United States v. Boyd

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 27, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,
No. 05-6315
Plaintiff-Appellee,
v. (W.D. Oklahoma)
GILBERT EARL BOYD, (D.C. No. CR-05-60-L)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

On June 13, 2005, Gilbert Earl Boyd pleaded guilty to two counts of being

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The

district court sentenced Mr. Boyd to 151 months’ imprisonment, including a 120-

*
This order and judgment is not binding precedent, except under the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.
month term of imprisonment on the first count and a 31-month sentence on the

second count, to be served consecutively. Mr. Boyd appeals the sentence,

contending that it is unreasonable because the district court relied too heavily on

the Sentencing Guidelines and improperly imposed consecutive sentences. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

On April 2, 2005, a grand jury returned a five-count indictment against Mr.

Boyd, who had previously been convicted of a felony. The indictment charged

offenses committed on three different dates: (1) possession of a firearm, on April

13, 2002; (2) possession with intent to distribute cocaine base, (3) possession of a

firearm, and (4) possession of a firearm during a drug trafficking crime, all on

December 2, 2004; and (5) possession with intent to distribute cocaine base, on

February 11, 2005.

On June 13, 2005, Mr. Boyd pleaded guilty to the two counts of being a

felon in possession of a firearm. Pursuant to the plea agreement, the district court

dismissed the remaining counts of the indictment. A presentence report (“PSR”)

recommended a sentencing range of 151-188 months’ imprisonment for the two

counts, based in part on a base offense level tied to the amount of drugs that Mr.

Boyd possessed on December 2, 2004 and February 11, 2005. An individual §

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922(g) offense has a statutory maximum of 120 months’ imprisonment.

On September 16, 2005, the district court sentenced Mr. Boyd to 151

months’ imprisonment, followed by two years of supervised release. This

sentence included (1) a 120-month term of imprisonment for the April 13, 2002

count of being a felon in possession of a firearm and (2) a 31-month term of

imprisonment for the December 2, 2004 count of being a felon in possession of a

firearm. The district court ordered the sentences to be served consecutively. At

sentencing, the district court noted:

Based upon all the factors, the Court, in considering both [18 U.S.C. §
3584], as well as Title 18 and the factors to consider in 3553(a), the
Court also, while the sentencing guidelines are not mandatory at this
time, the Court certainly gives great weight to . . . the guidelines, as
well as the other factors which I mentioned in . . . Title 18.

Rec. vol. II, at 17 (Sent. Tr., dated Sept. 16, 2005).

II. DISCUSSION

On appeal, Mr. Boyd contends that the district court erred (1) by giving

“great weight” to the Sentencing Guidelines and (2) by not running the two counts

concurrent to one another under 18 U.S.C. § 3584. We review de novo the

district court’s interpretation of a federal statute and application of the Sentencing

Guidelines, and we review Mr. Boyd’s sentence for reasonableness. United States

v. Kristl, 437 F.3d 1050, 1053-54 (10th Cir. 2006).

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 As to the Mr. Boyd’s first argument, the district court stated it gave “great

weight” to the Sentencing Guidelines, but it also clearly indicated that it was not

bound by the Guidelines by recognizing that “the sentencing guidelines are not

mandatory at this time.” Rec. vol. II, at 17. The court’s assignment of “great

weight” to the Guidelines does not change the fact that it took notice of the

advisory nature of the Guidelines and was aware of its sentencing discretion.

Further, the district court retained discretion under 18 U.S.C. § 3584(a) to

impose consecutive terms of imprisonment on Mr. Boyd. That section provides

that “[i]f multiple terms of imprisonment are imposed on a defendant at the same

time, . . . the terms may run concurrently or consecutively . . . . Multiple terms of

imprisonment imposed at the same time run concurrently unless the court orders

or the statute mandates that the terms are to run consecutively.” 18 U.S.C. §

3584(a). A district court considers the § 3553(a) factors when determining

whether to impose concurrent or consecutive terms. Id. § 3584(b).

Mr. Boyd contends that the district court improperly relied on Section

5G1.2(d) of the Sentencing Guidelines when it applied § 3584(a). Section

5G1.2(d) states:

If the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence imposed
on one or more of the other counts shall run consecutively, but only to
the extent necessary to produce a combined sentence equal to the total
punishment. In all other respects sentences on all counts shall run
concurrently, except to the extent otherwise required by law.

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U.S.S.G. § 5G1.2(d). “[T]otal punishment” is the “combined length of the

sentence” and “is determined by the court after determining the adjusted

combined offense level and the Criminal History Category.” Id. § 5G1.2 cmt. n.1.

When the district court imposed consecutive terms of imprisonment on Mr.

Boyd, it recognized (1) its discretion under § 3584(a) to impose either

consecutive or concurrent terms and (2) the advisory nature of the Guidelines.

Further, the district court stated that it considered the factors under § 3553(a)

before sentencing Mr. Boyd to 151 months’ imprisonment, the lower end of the

advisory Guidelines range. Our circuit has repeatedly held that a district court

need not individually consider each § 3553(a) factor before issuing a sentence.

See United States v. Contreras-Martinez, 409 F.3d 1236, 1242 (10th Cir. 2005).

Moreover, “a sentence that is properly calculated under the Guidelines is

entitled to a rebuttable presumption of reasonableness. This is a deferential

standard that either the defendant or the government may rebut by demonstrating

that the sentence is unreasonable when viewed against the other factors delineated

in § 3553(a).” Kristl, 437 F.3d at 1054. Mr. Boyd has not rebutted this

deferential standard, and the district court’s sentence was thus reasonable.

III. CONCLUSION

Accordingly, we AFFIRM the district court’s sentence.

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Entered for the Court,

Robert H. Henry,
Circuit Judge

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