United States v. Sullivan

FILED
United States Court of Appeals
Tenth Circuit

February 20, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 07-2263
v. (D. N.M.)
RICKY LEE SULLIVAN, (D.C. No. 1:06-CR-00402-JEC)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY, Chief Judge, TYMKOVICH, Circuit Judge, and LEONARD, **
District Judge.

Defendant-Appellant Ricky Lee Sullivan received a one-hundred month

sentence for his conviction for felony possession of firearms and ammunition, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, he challenges his

sentence on reasonableness grounds, contending that the district court erred in

calculating his criminal history by including his conviction for attempted perjury

*
This order and judgment is not binding precedent except under the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.
**
The Honorable Timothy D. Leonard, United States District Judge for the
Western District of Oklahoma, sitting by designation.
and his conviction for use/possession of drugs. Mr. Sullivan further argues that

the district court unreasonably refused to grant him a downward departure or

variance and failed to provide a sufficiently reasoned basis for his sentence.

We are not convinced by these arguments. The district court properly

applied the Guidelines in calculating Mr. Sullivan’s criminal history, reasonably

imposed a within-Guidelines sentence, and provided a sufficient explanation of

the sentence imposed. Exercising jurisdiction under 18 U.S.C. § 3742(a), we

therefore affirm Mr. Sullivan’s sentence.

I. BACKGROUND

In October 2005, Mr. Sullivan brandished a firearm during an altercation

with a neighbor in Bloomfield, New Mexico. Mr. Sullivan was arrested for

aggravated assault with a deadly weapon.

Later, police obtained a search warrant for Mr. Sullivan’s home and pickup

truck to locate the firearm. During the search of Mr. Sullivan’s truck, police

discovered a box of ammunition, a zippered bag containing methamphetamine, a 9

mm pistol, three glass pipes, a digital scale, a police scanner, and a backpack with

surveillance equipment.

Police executed a second search warrant at Mr. Sullivan’s house, camper

trailer, and shed. During that search, police discovered three .22 caliber rifles,

two shotguns, marijuana, a police scanner, drug paraphernalia, cocaine, and

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methamphetamine. Later, police determined that two of the seized firearms were

stolen.

On February 22, 2006, Mr. Sullivan was indicted for being a felon in

possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2) (Count I); possession of an unregistered firearm, in violation of 26

U.S.C. §§ 5861(d) and 5871 (Count II); and possession of less than 50 grams of

methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(C) (Count III).

At his detention hearing on March 15, 2006, Mr. Sullivan informed the

court of a preexisting leg injury, stemming from a 2004 ATV accident. Absent

prior treatment, the leg injury carried a risk of amputation.

Pursuant to a plea agreement, Mr. Sullivan pleaded guilty to Count I (being

a felon in possession of firearms and ammunition). The Presentence Report

(“PSR”) calculated Mr. Sullivan’s criminal offense level as follows: a base level

of twenty-two, pursuant to U.S.S.G. § 2K2.1(a)(3)(A)(ii); an additional two points

for possession of a stolen firearm, pursuant to U.S.S.G. § 2K2.1(b)(4); an

additional four points for possession of a firearm in connection with a felony

offense, pursuant to U.S.S.G. 2K2.1(b)(6); and a three-point reduction for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, for a total offense level

of twenty-seven. The PSR calculated Mr. Sullivan’s criminal history score at

seven, for a criminal history category of IV.

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 In making its calculations, the PSR took into account Mr. Sullivan’s 1996

conviction for larceny (one point); 1997 conviction for attempted perjury (one

point); 1998 conviction for use/possession of drug paraphernalia and driving with

a suspended or revoked license (one point); 1998 conviction for aggravated

battery (three points); and 2003 convictions for accessory to larceny and attempt

to commit a felony (one point).

Thereafter, Mr. Sullivan filed a sentencing memorandum contending that

his leg injury required a below-Guidelines sentence. He also filed a motion for

downward departure and objections to presentence report, requesting a downward

departure for his medical condition, physical condition, and the over-

representation of his criminal history.

The district court denied Mr. Sullivan’s motions. Adopting the PSR’s

calculated offense level and criminal history (resulting in an advisory guidelines

range of 100-120 months), the district court sentenced Mr. Sullivan to one-

hundred months’ imprisonment. This appeal followed.

II. DISCUSSION

We review Mr. Sullivan’s sentence for “reasonableness,” which has both

procedural and substantive dimensions. “A procedurally reasonable sentence

reflects the sentencing court’s [correct] calculation of the applicable advisory

Guidelines range and its application of the § 3553(a) factors.” United States v.

Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). “A sentence is substantively

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reasonable when it reflects the gravity of the crime and the § 3553(a) factors as

applied to the case.” Id. (internal quotation marks omitted).

A. The district court did not err by including Mr. Sullivan’s
conviction for attempted perjury in its criminal history category
calculus.

Under the Sentencing Guidelines, all prior sentences for felony offenses

within the applicable time period are included in calculating a defendant’s

criminal history. U.S.S.G. § 4A1.2(c). Sentences for misdemeanors are also

included, unless the misdemeanor falls within the exceptions listed in U.S.S.G.

