United States v. White

FILED
United States Court of Appeals
Tenth Circuit
February 15, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-3019
v. (D. Kansas)
JOSEPH N. WHITE, (D.C. No. 06-CR-10186-MLB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.
Pursuant to a plea agreement, defendant and appellant Joseph N. White pled
guilty to one count of knowing possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c). The district court sua
sponte advised the parties it was considering an upward departure from the
advisory Guideline range. 1 After giving the parties an opportunity to respond, the
*
This order and judgment is not binding precedent except under the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.
1
While we use the word “departure” throughout most of this opinion, we
occasionally use the word “variance.” The district court used language suggestive
of both, and, as our discussion below indicates, it is of no moment whether we
(continued...)
court departed upward from the Guideline range by eighty-seven months, and
sentenced White to 147 months’ imprisonment. He appeals his sentence, which
we affirm.
BACKGROUND
On April 12, 2006, during an investigation by the Sedgwick County,
Kansas, Sheriff’s Office, White sold approximately .43 grams of crack cocaine to
a confidential informant at a convenience store in Wichita, Kansas. During the
sale, White’s two young children were in his car at the convenience store. Law
enforcement officers conducting surveillance saw White, another man, and two
young children drive from White’s residence to the convenience store in a Ford
Crown Victoria.
On April 25, 2006, White sold .40 grams of crack cocaine to a confidential
informant at White’s residence. During the sale, White’s two young children
were inside his residence, which is within 1,000 feet of a school. On April 27,
2006, law enforcement officers executed a search warrant at White’s residence
and found 11.45 grams of crack cocaine, a box of baggies, a digital scale, two
1
(...continued)
call the above-Guidelines sentence in this case a “departure” or a “variance.” A
variance occurs “[w]hen a court enhances or detracts from the recommended
range through application of § 3553(a) factors.” United States v. Atencio, 476
F.3d 1099, 1101 n.1 (10th Cir. 2007). A departure occurs “when a court reaches a
sentence above or below the recommended Guidelines range through application
of Chapters Four or Five of the Sentencing Guidelines.” Id.-2-
razor blades, and a plate. The plate, scale and razor blades were covered with a
powdery residue. The officers also found White’s four-year-old son in a
bedroom, in which they also found a loaded 9 mm Glock pistol on a closet shelf.
A magazine containing additional rounds was on the shelf next to the gun. In the
living room, officers found a loaded .45 caliber Glock Model 21 on the top shelf
of a computer desk. 2 Beneath White’s clothing in another bedroom closet, the
officers found an Olympic Arms PCR3.223 caliber rifle with two 30-round
magazines, a double magazine adapter, an LED light, and a thumb-activated laser
light. In that same bedroom, the officers found more ammunition magazines for
the Glock handguns, a gun box for a .357 Glock, one round of .357 ammunition,
and a plastic cover for a digital scale that had marijuana and cocaine residue on it.
Additionally, the officers found a rifle in a gun case in the trunk of a Ford Crown
Victoria parked in the driveway. This was the same car used to deliver the crack
cocaine to the convenience store on April 12.
On May 9, 2006, the confidential informant called White and arranged to
purchase crack cocaine. The confidential informant met with White’s co-
defendant, Shonnetta Gabriel, in Wichita and bought .45 grams of crack cocaine.
The residence where the transaction took place is within 1,000 feet of an
elementary school. On May 16, the confidential informant purchased .40 grams
2
Although both Glocks were loaded, apparently neither had a bullet in the
chamber. PSR at ¶ 24, R. Vol. V.
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of crack cocaine from White at an Autozone in Wichita. Law enforcement
personnel conducting surveillance of White’s residence saw him leave his
residence and drive to the Autozone. On May 19, the confidential informant
called White and arranged to purchase crack cocaine at the same Autozone. Law
enforcement officers conducting surveillance of White’s residence saw another
black male, Wendale Gasper, Sr., leave the residence and drive to the Autozone,
where he sold .40 grams of crack cocaine to the confidential informant. On May
23, the confidential informant called White and arranged another purchase of
crack cocaine at the same Autozone. Law enforcement officers observed co-
defendant Gabriel leave White’s residence, drive to the Autozone, and sell .37
grams of crack cocaine to the confidential informant.
On May 30, officers again executed a search warrant at White’s residence.
