F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 24, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-2110
v. (D.C. No. CR-04-788 JB)
(New M exico)
STEPH EN REX A LLEN ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Stephen Rex Allen pled guilty to violating 18 U.S.C. § 2113’s prohibition
on attempted and completed bank robberies and was sentenced to 151 months
imprisonment and 3 years of supervised release. On appeal, he contends the
district court erred in calculating his sentencing range under the federal guidelines
and that his sentence is unreasonable. W e affirm.
Prior to sentencing, the United States Probation Office developed a
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
presentence report (PSR ) for M r. Allen. He was assigned a base offense level of
20 and a 2 level increase pursuant to U.S.S.G. § 2B3.1(b)(1) because his objective
was the taking of a financial institution’s property, for an initial adjusted offense
level of 22. Because he was a career criminal, he was assigned an adjusted
offense level of 32 pursuant to U.S.S.G. § 4B1.1, and a downward adjustment of 3
for acceptance of responsibility, see U.S.S.G. § 3E1.1, for a total offense level of
29. W ith a criminal history category of VI, his final offense level led to a
recommended guideline imprisonment range of 151-188 months.
Prior to sentencing, M r. Allen filed a sentencing memorandum asserting he
was entitled to a three level reduction in his offense level pursuant to U.S.S.G. §
2X1.1 on the ground that his crime was an attempt rather than a completed
offense. 1 The district court denied M r. Allen’s request. At the conclusion of the
hearing, the court stated it had “taken account of the sentencing goals that are in
[18 U.S.C.] Section 3553(a)” and the guidelines recommendation, and sentenced
M r. A llen to 151 months imprisonment, the low end of the guidelines range.
Rec., vol. V at 39.
1
See U.S.S.G. § 2X1.1 (“(a) Base Offense Level: The base offense level from
the guideline for the substantive offense, plus any adjustments from such guideline for
any intended offense conduct that can be established with reasonable certainty. (b)
Specific Offense Characteristics (1) If an attempt, decrease by 3 levels, unless the
defendant completed all the acts the defendant believed necessary for successful
completion of the substantive offense or the circumstances demonstrate that the
defendant was about to complete all such acts but for apprehension or interruption by
some similar event beyond the defendant's control.”)
-2-
M r. Allen appeals the denial of a reduction under § 2X1.1 and, in the
alternative, argues his 151 month sentence was unreasonably long in light of the
18 U.S.C. § 3553(a) factors. W hen reviewing the district court’s application of
the guidelines, we review legal findings de novo and factual findings for clear
error. United States v. M artinez, 418 F.3d 1130, 1133 (10th Cir. 2005). W here
the district court errs in applying the guidelines we “must remand . . . unless the
error is harmless.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).
If the district court's application of the guidelines was correct or any errors
harmless, then we decide whether the sentence was substantively reasonable.
United States v. Hernandez-C astillo, 449 F.3d 1127, 1129-30 (10th Cir.2006).
W e first address M r. Allen’s contention that the guidelines were
misapplied. The Probation Office initially calculated an offense level of 22,
assigning 20 levels for bank robbery and a 2 level upward adjustment for his
objective of taking bank property. Because M r. Allen qualified as a career
offender under § 4B1.1(a), however, his final offense level was set by § 4B1.1(b).
See U.S.S.G. § 4B1.1(b) (Career criminal offense levels calculated pursuant to §
4B1.1(b) supersede lesser levels that would be “otherw ise applicable.”). In M r.
Allen’s case, he was assigned an offense level of 32 as required by U.S.S.G. §
4B1.1(b), less a 3 level downward adjustment for acceptance of responsibility, for
an adjusted offense level of 29. The district court sentenced him accordingly.
See Rec., vol. V at 39 (“The offense level is 29 . . . [and t]he guideline
-3-
imprisonment range is 151-188.”).
Pursuant to § 1B1.1, provisions of the guidelines are to be “applied in” a
specified “order.” U.S.S.G. § 1B1.1. In the first two steps, the court must
determine the applicable offense guideline and the appropriate base offense level,
and apply “specific offense characteristics, cross references, and special
instructions contained in the particular guideline in Chapter Two.” U.S.S.G. §§
1B1.1(a) and (b). A fter applying any relevant Chapter Three adjustments, §
1B1.1(c), the guidelines require that the court then apply applicable adjustments
in Parts A and B of Chapter Four, § 1B1.1(f). W e have previously held the
sequential instructions of § 1B1.1 dictate that any pertinent Chapter Three
adjustments are to be incorporated into the “otherwise applicable” offense level,
and not into the level provided by Part Four’s career offender provision. United
States v. Jeppeson, 333 F.3d 1180, 1183 (10th Cir. 2003). Logically, then,
Jeppeson requires that the Chapter Tw o specific offense characteristics must also
be incorporated into the court’s initial determination of the “otherwise applicable”
offense level, and not into the latter career offender level determined by Chapter
Four. 2 Because the attempt provision at issue here is found in Chapter Two, it
2
“Acceptance of Responsibility,” U.S.S.G. § 3E1.1, is the only adjustment that
diminishes offense levels set by the table in § 4B1.1(b). See U.S.S.G. § 4B1.1(b) (“If
an adjustment from § 3E1.1 (Acceptance of Responsibility) applies, decrease the
offense level by the number of levels corresponding to that adjustment.”). We have
concluded from this specific authorization of an acceptance of responsibility reduction
in § 4B1.1 that the Sentencing Commission expressly declined to incorporate other Pre-
Chapter Four adjustments into the career criminal calculations. See Jeppeson, 333 F.3d
-4-
modified M r. Allen’s initial offense level but not the determinative Chapter Four
offense level and resulting guidelines range. W e therefore need not decide
whether the district court erred in refusing to apply the § 2X1.1 reduction for
attempt, because even if it did the error was harmless.
M r. Allen also contends the 151 month sentence imposed by the district
court was unreasonably lengthy in light of the 18 U.S.C. § 3553(a) factors. W e
are not persuaded. The district court explicitly compared the facts of this case to
those of other career criminals convicted of bank robbery and sentenced by the
court. See Rec., vol. V at 40-41. In light of M r. Allen’s serious criminal history
and the other 3553(a) factors, the court concluded a sentence at the bottom of the
guidelines range was appropriate. Although M r. Allen provides specific examples
of lesser sentences for completed bank robberies, he notes that in at least two of
those cases the individual had no prior criminal history. See Aplt. Br. at 25 n.1.
The guidelines seek parity “among defendants with similar records who have been
found guilty of similar conduct,” 18 U.S.C. 3553(a), and these sentences therefore
have limited relevance for M r. Allen, who carries the additional burden of his
significant criminal history. The single case he cites involving a career criminal
was expressly considered by the district court during its sentencing of M r. A llen.
See Aplt. Br. at 25 n.1; Rec., vol. V at 40. W e are not convinced M r. Allen’s
at 1184.
-5-
sentence was unreasonable. 3
Accordingly, we A FFIR M .
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
3
Mr. Allen asks us to consider United States v. Williams, 435 F.3d 1350 (11th
Cir. 2006), in which the Eleventh Circuit concluded a below guidelines district court
sentence was reasonable in light of allegedly analogous facts. This precedent, however,
provides little value in evaluating the reasonableness of a within guidelines sentence.
The breadth of reasonable sentences may broadly encompass both guidelines and non-
guidelines sentences, and we cannot ascertain whether the court in Williams would have
concluded a within guidelines sentence was unreasonable. Thus, even if we were to
attach great precedential weight to Williams, its holding provides limited guidance in
the exercise of our appellate review of Mr. Allen’s within guidelines sentence.
-6-