§ 4A1.2(c). As relevant here, § 4A1.2(c)(1) excludes from calculation sentences

received for fifteen enumerated offenses “and offenses similar to them, by

whatever name they are known,” subject to some exceptions. One of the

enumerated offenses is “contempt of court.”

Invoking § 4A1.2(c)(1), Mr. Sullivan contends that the district court erred

in calculating his criminal history category by including his conviction for

attempted perjury. He argues that attempted perjury is sufficiently similar to one

of the named exclusions (contempt of court) so that 18 U.S.C. § 4A1.2(c)(1) bars

its use in the instant sentencing calculus.

In response, the government submits that Mr. Sullivan’s failure to raise his

objection to this issue at the sentencing hearing limits our review to plain error.

Mr. Sullivan, of course, disagrees, citing his objections to the PSR. We need not

resolve this dispute, however, as even under the less onerous “reasonableness”

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review, Mr. Sullivan’s claim fails.

Both parties engage in extended discussions of the similarities and

differences between the crimes of “perjury” and “contempt.” These comparisons,

however, obscure the issue before us: whether attempted perjury is similar to

contempt of court for § 4A1.2(c)(1) purposes. It plainly is not.

As we stated in United States v. Perez de Dios, to be “similar” is to be

“nearly corresponding; resembling in many respects; somewhat alike; having a

general likeness.” 237 F.3d 1192, 1198-1199 (10th Cir. 2001) (applying the

“similar” criterion in § 4A1.2(c) by comparing the general or essential

characteristics of the two offenses at issue) (internal quotation marks omitted).

Invoking Perez de Dios’ “essential characteristics” test here, we easily conclude

that the district court properly included Mr. Sullivan’s conviction for attempted

perjury in its criminal history calculus.

In New Mexico, “conduct violating a court order in the court’s presence

constitutes direct criminal contempt.” Byrnes v. Baca, 54 P.3d 996, 1003 (N.M.

Ct. App. 2002). Perjury, on the other hand, “consists of making a false statement

under oath or affirmation, material to the issue or matter involved in the course of

any judicial, administrative, legislative or other official proceeding, knowing such

statement to be untrue. State v. Naranjo, 94 N.M. 407, 411 (N.M. 1980)

(emphasis in original). Those guilty of both perjury and contempt are subject to

criminal consequences.

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 Attempted perjury, on the other hand, is an attempt to tell an untruth under

oath. A comparison of the elements of contempt of court and attempted perjury

reveals no commonality or general likeness. Indeed, the law recognizes that

offenses based on falsity are of particular concern in a system of justice utilizing

testimony. Cf. Fed. R. Evid. 609(a) (permitting the admission of a witness’s prior

act of dishonesty or false statement by for purposes of impeachment).

Because Mr. Sullivan has failed to demonstrate that his attempted perjury

conviction shares the “essential characteristics” of contempt of court, we affirm

the district court’s inclusion of attempted perjury in Mr. Sullivan’s criminal

history calculus.

B. The district court did not err by including Mr. Sullivan’s
conviction for use/possession of drugs in its criminal history
category calculus.

Mr. Sullivan contends that the district court’s addition of one criminal

history point for his use/possession of drug paraphernalia conviction in state court

was improper because the PSR states that “attorney representation is unknown.”

Aplt’s App. vol. II, at 140. Reviewing under the less-onerous “reasonableness”

standard, Mr. Sullivan’s claim fails.

Once the United States establishes the existence of a prior conviction, “the

defendant must prove by a preponderance of the evidence that the conviction was

constitutionally infirm.” United States v. Cruz-Alcala, 338 F.3d 1194, 1197 (10th

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Cir. 2003) (internal citations omitted). A “presumption of regularity” attaches to

final judgment. Id. (internal quotation marks omitted).

Mr. Sullivan does not contest the fact of the prior conviction, nor does he

state that the conviction was imposed in the absence of counsel. Indeed, Mr.

Sullivan fails to submit a single affirmative statement asserting a deprivation of

counsel. Rather, Mr. Sullivan bases his claim on the PSR’s failure to explicitly

state that he had representation. In other words, Mr. Sullivan requests this court

to reverse the decision of the district court on the basis that he may have been

uncounseled.

As the United States Supreme Court observed in Burgett v. Texas,

convictions obtained without the benefit of counsel cannot be used against a

defendant to enhance punishment for another offense. 389 U.S. 109, 114 (1967).

Here, however, Mr. Sullivan has failed to demonstrate, by a preponderance of the

evidence, that he did not receive the benefit of counsel during the drug

use/possession proceedings against him. Indeed, beyond the equivocal PSR

provision, Mr. Sullivan has failed to submit any evidence at all. Thus, we find

that the district court’s inclusion of Mr. Sullivan’s conviction for use/possession

of drug paraphernalia was proper.