Two of White’s children, ages eight and two, were in the living room. In the
southeast bedroom, where White was sleeping with his four-year-old son, officers
found an unloaded 9mm Taurus handgun in a gun case on a top shelf in the closet,
a plastic baggie with 2.54 grams of crack cocaine under the mattress, and White’s
wallet containing $245 on the nightstand. In the kitchen, officers found three
scales, one of which had a powdery residue which tested positive for cocaine. In
the dining room, officers found one round of 9 mm ammunition in a cell phone
box. In the children’s bedroom, they found a plate on which there was a razor
blade and a white powdery residue.
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On June 7, 2006, the confidential informant called White and asked to
purchase some crack cocaine. A few minutes later, the confidential informant
received a call from co-defendant Gabriel concerning the sale. Law enforcement
personnel conducting surveillance of White’s house saw White and Gabriel drive
away and meet another man. A short time later, officers followed Gabriel to a gas
station where Gabriel met a female. Following this meeting, officers stopped the
female and found crack cocaine in her vehicle. Officers watched Gabriel then
drive and pick up White. Later that same day, Gabriel called the confidential
informant and arranged to meet at a restaurant in Wichita. They did so, and the
confidential informant purchased .37 grams of cocaine from Gabriel. The
restaurant is within 1,000 feet of an elementary school. Later that evening,
officers stopped White’s vehicle for a traffic violation and found four baggies
containing approximately 4.42 grams of crack cocaine in White’s underwear and a
baggie containing an additional .19 grams of crack cocaine in the driver’s side
door of the car.
On August 22, 2006, White was charged in a sixteen-count indictment with:
one count of conspiracy to possess with intent to distribute crack cocaine; four
counts of distributing crack cocaine; three counts of distributing crack cocaine
within 1,000 feet of a public school; two counts of possession with intent to
distribute crack cocaine within 1,000 feet of a public school; two counts of
possession of a firearm in furtherance of a drug trafficking crime; one count of
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possession with the intent to distribute crack cocaine; one count of maintaining a
residence within 1,000 feet of a public school for the purpose of distributing
crack cocaine; and two counts of being an unlawful user of a controlled substance
in possession of a firearm.
On October 20, 2006, White pled guilty to one count of possession of a
firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c). As stated in his plea agreement, White admitted the following:
On April 27, 2006, in Wichita, Kansas, the defendant possessed a
Glock Model 17, 9mm handgun, and a Glock Model 21, .45 caliber
handgun. At the time he possessed these firearms the defendant was
engaged in the distribution of crack cocaine. These firearms were for
the defendant’s protection and used by him to further his drug
trafficking.
R. Vol. I, doc. 27 at 2. In exchange for his plea of guilty to this one count (count
12 of the 16-count indictment), the government agreed not to file any additional
charges against White, to recommend a sentence at the low end of the applicable
guideline range, and in any event, not to exceed 60 months, to recommend a
three-level reduction for acceptance of responsibility and to not request an
upward departure if White agreed not to request a downward departure.
In preparation for sentencing, the United States Probation Office prepared a
presentence report (“PSR”). The PSR noted that the minimum statutory term of
imprisonment for a violation of 18 U.S.C. § 924(c) is five years, and that the
Guideline sentence is that minimum statutory term. The PSR found no factors
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warranting a departure from the Guideline sentence or a sentence outside the
advisory Guideline range. Neither the government nor White objected to the
PSR.
On December 8, 2006, the district court sent a letter to all counsel stating
that it was contemplating an upward departure to a sentence greater than five
years. The court explained its reasons as follows:
For reasons not apparent in the record, defendant has been able
to negotiate a guilty plea to count 12 of a 16 count indictment
charging numerous serious drug and firearm violations. Count 12
charges a violation of 18 U.S.C. § 924(c) which carries a mandatory
minimum sentence of five years imprisonment and maximum
sentence of life in prison. Although the advisory guidelines do not
offer any explanation for what seems to be an illogical result, the
guideline sentence is the same as the mandatory minimum sentence.
I am hard pressed to understand how the Sentencing Commission
would come to such a conclusion when Congress presumably
believed that a § 924(c) violation was sufficiently serious to carry a
maximum sentence of life imprisonment. Nevertheless, [United
States Sentencing Guideline (“USSG”)] § 2K2.4, Application Note
2(B), provides for an upward departure.[ 3]
3
USSG § 2K2.4(b) provides, “if the defendant . . . was convicted of
violating section 924(c) . . . the guideline sentence is the minimum term of
imprisonment required by statute.” USSG § 2K2.4, comment. (n.2(B)) provides
as follows:
Upward Departure Provision–In a case in which the guideline
sentence is determined under subsection (b), a sentence above the
minimum term required by 18 U.S.C. § 924(c) . . . is an upward
departure from the guideline sentence. A departure may be
warranted, for example, to reflect the seriousness of the defendant’s
criminal history in a case in which the defendant is convicted of an
18 U.S.C. § 924(c) . . . offense but is not determined to be a career
offender.
