Mun. Code 8-20-085(b); City of Highland Park, Ill. Ord. Code § 136.005;
Cook Cty., Ill. Ord. Code § 54-212(a); City of Philadelphia, Pa. Code § 10-
821b(2)(c), (h), (3); accord D.C. Code § 7-2506.01(b).
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Ibanez’s sentence unreasonable. As a result, we reject his challenge to the
sentence.
Affirmed.
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