Professional Documents
Culture Documents
February 5, 2009
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
No. 08-3223
v.
(D. Kansas)
Defendant - Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Anthony Eugene Clark pled guilty to one count of
possession of a firearm after being convicted of a felony, in violation of 18
This order and judgment is not binding precedent except under the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.
BACKGROUND
In October 2005, officers from a Bureau of Alcohol, Tobacco and Firearms
task force investigated a report of a stolen firearm being sold to a pawn shop in
Topeka, Kansas. The officers determined that Clark had sold the firearm in
question. When the officers interviewed him, Clark readily admitted selling the
gun, although he stated he had not stolen it. Clark subsequently stated that he
sold the firearm for money to buy diapers and milk for his son, and he further
stated that he used some of the proceeds from the weapon sale to buy marijuana.
In preparation for sentencing under the United States Sentencing
Commission, Guidelines Manual (USSG), the United States Probation Office
prepared a presentence investigation report (PSR). The PSR determined that
Clarks base offense level was twenty, pursuant to USSG 2K2.1(a)(4), and added
two levels because the weapon had been stolen, resulting in an adjusted offense
level of twenty-two. After a three-level reduction for acceptance of
responsibility, Clarks total offense level was nineteen. With a criminal history
category of V, the applicable advisory Guidelines range was fifty-seven to
seventy-one months.
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DISCUSSION
We review sentences for reasonableness. United States v. Verdin-Garcia,
516 F.3d 884, 895 (10th Cir.), cert. denied, 129 S. Ct. 161 (2008).
Reasonableness encompasses both a procedural and a substantive component. Id.
Clark complains only that his sentence is substantively unreasonable. A
sentence is substantively unreasonable if the length of the sentence is
unreasonable given the totality of the circumstances in light of the 18 U.S.C.
3553(a) factors. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.), cert.
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denied, 129 S. Ct. 428 (2008). Our review of the substantive reasonableness of a
sentence is limited to determining whether the sentencing judge abused his
discretion. Verdin-Garcia, 516 F.3d at 898. Sentences imposed within a
properly calculated Guidelines range are accorded a presumption of substantive
reasonableness. United States v. Hernandez, 509 F.3d 1290, 1298 (10th Cir.
2007).
Our inquiry is directed to whether the district court abused its discretion in
sentencing Clark to fifty-seven months imprisonment. The district court
explained its sentence as follows:
Defendant has a very substantial criminal record. He has eight
juvenile convictions. Most of the convictions are for misdemeanor
theft. But, there is also a juvenile conviction for burglary and a
juvenile conviction in 1990 for first degree murder. Defendant has
seven adult convictions, including convictions for robbery and
burglary. One conviction for criminal use of weapons involved a
gunshot victim. Defendant has two vehicle burglary charges
pending.
....
The task of the court is to impose a sentence sufficient, but not
greater than necessary, to comply with the purposes of 18 U.S.C.
3553(a)(2), after considering the nature and circumstances of the
offense, the history and characteristics of the defendant, the
Sentencing Guidelines, the need to avoid unwarranted sentencing
disparities, and the other factors mentioned in the statute. After
considering all of these factors, the court believes a sentence of 57
months is appropriate in this case.
The court has considered the circumstances of pawning the gun
which led to the charge in this case. The court does not believe these
circumstances provide grounds for a departure in this case. We have
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CONCLUSION
For the foregoing reasons, the sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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