(continued...)
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Section 5K2.21 of the advisory guidelines allows me to “ . . .
depart upward to reflect the actual seriousness of the offense based
on conduct (1) underlying a charge dismissed as part of a plea
agreement in the case or underlying a potential charge not pursued in
the case as part of a plea agreement or for any other reasons; and (2)
that did not enter into a determination of the applicable guideline
range.”
The Tenth Circuit has recognized the application of § 5K2.21
in both pre-Booker and post-Booker cases: United States v. Gilmore,
62 Fed. Appx. 857 (10th Cir. 2003), and United States v. Zunie, 444
F.3d 1230, 1237 (10th Cir. 2006).
...
Taken together, then, 18 U.S.C. § 3661[ 4] and the advisory guidelines
allow me to consider many more things about defendant than the
guideline sentence, and most of them are unfavorable to him.
Letter dated 12/08/06 at 1-2, R. Vol. I, tab 44, Ex. A. The court then discussed
the plea agreement, including White’s acknowledgment that the government’s
recommendation of a five-year sentence was not binding on the court. The court
recounted the plea colloquy, in which the court discussed relevant conduct and
informed White that “all these other counts of this indictment, even though you’re
3
(...continued)
USSG § 2K2.4, comment. (n.2(B)).
4
18 U.S.C. § 3661 provides as follows:
No limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.
18 U.S.C. § 3661.
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not pleading guilty to these counts, can be taken into consideration in setting your
sentence.” Id. at 4. The court subsequently described all of White’s conduct
underlying the remaining counts of the sixteen-count indictment, concluding:
Notwithstanding these events in April 2006, defendant
continued to sell crack cocaine in May 2006, either personally or
through others, including his codefendant. On May 30, 2006,
Defendant’s residence was again searched pursuant to a warrant.
Three children, ages 2, 4 and 8 were in the residence along with an
unloaded weapon, crack cocaine and drug paraphernalia. Then, in
June 2006, defendant participated in additional crack cocaine sales.
Id. at 5. The court’s letter went on to state:
I must consider certain factors under 18 U.S.C. § 3553. But
keep in mind that I am providing this information pursuant to Rule
32(h)[ 5], not as an all-inclusive list of the factors which I may
ultimately consider after the defendant has had the opportunity to
comment. . . .
According to the presentence report, defendant is 28 years old
and has been using illegal drugs on a regular basis for 13 years. He
has five children and one stepchild who he apparently does not
support, at least on a regular basis. His employment history is
somewhat irregular but his educational attainments are sufficient that
he could work regularly and support his dependents should he be
inclined to do so. In other words, there is no demonstrable economic
reason for defendant to be selling drugs and taking money from a
girlfriend, assuming that selling drugs can ever be justified by
5
Fed. R. Crim. P. 32(h) provides:
Notice of Possible Departure from Sentencing Guidelines. Before
the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or
in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The
notice must specify any ground on which the court is contemplating a
departure.
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economic need. On the contrary, based on the record, I assume
defendant sells drugs to support his own drug habit and because he is
too lazy to work.
All of the charges in the indictment are very serious.
Defendant’s conduct demonstrates complete lack of respect for the
law. It is clear that even when confronted by authorities with selling
drugs, he was not deterred from doing so. The public needs to be
protected from that type of conduct and, in particular, his children
need to be protected. The conduct of a parent who exposes young
children to the drug trade is beneath contempt. I don’t have to dwell
on the fact that children who are exposed to drugs are more likely to
become involved in the illegal drug trade and the use of illegal drugs.
Anyone who believes otherwise is either terminally naive or
completely ignorant of the drug culture.
...
I asked [the probation officer who prepared the PSR] to give
me some information regarding the types of sentences which would
have been available had defendant pled to other counts in the
indictment. . . .
Finally, while I have not seen the presentence report regarding
Shonnetta Gabriel, defendant’s codefendant, it is my understanding
that her sentencing range is 46-57 months. Gabriel is charged in
only four of the 16 counts of the indictment. Defendant is charged in
all 16. There would appear to be no sentencing disparity if defendant
receives a sentence greater than 60 months if, for no other reason,
because his criminal conduct is substantially more serious than that
of Gabriel.
