FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF OKLAHOMA (D.C. NO. 6:13-CR-00017-RAW-1 and 2)
J. Anderson, Attorney (John M. Gore, Acting Assistant
Attorney General, and Bonnie I. Robin-Vergeer, Attorney, with
her on the briefs), United States Department of Justice,
Civil Rights Division, Appellate Section, Washington, D.C.,
L. Derryberry, Assistant Federal Public Defender (Julia L.
O'Connell, Federal Public Defender, with him on the
brief), Office of the Federal Public Defender, Tulsa,
Oklahoma, for Appellee Barnes.
L. Hopkins, Tahlequah, Oklahoma, for Appellee Brown.
TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
TYMKOVICH, Chief Judge.
the second appeal arising from crimes committed by two
corrections officers, Raymond Barnes and Christopher Brown,
while employed at the Muskogee County Jail. The government
argues the sentences the district court imposed after we
remanded for resentencing are substantively unreasonable.
Because we find the district court did not abuse its
discretion in granting a downward variance from the United
States Sentencing Guidelines, we affirm.
and Brown both held administrative roles at the Muskogee
County Jail. Barnes served as the Jail Superintendent and
Brown worked alongside him as the Assistant Jail
Superintendent. Our previous opinion extensively recounted
the abuse both Barnes and Brown perpetrated on the jail's
inmates. See United States v. Brown, 654 Fed.Appx.
896, 900-902 (10th Cir. 2016) (unpublished). In short, both
defendants physically abused prisoners in a variety of ways,
engaged in excessive force against inmates, and intimidated
other jail employees to conceal their illicit activities.
charged Barnes and Brown with three counts of assaulting or
conspiring to assault prisoners at the jail. In 2014, a jury
convicted both of various charges. The jury convicted Barnes
of one count of conspiracy to violate constitutional rights
and two counts of deprivation of rights under color of law.
See 18 U.S.C. §§ 241, 242. The jury found
Brown, on the other hand, guilty of one count of conspiracy
to violate constitutional rights, one count of deprivation of
rights under color of law, and one count of making a false
statement to a federal agent. See 18 U.S.C. §
1001. The district court sentenced Barnes to twelve
months' imprisonment followed by twenty-four months of
supervised release. Brown received a sentence of six
months' imprisonment followed by thirty-six months of
first appeal, Barnes and Brown challenged their convictions.
The government cross-appealed, arguing both sentences were
procedurally and substantively unreasonable. We affirmed the
convictions, but vacated the sentences as procedurally
unreasonable because the district court had not adequately
explained the basis for the sentences imposed.
Brown, 654 Fed.Appx. at 900. Since we resolved the
case on procedural unreasonableness, we declined to reach the
government's argument that the sentences were
remand, the district court held a hearing, took additional
testimony from witnesses, and heard arguments about the
appropriateness of a variance. The court concluded it would
not apply the advisory guidelines range of 70 to 87 months
and granted a variance to each defendant. Accordingly, the
court resentenced Barnes to twenty-four months of
imprisonment followed by twenty-four months of supervised
release. The court also gave Brown a new sentence of twelve
months' imprisonment followed by thirty-six months of
supervised release. All told, the district court doubled each
of their terms of imprisonment.
government again appeals, arguing the new sentences are
substantively unreasonable. We affirm. The district court did
not abuse its discretion in applying the relevant sentencing
factors as reflected in its explanation of the sentences
based on defendant-specific facts and circumstances.
government contends the district court abused its sentencing
discretion by imposing too lenient a sentence on both
defendants. The government urges us to find the sentences
review a district court's sentencing determination for
substantive unreasonableness by considering whether the
sentence "is unreasonable given the totality of the
circumstances in light of the 18 U.S.C. § 3553(a)
factors." United States v. Caiba-Antele, 705
F.3d 1162, 1165 (10th Cir. 2012). We review a sentence's
length for abuse of discretion. United States v.
