United States v. Keeble

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 15, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-5190
v. (District of Oklahoma)
(D.C. No. 03-CR-138-001-TCK)
DA VID R AY KEEBLE,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
I. IN TR OD UC TIO N
Defendant David R. Keeble pleaded guilty to one count of possession of a
firearm and ammunition after former conviction of a felony. The United States
District Court for the N orthern District of Oklahoma sentenced Keeble to a term
of 115 months’ imprisonment, the high end of the applicable guidelines range.
Keeble appeals his sentence, alleging it is unreasonable because it is longer than
*
This order and judgment is not binding precedent, except under the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.
necessary to effectuate the purposes set out in 18 U .S.C. § 3553(a). W e exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the sentence imposed by the
district court.
II. BAC KGR OU N D
On November 2, 2002, police officers in Collinsville, Oklahoma observed a
vehicle with a defective tag light cross the center line of the roadway. The
officers activated their emergency lights and stopped the vehicle. Appellant
Keeble was a passenger in the vehicle. W hen Keeble opened the passenger door,
the officers observed a firearm on the floor between the passenger seat and the
door. The officers discovered additional firearms w hen they searched the vehicle;
it was later determined that three of the weapons belonged to Keeble. The
officers conducted a records check and determined Keeble had two outstanding
warrants. Further investigation revealed Keeble had been convicted of first-
degree rape and oral sodomy in Oklahoma in 1980, first-degree manslaughter in
Oklahoma in 1988, and possession of a firearm after former conviction of a
felony in Oklahoma in 1999.
Keeble was charged with and pleaded guilty to possession of firearms and
amm unition after former conviction of a felony, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). A probation officer prepared a Presentence Investigation
Report (“PSR”) in the case. Applying relevant sections of the United States
Sentencing Guidelines (“U SSG” or “G uidelines”), the PSR determined Keeble’s
-2-
total offense level was tw enty-three. It assigned seventeen criminal history points
to Keeble, which placed him in a criminal history category of VI. Based on an
offense level of twenty-three and a criminal history category of VI, the applicable
guidelines range was 92 to 115 months’ imprisonment.
Keeble did not dispute any of the factual statements in the PSR and did not
argue the probation officer erred in calculating the applicable guidelines range.
At sentencing, however, he asked the district court to run his federal sentence
concurrent with the sentence he anticipated receiving in a pending Oklahoma state
case. The Government requested the court to run the sentences consecutively and
to sentence Keeble to the maximum possible term of incarceration. The district
court imposed a 115-month sentence, the high end of the applicable guidelines
range, and ordered the sentence to run consecutive to the sentence imposed in the
pending state case. The court recommended Keeble be placed in a facility
offering a drug-treatment program and a sex-offender program.
III. D ISC USSIO N
In this appeal, Keeble does not challenge the calculation of the guidelines
range or the imposition of a consecutive sentence, but argues the 115-month
sentence imposed by the district court is unreasonable because it is greater than
necessary to accomplish the purposes set forth in 18 U.S.C. § 3553(a). This court
reviews district courts’ sentencing decisions for reasonableness. United States v.
-3-
Booker, 543 U.S. 220, 260-61 (2005). Under this standard, a sentence will not be
reversed if the record demonstrates the sentence was “reasoned and reasonable.”
United States v. Contreras-M artinez, 409 F.3d 1236, 1241 (10th Cir. 2005)
(quotation omitted). Because Keeble’s sentence fell within the applicable
guidelines range, it is presumptively reasonable. United States v. Kristl, 437 F.3d
1050, 1055 (10th Cir. 2006). It is Keeble’s burden to “rebut this presumption by
demonstrating that the sentence is unreasonable in light of the other sentencing
factors laid out in [18 U.S.C.] § 3553(a).” Id.
Under § 3553(a)(1), the district court is required to consider the nature and
circumstances of the offense of conviction and the history and characteristics of
the defendant. Keeble argues the nature of the offense does not justify a sentence
at the high end of the guidelines range. He asserts he did not brandish any of the
firearms found in the vehicle or use them during the commission of another
crime. He also argues his criminal history cannot support the maximum
guidelines sentence because it was also used to elevate his offense level and
calculate his criminal history. According to Keeble, the 115-month sentence was
greater than necessary to afford adequate deterrence to criminal conduct, protect
the public from future crimes, and provide him with training, medical care, or
correctional treatment. See 18 U.S.C. § 3553(a)(2). He maintains all of these
-4-
objectives could be accomplished by a sentence at the low end of the applicable
guidelines range.
Having fully considered Keeble’s arguments, we agree with the
Government that he has failed to rebut the presumption the sentence imposed by
the district court was reasonable. The record demonstrates Keeble is extremely
violent and has an extensive criminal history spanning a twenty-six-year period.
Keeble has been convicted of rape, manslaughter, and sexually abusing a minor
child. He has twice been convicted in Oklahoma state court of firearms violations
and the instant conviction also involved a firearms offense. Further, Keeble
committed the instant offense less than two years after release from state
imprisonment. Keeble’s seventeen criminal history points are four points higher
than the thirteen points needed to elevate him to the highest criminal history
category set out in the Guidelines. W e are convinced it was reasonable for the
district court to conclude the 115-month sentence w as not greater than necessary
to accomplish the purposes set out in 18 U.S.C. § 3553(a)(2), including promoting
respect for the law, affording adequate deterrence to criminal conduct, and
protecting the public from further criminal conduct.
-5-
III. C ON CLU SIO N
For the reasons stated above, the sentenced imposed by the United States
District Court for the N orthern D istrict of O klahoma is affirmed.
-6-