Id. at 6. On December 12, the court sent another letter supplementing his
December 8 letter, stating as follows:
U.S.S.G. § 2K2.4, Application Note 7 (2006 Guidelines
Manual) states, in pertinent part: “The Commission has not
established a fine guideline range for the unusual case in which there
is no conviction for the underlying offense, although a fine is
authorized under 18 U.S.C. § 3571.” It is clear from reading the
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other application notes that an underlying offense would include a
drug trafficking crime. Thus, the Sentencing Commission would
view this case as “unusual” because the parties have agreed to allow
defendant to plead guilty to the 924(c) count alone, rather than in
addition to one or more underlying drug counts.
I believe this analysis of the commentary supports my view
that this is an “unusual” case in which a sentence greater than 60
months will be reasonable.
Letter dated 12/12/06, R. Vol. I, tab 44, Ex. B.
The court invited the parties to submit memoranda addressing the issues set
forth in the court’s two letters, and White did so. In his memorandum, White
pointed out that he “was not a distributor of large amounts of drugs, or considered
by law enforcement officers to be a high level drug dealer,” and that “the total
amount of crack cocaine involved in this case is merely 21.39 grams.” Response
to Court’s Notice to Depart at 7, R. Vol. I, tab 34. Furthermore, White argued he
“has no felony criminal history, or criminal record of dealing drugs in the past.”
Id. White also offered a DVD of an interview with his sister, “who describes in a
very intimate and personal way, the abuse suffered by she and Mr. White as
children [of a] life time drug addict, who abused and abandoned her children in
exchange for men and drugs.” Id. at 8-9. White then stated that “[t]he type of
offenses with which [he] is charged are not at all representative of his true
character” and he “is a gentle and respectful young man, but also a seat of inner
conflict.” Id. at 9 (footnote omitted). He also pointed out that “[a]lthough
numerous firearms were located in Mr. White’s house and in his automobile
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trunk, [which belonged to him . . .], White did not present those firearms or
threaten to use them in any drug transaction.” Id. at n.2. With respect to the
allegation that he endangered his children, he noted that “these children belonged
also to Shonetta Gabriel, their mother. If this regrettable factor should result in
an increase in Mr. White’s sentence, should it not likewise result in an increase of
Ms. Gabriel’s sentence?” Id. at 11.
Following a hearing at which both parties presented argument, the district
court issued its sentencing decision, in which the court “adhere[d] to [its] belief
that an upward departure from the advisory guideline sentence is warranted.”
Sentencing Dec. at 1, R. Vol. I, tab 44. After observing that the law regarding
sentence departures is “not totally settled” in our circuit, the district court stated
that it was obligated “to consult both the advisory guidelines and the statutory
factors set forth in 18 U.S.C. § 3553(a).” Id. at 3. The court held that its two
letters adequately discussed the advisory guidelines and explained “that an
upward departure is allowable under the advisory guidelines.” Id.The court then turned to its analysis of the 18 U.S.C. § 3553(a) factors. In
considering the “history and characteristics” of White, the court observed,
“[t]here is no question that the circumstances of defendant’s upbringing were far
worse than the ‘normal’ law-abiding, two parent, nurturing home which some
might contend to be a base-line for consideration of a defendant’s history and
characteristics.” Id. at 4. After articulating the critical question as “whether
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defendant’s unfortunate history militates against an upward departure,” the court
concluded, “when all the circumstances and statutory factors are considered,
defendant’s unfortunate childhood does not prevent an upward departure.” Id. at
4-5. The court then commented on White’s involvement of his children in his
drug transactions, stating, “[t]he court supposes that it is possible for some
persons to feel love and concern for the welfare of one’s children while, at the
same time, exposing young children to drug trafficking and the danger of
firearms, but the court cannot identify with such persons.” Id. at 5. It further
stated:
What the court does know with certainty from hands-on
experience of sentencing defendants (as opposed to reading about
sentencing) is that cases of this type fall in the category of a self-
fulfilling prophecy. In other words, the child of a parent who uses
and/or sells illegal drugs is very likely to follow in the parent’s
footsteps, which is exactly what defendant has done. When, as here,
a defendant takes his small children with him when engaging in drug
transactions, that defendant has to be separated from his children.
This falls within the category of protecting the public from further
crimes of the defendant.