Walker, 844 F.3d 1253, 1255 (10th Cir. 2017). A district
court abuses its sentencing discretion only if the sentence
"'exceeded the bounds of permissible
choice.'" United States v. McComb, 519 F.3d
1049, 1053 (10th Cir. 2007) (quoting United States v.
Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). We
"will reverse only if the sentence imposed was
'arbitrary, capricious, whimsical, or manifestly
unreasonable.'" United States v. DeRusse,
859 F.3d 1232, 1236 (10th Cir. 2017) (quoting United
States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012)).
determining a sentence, a court must consider the seven
statutory factors set forth in § 3553(a). The factors
1. The nature and circumstances of the offense and the
history and characteristics of the defendant;
2. the need for a sentence to reflect the seriousness of the
crime, deter future criminal conduct, prevent the defendant
from committing more crimes, and provide rehabilitation;
3. the sentences that are legally available;
4. the Sentencing Guidelines;
5. the Sentencing Commission's policy statements;
6. the need to avoid unwarranted sentence disparities; and
7. the need for restitution.
See 18 U.S.C. § 3553(a) (1-7).
substantial deference to the district court's weighing of
these factors. "The sentencing judge is in a superior
position to find facts and judge their import under §
3553(a) in the individual case." Gall v. United
States, 552 U.S. 38, 51 (2007). "The judge sees and
hears the evidence, makes credibility determinations, has
full knowledge of the facts and gains insights not conveyed
by the record." Id. "It has been uniform
and constant in the federal judicial tradition for the
sentencing judge to consider every convicted person as an
individual and every case as a unique study in the human
failings that sometimes mitigate, sometimes magnify, the
crime and the punishment to ensue." Id. at 52.
In short, "the uniqueness of the individual case . . .
does not change the deferential abuse-of-discretion standard
of review that applies to all sentencing decisions."
when we review a downward variance from the recommended
guidelines range, as we do here, even more solicitude to the
sentencing court is appropriate. A "downward variance is
based simply on the district court's discretionary
authority to consider 'the nature and circumstances
of the offense'" and select "'a sentence
sufficient, but not greater than necessary, ' to comply
with all of the purposes of sentencing." See
DeRusse, 859 F.3d at 1237 (quoting 18 U.S.C. §
3553(a)) (emphasis added).
addition, our review must acknowledge that sentencing courts
can and should "engage in a holistic inquiry of the
§ 3553(a) factors." See United States v.
Lente, 759 F.3d 1149, 1174 (10th Cir. 2014) (quoting
United States v. Lopez-Macias, 661 F.3d 485, 492
(2011)). A district court properly engages in this inquiry
when it bases its decision on specific, articulable facts
supporting the variance and does not employ an impermissible
methodology or rely on facts that would make the decision out
of bounds. DeRusse, 859 F.3d at 1236.
these reasons, we uphold even substantial variances when the
district court properly weighs the § 3553(a) factors and
offers valid reasons for the chosen sentence.
for example, DeRusse, where, we upheld a substantial
variance from a 108-135 months guidelines range down to 70
days already served. In so holding, we rejected the
government's suggestion that a "variance based on
the district court's discretionary authority should be
constrained by . . . the specific requirements listed in
[the] guideline . . . ." Id. at 1237. "A
variance, " we explained, "can be imposed without
compliance with the rigorous requirements for
departures." Id. (quoting Gantt, 679
F.3d at 1247).
than looking to compliance with the Guidelines, we looked
instead to whether the district court properly weighed all
the § 3553(a) factors. We concluded it had, ultimately
agreeing with the district court that the crime represented
"aberrational" behavior that was partially
attributable to mental health issues for which the defendant
was receiving treatment. Id. at 1240. Although we
would likely not have "reached the same sentencing
decision in the first instance, " we concluded the court
did not abuse its substantial discretion in choosing the
sentence. Id. at 1241.
short, then, the adequacy of the court's consideration
and explanation of the § 3553(a) factors is the keystone
of our analysis. We look to the record to determine whether
the district court satisfactorily engaged and examined the
factors in a holistic fashion. But the court need not rely on
every single factor-no algorithm exists that instructs the
district judge how to combine the factors or what weight to
put on each one.
distinction between procedural and substantive reasonableness
is a significant but not necessarily sharp one, especially as
it concerns a sentencing court's explanation for the
sentence. That explanation serves both procedural and
just as a court's consideration of the § 3553(a)
factors is a procedural requirement, so is its explanation of
how those factors apply. In fact, the explanation is the
procedural step that shows the factors have been considered.
