United States v. Glidewell

FILED
United States Court of Appeals
Tenth Circuit
April 11, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-8072
v. (D. of Wyo.)
KENNETH GLIDEWELL, JR., (D.C. No. 2:10-CR-00033-WFD-3)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Kenneth Glidewell, Jr. pleaded guilty to illegally trafficking oxycodone in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Glidewell appeals his
sentence. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
I. Background
In 2009, Glidewell joined an existing conspiracy to distribute oxycodone.
As part of the conspiracy, Glidewell’s mother, Anastasia Grillo, acquired
oxycodone under prescriptions issued to her for the treatment of pain. Grillo then
unlawfully sold the oxycodone to others, who distributed the drug in Wyoming.
During the conspiracy, some customers accrued drug debts to Grillo. For his part
in the conspiracy, Glidewell attempted to collect these debts, and he sought to
prevent customers from revealing the conspiracy to law enforcement.
In March 2010, the United States charged Glidewell with one count of
conspiring to traffic oxycodone. Two months later, Glidewell pleaded guilty
pursuant to an agreement with the government. The plea agreement stipulated
facts supporting Glidewell’s proposed guilty plea and advised Glidewell of the
effects of the United States Sentencing Guidelines (USSG). The agreement
further provided that the government would dismiss a previously filed
information, urge the district to court grant Glidewell a four-offense-level
variance under 18 U.S.C. § 3553(a) to account for his minimal role in the
conspiracy, and recommend a three-level downward adjustment under USSG
§ 3E1.1 to reflect his acceptance of responsibility.
At his change-of-plea hearing, Glidewell established he was competent to
proceed, he fully and adequately reviewed the indictment, and he knowingly and
voluntarily signed the plea agreement after thorough consultation with his lawyer.
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The court advised Glidewell about the sentencing guidelines and the fact that
although the court was bound to consider them, it was not legally required to
apply them in any given case. During the colloquy, Glidewell provided a factual
basis for his plea by admitting he was involved in his mother’s oxycodone
conspiracy.
Under the USSG, Glidewell was a career offender subject to a base offense
level of 32, an adjusted offense level of 29, and a criminal history category of VI,
by virtue of the career offender guidelines. Accordingly, the presentence
investigation report’s recommended sentencing range was 151–188 months. At
sentencing, the court agreed that Glidewell was a minor participant in the drug
conspiracy and, in line with the government’s recommendation, granted him a
four-level downward variance based on the § 3553(a) factors. After the variance,
Glidewell’s total offense level was 25, and the resulting sentencing range was
110–137 months. After considering the § 3553(a) factors, the court sentenced
Glidewell to 110 months’ imprisonment, 3 years’ supervised release, and a $100
special assessment.
II. Discussion
Glidewell raises two challenges to his sentencing. First, he contends his
sentence is procedurally unreasonable because the district court failed to properly
consider the § 3553(a) factors. Second, he claims his 110-month sentence is
substantively unreasonable.
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A. Procedural Reasonableness
For a sentence to be procedurally reasonable, the sentencing court must
have appropriately considered the § 3553(a) factors. Gall v. United States, 552
U.S. 38, 49–50 (2007). Glidewell contends the district court erred by not
properly considering “the nature and circumstances of the offense,” under
§ 3553(a)(1), and the need to avoid unwarranted sentencing disparities among
similarly situated defendants, under § 3553(a)(6).
Because Glidewell did not object to the district court’s § 3553(a) analysis,
we review only for plain error. 1 See Fed. R. Crim. P. 52(b); United States v. Poe,
556 F.3d 1113, 1128 (10th Cir. 2009). Under plain error review, we may not
reverse unless we find “(1) error, (2) that is plain, and (3) that affects substantial
rights. If all three conditions are met, [we] may then exercise [] discretion to
notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” United States v.
Balderama-Iribe, 490 F.3d 1199, 1203–04 (10th Cir. 2007) (quotation omitted).