Id. The court then explained its sentence:
In an effort to formulate a sentence which will be acceptable under
the advisory guidelines and the § 3553(a) factors, the court requested the
probation officer to prepare a sentence calculation which takes into
consideration the offense of conviction (count 12, possession of a firearm
in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)
which carries a minimum and advisory guideline sentence of 60 months)
plus the “underlying offense” charged in count 4, possession with intent to
distribute cocaine base within 1,000 feet of a school in violation of 21
U.S.C. §§ 842(a)(1) and 860. . . .
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Using defendant’s criminal history category II and a total
offense level of 26, the advisory guideline range for count 4 becomes
70-87 months. The court will impose a 60 month sentence on count
12 enhanced by an upward departure of 87 months for a controlling
sentence of 147 months. The court finds that such a sentence is
consistent with the advisory guidelines and is sufficient, but not
greater than necessary, to comply with the sentencing purposes set
forth in § 3553(a).
Id. at 5-6.
White appeals, arguing the upward departure or variance to a 147-month
sentence was procedurally and substantively unreasonable.
DISCUSSION
Since United States v. Booker, 543 U.S. 220 (2005), “we review sentencing
decisions for reasonableness, which has both procedural and substantive
components.” United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007).
Procedural reasonableness involves the manner in which a court calculates a
sentence. “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. Substantive reasonableness relates to the overall length of the
sentence. “A substantively reasonable sentence ultimately reflects the gravity of
the crime and the § 3553(a) factors as applied to the case.” Id.. Most recently,
the Supreme Court in Gall v. United States, 128 S. Ct. 586, 591 (2007), made it
clear that “courts of appeals must review all sentences–whether inside, just
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outside, or significantly outside the Guidelines range–under a deferential abuse-
of-discretion standard.” Id. at 591.
White argues the district court: did not “provide a clear statement of
reasons sufficient to justify the extreme upward departure of 87 months in
addition to an advisory guideline sentence of 60 months;” “consider[ed]
inappropriate factors such as disagreement with the government’s plea negotiation
decisions and the policy decisions of the Sentencing Commission;” failed to
explain why the court’s upward departure resulted in a sentence sufficient but not
greater than necessary to comply with 18 U.S.C. § 3553(a); failed to explain why
the factors upon which the court relied, either individually or collectively,
constituted “extraordinary circumstances justifying the extreme upward
departure;” and “imposed [a] substantively unreasonable [sentence] after
consideration of the § 3553(a) factors.” Appellant’s Op. Br. at 1-2.
I. Procedural reasonableness:
We begin by considering our standard of review for White’s claim that the
district court imposed his sentence in a procedurally unreasonable way. The
government, citing United States v. Romero, 491 F.3d 1173 (10th Cir. 2007),
argues that, since White failed to object following imposition of sentence to the
government’s calculation of his sentence or explanation for the sentence imposed,
we must review his claim of procedural unreasonableness for plain error. White
responds that:
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as Romero makes clear, the law prior to that decision was
inconsistent and confusing as to whether an objection had to be made
after a procedurally erroneous sentence in order to preserve that
error. Since Romero was decided well after the sentencing in this
case, it would be manifestly unjust to apply that rule in this case.
Appellant’s Reply Br. at 1. White concedes, however, that at least two of our
decisions prior to Romero had “expressly held that a contemporaneous objection
to a procedural error in sentencing was required to avoid a plain error standard.”
Id.We agree with the government that White was sufficiently on notice that a
contemporaneous objection is required to avoid a plain error standard, and
Romero simply reiterated and further clarified that. As in Romero, it is clear
from the record in this case that, although White presented arguments against the
court’s proposed upward departure from the advisory Guidelines range, he “did
not raise the procedural objection he now asserts after the district court imposed
sentence.” Romero, 491 F.3d at 1176. We took the opportunity in Romero to
reassert “[o]ur conviction that the requirement of contemporaneous objection to
procedural errors is consistent with our precedent and represents a reasonable
burden on defendants. . . . “ Id. at 1177. 6 Thus, a plain error standard of review
applies to White’s allegations of procedural unreasonableness.
6
Our decision in Romero gave multiple reasons why its holding was
consistent with our precedent, despite any confusion engendered by other cases.
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“We find plain error only when there is (1) error, (2) that is plain,
(3) which affects substantial rights, and (4) which seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1178. “The plain
error standard presents a heavy burden for an appellant, one which is not often
satisfied.” Id. See United States v. Toro-Pelaez, 107 F.3d 819, 827 (10th Cir.
1997) (“[T]he plain-error exception to the contemporaneous-objection rule is to
be used sparingly, solely in those circumstances in which a miscarriage of justice
would otherwise result.”) (further quotation omitted).