In Gall, the Supreme Court said "failing to
adequately explain the chosen sentence" can be "a
significant procedural error." 552 U.S. at 51. In this
appeal, the government does not challenge the sentences'
procedural reasonableness. Aple. Reply Br. at 3 ("To be
clear, the United States is not arguing that the district
court failed to adequately explain its reasons-i.e.,
that it made procedural errors . . . .").
the content of the district court's explanation is
relevant to whether the length of the sentence is
substantively reasonable. To determine substantive
reasonableness, Gall instructs that we "must
give due deference to the district court's decision that
the § 3553(a) factors, on a whole, justify the extent of
the variance." 552 U.S. at 51. Part of that deference
extends to the court's analysis of the § 3553(a)
factors. See United States v. Smart, 518 F.3d 800,
808 (10th Cir. 2008) (holding appellate courts must grant
deference "not only to a district court's factual
findings but also to its determinations of the weight to be
afforded to such findings."). A sentence is more likely
to be within the bounds of reasonable choice when the court
has provided a cogent and reasonable explanation for it.
dual purpose of the court's sentencing explanation is one
reason the line between procedural and substantive
reasonableness is blurred. See United States v.
Reyes-Santiago, 804 F.3d 453, 468 n.19 (1st Cir. 2015)
("The line between procedural and substantive sentencing
issues is often blurred. . . . [and] 'the lack of an
adequate explanation can be characterized as either a
procedural error or a challenge to the substantive
reasonableness of the sentence.'") (quoting
United States v. Crespo-Ríos, 787 F.3d 34, 37
n.3 (1st Cir. 2015) (internal quotation marks and brackets
omitted)); see also United States v. Liou, 491 F.3d
334, 337 (6th Cir. 2007) ("[T]he border between factors
properly considered 'substantive' and those properly
considered 'procedural' is blurry if not porous . . .
we consider the explanation given for the challenged
sentences to assist us in determining whether the district
court abused its discretion in weighing the § 3553(a)
factors-and thus whether the sentences are
substantively reasonable. See United States v.
Rentz, 696 Fed.Appx. 348, 352 (10th Cir. 2017)
(unpublished) ("[B]oth the record and the district
court's stated reasoning provide us an adequate basis to
assess the substantive reasonableness of the sentence
imposed."). The dissent argues that in considering the
district court's explanation, we rely "on a
rationale that instead fits the inquiry for
procedural reasonableness." Dissent at 7. But
while courts should avoid unduly blurring the line between
substantive and procedural reasonableness, there is
nevertheless some unavoidable overlap. See United States
v. Jeter, 721 F.3d 746, 756 (6th Cir. 2013)
("[C]laims of substantive and procedural reasonableness
overlap in that they both concern whether the district court
properly considered certain § 3553(a) factors.").
these considerations in mind, we turn to the district
court's sentencing analysis in this case.
district court properly addressed each of the § 3553(a)
factors in sentencing Barnes.
the court based its sentence on the trial record itself,
witness testimony at the resentencing hearing, and statements
and other submissions from members of Barnes's family,
co-workers, and friends. The court then walked through the
sentencing factors contained in § 3553(a), observing
that despite the stressful environment where Barnes worked,
"there [was] no justification for the actions which
resulted in [his] conviction." App. 609. Even so, the
district court considered Barnes to be a poor candidate for a
guidelines sentence. He was age 46 at sentencing, and married
with three children. In addition, he was raising four nieces
and nephews he took custody of after his sister died (the
father, who is in the country illegally, was unable to care
for them). At the time of resentencing, his natural children
were aged 14, 20, and 21, and the other children were 11, 15,
16, and 17. The record reflects that his sister's
children were performing better in school and socially since
Barnes and his wife took custody.