Glidewell bears the burden of demonstrating plain error. Id.In this case, we find no error at all. First, the district court clearly
considered the “nature and circumstances of the offense,” as required by
1
At sentencing, the judge specifically asked Glidewell’s counsel: “[H]ave
I addressed all the matters that needed to be addressed under 3553(a)?” R., Vol.
III at 158. Glidewell’s counsel responded: “I believe so, Your Honor. Thank
you.” Id.-4-
§ 3553(a)(1). At the sentencing hearing, both Glidewell and the government
spent considerable time discussing Glidewell’s minimal role in the conspiracy.
And as explained, the district court agreed with the parties’ characterization of
Glidewell’s role and granted a four-level downward variance. This suggests the
court directly and specifically considered “the nature and circumstances of the
offense.” § 3553(a)(1).
Second, the district court did not err in failing to compare Glidewell’s
sentence to those of his codefendants. Section 3553(a)(6) “does not require the
sentencing court to compare the sentences of codefendants; rather, it looks to
uniformity on a national scale.” United States v. Ivory, 532 F.3d 1095, 1107
(10th Cir. 2008). Glidewell has not made any suggestion that his sentence is
disparate vis-a-vis similarly situated defendants nationwide. And although the
district court did not specifically reference § 3553(a)(6), it was not required to do
so. “We do not require a ritualistic incantation to establish consideration of a
legal issue, 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.” United States v. Kelley, 359 F.3d 1302,
1305 (10th Cir. 2004) (quotation omitted). In this vein, it is generally sufficient
for a court to address the § 3553(a) factors “en masse” in connection with
explaining its justification for the sentence imposed. Id.; United States v. Burdex,
100 F.3d 882, 886 (10th Cir. 1996).
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Accordingly, the record reflects the district court’s careful consideration of
the § 3553(a) factors.
B. Substantive Reasonableness
We review the substantive reasonableness of a defendant’s sentence for
abuse of discretion. See United States v. Mancera-Perez, 505 F.3d 1054, 1058
(10th Cir. 2007). Under this deferential standard, we may overturn Glidewell’s
sentence only if the district court’s decision was “arbitrary, capricious, whimsical,
or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307
(10th Cir. 2009) (quotation omitted). In this regard, we assess whether
Glidewell’s sentence is reasonable “given all the circumstances of the case in
light of the factors set forth in 18 U.S.C. § 3553(a).” Id. (quotation omitted).
Glidewell contends his 110-month sentence is substantively unreasonable
because (1) given his peripheral role in the drug conspiracy, he should have
received a less onerous sentence; (2) the district court overweighted his
significant criminal history; and (3) his sentence is disproportionately severe in
comparison to sentences received by other, more culpable participants in the drug
conspiracy.
Glidewell’s arguments are unavailing. A sentence within a properly
calculated guidelines range is presumed to be reasonable. United States v.
Verdin-Garcia, 516 F.3d 884, 898 (10th Cir. 2008). Glidewell’s sentence was
outside the guideline range—but this worked to his advantage. Indeed,
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Glidewell’s 110-month sentence was significantly below his 151–188 month
guideline sentencing range. The court credited Glidewell’s marginal participation
in the criminal scheme to arrive at this lower sentence, despite Glidewell’s
criminal history category of VI and the fact that the career offender guidelines do
not provide courts a mechanism to account for a defendant’s minimal
participation in a drug offense. USSG §§ 4B1.1(a) and (b). This was not an
abuse of discretion.
We also find no evidence that the district court abused its discretion by
taking into consideration Glidewell’s extensive criminal history, given that
Congress made criminal history an explicit component of the USSG. Finally, the
court did not abuse its discretion by failing to adjust Glidewell’s sentence so as to
eliminate sentencing disparities between him and his codefendants. As explained
above, although a sentencing court is permitted to account for sentencing
disparities among codefendants, it is not required to. Ivory, 532 F.3d at 1107.
III. Conclusion
For the reasons stated above, we AFFIRM Glidewell’s sentence.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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