White has failed to establish that the district committed any error which
affected his substantial rights. He argues that the district court failed to “clearly
set forth the factors upon which it relied to justify either its decision to grant an
upward departure or the extreme degree of the departure imposed.” Appellant’s
Br. at 12. He also argues the court considered inappropriate factors and failed to
explain why departing upward on the basis of a dismissed count and running it
concurrent to the count of conviction resulted in a reasonable sentence. We
disagree with White’s complaints about the district court’s methodology.
First, as the district court noted, USSG § 5K2.21 permits the court to
“depart upward to reflect the actual seriousness of the offense based on conduct
(1) underlying a charge dismissed as part of plea agreement in the case or
underlying a potential charge not pursued in the case as part of a plea agreement
or for any other reasons.” Thus, the district court asked the probation office to
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calculate a sentence for count four (possession with the intent to distribute crack
cocaine within 1,000 feet of a school), which was the count underlying count
twelve (the count of conviction). 7 The connection between counts four and
twelve is, therefore, obvious. Furthermore, the five-year sentence imposed under
§ 924(c) is required to be consecutive to any sentence for the underlying offense.
Second, rather than failing to explain his reasons for departing upward from
five years, the court’s letters and sentencing decision amply explained its reasons
for doing so. 8 White had distributed cocaine and possessed multiple firearms
while his young children were present; he continued to sell cocaine even after
being confronted by law enforcement authorities and having his residence
7
As indicated, White pled guilty to count twelve–possession of a firearm in
furtherance of a drug trafficking crime. He admitted during his change of plea
hearing that “[a]t the time he possessed these firearms the defendant was engaged
in the distribution of crack cocaine,” R. Vol. I, doc. 27 at ¶ 2. He admitted to
selling crack cocaine from his residence, which was within 1,000 yards of a
school, which is also where the firearms were found.
8
White spends a considerable amount of time arguing that the court’s
upward departure (or variance), from sixty months to 147 months, was
extraordinary, and therefore required extraordinary circumstances. This argument
was based upon our prior jurisprudence. See, e.g., United States v. Cage, 451
F.3d 585 (10th Cir. 2006); United States v. Bishop, 469 F.3d 896 (10th Cir.
2006), cert. denied, 127 S. Ct. 2973 (2007). However, these cases were overruled
by Gall v. United States, 128 S. Ct. 586 (2007), which specifically rejected “an
appellate rule that requires ‘extraordinary’ circumstances to justify a sentence
outside the Guidelines range” or an appellate court’s “use of a rigid mathematical
formula that uses the percentage of a departure as the standard for determining the
strength of the justifications required for a specific sentence.” Id. at 595. The
Gall Court did, however, state that “appellate courts may . . . take the degree of
variance into account and consider the extent of a deviation from the Guidelines.”
Id. at 595.
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searched; he had been charged with sixteen counts, all of which were serious, but
ended up only pleading guilty to one; his conduct demonstrated a complete lack
of respect for the law; the public and his young children needed to be protected
from his conduct; and he was harming his children by exposing them to the drug
trade. Even if some of the reasons the district court gave were of questionable
propriety, or were extraneous comments, those reasons were overwhelmed by the
permissible reasons given and were not structurally fatal to the whole sentencing
proceeding. It is clear that the judge not only stated, but relied principally upon,
appropriate reasons, under any standard of review. Thus, even if there was error,
White cannot demonstrate that any procedural error affected his substantial rights.
II. Substantive reasonableness:
Gall has made clear that we review “all sentences–whether inside, just
outside, or significantly outside the Guidelines range–under a deferential abuse-
of-discretion standard.” Gall, 128 S. Ct. at 591. A substantively reasonable
sentence reflects the gravity of the crime and the § 3553(a) factors as applied to
the case. See United States v. Hernandez, 509 F.3d 1290, 1297-98 (10th Cir.
2007). The sentence in this case satisfies that standard. The court found an
upward departure was appropriate under USSG §5K2.21 “to reflect the actual
seriousness of the offense based on conduct. . .underlying a charge dismissed as
part of a plea agreement. . .” It further stated its awareness that it must consider
the § 3553(a) factors. The court discussed, and the record reflects, the nature and
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characteristics of White, the seriousness of his criminal conduct, the need to
protect society from him, and the need for deterrence. We cannot say that, under a
deferential abuse-of-discretion standard, the court abused its discretion in
imposing the sentence it did on White.
CONCLUSION
For the foregoing reasons, the sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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