was also fighting tongue cancer and had other health problems
which required "14 medications daily." Id.
at 610-611. Prior to sentencing, Barnes had led "a
stable lifestyle and appear[ed] active in his
community." Id. The court concluded
Barnes's risk of recidivism would be "low to
nonexistent and he posed no apparent threat to the
community." Id. at 611. Barnes had not been
convicted of previous crimes, and the district court
considered its two-year prison sentence "significant
time"-especially coupled with supervisory release.
the seriousness of the crime and deterrence, the court
adequately reviewed the significant impact the sentence would
have on Barnes's career and family as well as on
similarly situated officers. Overall, the court determined
"the sentence imposed will provide specific and general
deterrence to any future anti-social behavior of this
defendant and others, especially those in law
enforcement." Id. at 611-612. The court reached
this conclusion after a thorough discussion of the
defendant's specific situation-he would no longer be able
to work in law enforcement, and, we note, would face all the
ancillary consequences attending a felony conviction. The
court further reasoned the sentence would properly deter
similarly-situated "Law Enforcement Officers or
Corrections Officers who learn of the facts surrounding this
case and may be tempted to engage in similar conduct."
Id. at 612.
the district court thoroughly supported its variance with an
analysis of the § 3553(a) factors. The court had
"taken notice of the advisory guideline range" and
could not "find that a sentence within that advisory
range is necessary to comport with the factors identified in
United States Code Section 3553(a) and to achieve the overall
goal of sentencing." Id. After considering the
guidelines factors as a whole, the court decided to vary
downward from the guidelines range to comport with the
broader goals of sentencing. In view of its careful
discussion, we find that the court did not abuse its
discretion in considering and justifying a variance based on
the § 3553(a) factors.
district court also properly addressed each of the §
3553(a) factors for Brown.
the court considered the trial testimony concerning
Brown's culpability and took additional testimony at the
sentencing hearing. The court then noted that Brown was not
the ringleader of the assaults. In fact, "the majority
of witnesses [at trial] testified that they did not observe
Brown assault any inmates, nor did they hear him give orders
to any other staff instructing them to assault or mistreat
the inmates." Id. at 652. Reviewing Brown's
personal characteristics, the court observed that Brown has
no criminal record, "maintains a stable lifestyle with
no documented substance abuse or other anti-social behavior,
" has "five minor children, " and exhibits a
"low to nonexistent" risk of recidivism.
Id. The court thus explicitly detailed why
Brown's personal attributes and dependent-heavy family
structure might mitigate the need for a standard guidelines
the seriousness of the crime and the need for deterrence, the
court noted that it was imposing "a significant portion
of imprisonment followed by a period of Supervised
Release"; Brown would no longer be able to work in law
enforcement; and his family had already been and
"[would] continue to be significantly impacted."
Id. at 652-653. The court found "[n]othing in
the defendant's background . . . suggest[ing] that a
sentence within the advisory guideline range is needed to
deter him from any further law violations or
misconduct." Id. at 653. The court was also
confident the selected sentence would deter Brown from future
crime and other officers from "similar misconduct."
discussing the remaining § 3553(a) factors and "the
sentencing options available for this defendant, " the
court could not "find that a sentence within that
advisory range is necessary to comport with the factors
identified in [the guidelines] and to achieve the overall
goal of sentencing." Id. at 653-654. The court
thought the combination of prison time and supervised
release, along with the mitigating circumstances in
Brown's personal history, warranted a sentence of 12
months' incarceration and three years of supervised
its analysis of Barnes's sentence, then, the court
holistically considered the § 3553(a) factors and
supported its analysis with facts specific to Brown's
situation. The court did not rely on impermissible factors or
rely exclusively on one factor. We thus find the court did
not abuse its discretion in justifying its variance in
Brown's sentence as well.
