United States v. Barnes, 17-7016

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: TYMKOVICH, Chief Judge.
• Citation: 890 F.3d 910
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Raymond A. BARNES, Defendant–Appellee. United States of America, Plaintiff–Appellant, v. Christopher A. Brown, Defendant–Appellee.
• Docket Number: No. 17-7017,No. 17-7016,17-7016
• Decision Date: 16 May 2018

890 F.3d 910

UNITED STATES of America, Plaintiff–Appellant,
v.
Raymond A. BARNES, Defendant–Appellee.

United States of America, Plaintiff–Appellant,
v.
Christopher A. Brown, Defendant–Appellee.

No. 17-7016
No. 17-7017

United States Court of Appeals, Tenth Circuit.

FILED May 16, 2018

April 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., for Appellant.

Barry 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.

Jimmy L. Hopkins, Tahlequah, Oklahoma, for Appellee Brown.

Before TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit Judges.

TYMKOVICH, Chief Judge.

This is 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.

I. Background

Barnes 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 See United States v. Brown , 654 Fed.Appx. 896, 900–902 (10th Cir. 2016) (unpublished).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.

Authorities 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 supervised release.

In the 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.

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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 substantively unreasonable.

On 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.

The 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.

II. Analysis

The 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 substantively unreasonable.

A. Substantive Reasonableness

We 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) ).

When determining a sentence, a court must consider the seven statutory factors set forth in § 3553(a). The factors include:

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).

We give 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, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). "The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights

890 F.3d 916

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, 128 S.Ct. 586. 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." Id.

And 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).

In 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 (10th Cir. 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.

For 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.

Consider, 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 ).

Rather 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...