The Government's Arguments
government points to several cases where we have found low
sentences to be substantively unreasonable: United States
v. Friedman, 554 F.3d 1301 (10th Cir. 2009), United
States v. Walker, 844 F.3d 1253 (10th Cir. 2017), and
United States v. Morgan, 635 Fed.Appx. 423
(10th Cir. 2015) (unpublished). The government argues these
cases control the outcome of this case. We are not persuaded
these cases compel reversal of the sentences here.
Friedman, the defendant pleaded guilty to bank
robbery, and his guidelines range was 151 to 188 months. 554
F.3d at 1302, 1308. The district court varied downward to a
sentence of 57 months. We concluded the sentence was
substantively unreasonable because "(1) the defendant
had an extensive history of recidivism and lacked remorse and
(2) the 57-month sentence created unwarranted sentence
disparities." Walker, 844 F.3d at 1259
(summarizing Friedman, 554 F.3d at 1307-14).
Friedman admitted to committing eight bank robberies, and at
least two of the "robberies involved weapons or the
threat of weapons." Friedman, 554 F.3d at 1309.
Friedman himself acknowledged he had "only been able to
remain free of prison for twenty months out of the
twenty-seven years of his adult life." Id.
Nothing in Friedman's record of consistent reversion to
crime suggested that he would not again return to a life of
the face of these strong indications of a propensity to
recidivate, the district court provided no specific facts to
support its conclusion that the defendant would not be prone
to recidivism. Instead, the judge cited only "a feeling
about [him] that [he] can make it and [he's] going
to." Friedman, 554 F.3d at 1307. Because the
court did not cite to any specific facts supporting its
conclusion, we concluded the sentence was arbitrary and
in contrast, the district court set forth concrete reasons
why it would vary below the Guidelines. Since the court
rooted its decision in specific, permissible facts particular
to each defendant, Friedman does not compel a
Walker considered a sentence for two counts of bank
robbery that had been reduced from a range of 151-188 months
to 33 days of time-served in pretrial detention. We found the
sentence substantively unreasonable because the district
court failed to weigh the § 3553(a) factors
holistically, instead relying "almost exclusively"
on one factor-Walker's "newfound sobriety"-to
justify the sentence. Walker, 844 F.3d at 1259.
far from the case before us now. Here, the court carefully
addressed each factor and concluded its assessment of all of
the factors counseled a downward variance for each defendant.
While it is doubtful we would have weighed or applied the
factors the same way in this case given the seriousness of
the crimes, on balance, the court did not impose sentences
outside permissible choice.
in Morgan, we reversed a downward variance from a
range of 41-51 months to five years of probation for a
politician convicted of bribery. "[T]he court's
decision to vary downward to probation was based on the
following: (1) seriousness of the offense, (2) the letters of
support, and (3) deterrence." 635 Fed.Appx. at 448. We
found the district court "paid only lip service to the
seriousness of the offense" because it explained its
"fair sentence" could be "reached by first
calculating the guideline sentence based on the crime of
conviction (Count 63) and then dividing it by 63, the total
number of counts, including the mistried and acquitted counts
. . . ." Id. By proffering this
rationalization, the district court mitigated the seriousness
of the convicted offense with the mistried and acquitted
counts, which should not have made the convicted count any
less blameworthy. This sentencing methodology was arbitrary
and considered impermissible factors, making the sentencing
substantively unreasonable. The court similarly placed undue
emphasis on supporting letters while overly discounting the
need for deterrence.
we found the court's sentence substantively unreasonable
in Morgan because the court considered impermissible
factors and failed to consider an important factor: general
deterrence. In the present case, however, the district court
did not rely on impermissible factors, nor did it fail to
consider any important factors.
none of the cases the government cites calls into question
our conclusion here.
government further suggests the district court could not
justify a variance by relying on facts that the Guidelines
already took into account. But that suggestion is mistaken.
"[U]nder current precedent '[d]istrict courts have
broad discretion to consider particular facts in fashioning a
sentence under 18 U.S.C. § 3553(a), even when those
facts are already accounted for in the advisory guidelines