C. The district court did not err when it denied Mr. Sullivan’s
motion for downward departure.

As we stated in United States v. Chavez-Diaz, we lack jurisdiction to

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“review a district court’s discretionary decision to deny a motion for downward

departure on the ground that a defendant’s circumstances do not warrant a

departure.” 444 F.3d 1223, 1228 (10th Cir. 2006) (internal quotations marks

omitted). Pursuant to 18 U.S.C. § 3742(a), however, we may review an appeal of

a sentence that:

(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing
guidelines; or
(3) is greater than the sentence specified in the applicable guidelines
range to the extent that the sentence includes a greater fine or term of
imprisonment, probation, or supervised release than the maximum
established in the guideline range. . . ;
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.

Review under § 3742(a) includes arguments that were previously barred as an

attempt to appeal a denial of a downward departure. Chavez-Diaz, 444 F.3d at

1228-29 (citing United States v. Cooper, 437 F.3d 324, 328 (3d Cir. 2006);

United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2005)).

In imposing a sentence, a district court must:

consider the nature and circumstances of the offense and the history and
characteristics of the defendant[;] . . . [consider] the general purposes
of sentencing, including: the need for the sentence imposed . . . to
reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; . . . to afford adequate
deterrence to criminal conduct; to protect the public from further crimes
of the defendant; and to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in
the most effective manner. . . ; avoid unwarranted sentence disparities
. . . . [and] provide restitution to any victim.

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Gall v. United States, 128 S. Ct. 586, 597 n.6 (2007) (internal citations and

quotation marks omitted). Here, the district court reviewed the PSR’s factual

findings and considered the sentencing guidelines, as well as the § 3553(a)

factors. Mr. Sullivan has a lengthy criminal history including felony theft,

aggravated battery with a deadly weapon, misdemeanor perjury, use/possession of

drug paraphernalia, and larceny. The instant offense involved six weapons, one

of which was stolen, and all of which were involved in the initial charges of

aggravated assault, receipt of stolen property, possession of a firearm, and

resisting arrest. The district court’s imposition of a sentence at the low end of the

Guidelines range is entitled to a rebuttable presumption of reasonableness, which

Mr. Sullivan has failed to overcome. See United States v. Sanchez-Juarez, 446

F.3d 1109, 1114 (10th Cir. 2006); United States v. Rojas, 531 F.3d 1203, 1209

(10th Cir. 2008) (“A sentence which falls within a properly calculated Guideline

range is entitled to a rebuttable presumption of reasonableness.”) (citation

omitted)).

D. The district court gave due consideration to Mr. Sullivan’s legal
arguments, and provided a sufficiently reasoned basis for his
sentence.

Mr. Sullivan contends that the district court failed to provide a sufficient

explanation for the sentence it imposed. Aplt’s Br. at 28-29. In addition, Mr.

Sullivan claims that the district court failed to address his non-frivolous issues at

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the sentencing hearing itself or in any subsequent written findings. Id. at 31.

In general, the district court has significant discretion in sentencing.

United States v. Tindall, 519 F.3d 1057, 1065 (10th Cir. 2008). We review a

sentence for reasonableness, applying an abuse of discretion standard. Id.

Pursuant to the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), “every sentence that a district court ultimately imposes must

reflect its determination of what is reasonable in light of the . . . § 3553(a)

factors.” Sanchez-Juarez, 446 F.3d at 1114 (emphasis added).

Under § 3533(c):

The court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence, and, if the
sentence--
(1) is of the kind, and within the range, described in subsection (a)(4),
and that range exceeds 24 months, the reason for imposing a sentence
at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection
(a)(4), the specific reason for the imposition of a sentence different
from that described . . . .

As the Supreme Court clarified in Rita v. United States, “the sentencing judge

should set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” 127 S. Ct. 2456, 2468 (2007). But the Court also

made clear that a district judge is not required to give an exhaustive list of

reasons. Indeed, “the law leaves much, in this respect, to the judge’s own

professional judgment.” Id. More specifically, the district court must calculate

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and consider the sentencing range indicated by the Guidelines, consider that range

as advisory, and then consider the range in light of § 3553(a). United States v.

Hamilton, 510 F.3d 1209, 1218 (10th Cir. 2007).

The district court need not consider each factor listed in 18 U.S.C. §

3553(a) prior to imposing a sentence, nor must the district court recite “magic

words” to demonstrate that it has fulfilled its responsibility to be mindful of the

factors Congress instructed it to consider. United States v. Rines, 419 F.3d 1104,

1107 (10th Cir. 2005). As we observed in Tindall, “a one-sentence explanation

accompanying a within-guidelines sentence” may be sufficient. 519 F.3d at 1065

(stating that the district court’s explanation that “the sentence I am about to

impose is the most reasonable sentence upon consideration of all factors

enumerated in 18 United States Code 3553” was proper, and “[t]hus, the district

court committed no procedural error in explaining [the defendant’s] sentence”).

Although Tindall suggests that district courts may be required to provide a more

detailed explanation where the defendant raises specific § 3553(a) arguments, id.,

for sentences that are within-Guidelines, a court need state only “the appropriate

guideline range, and how it was calculated.” United States v. Ruiz-Terrazas, 477

F.3d 1196, 1202 (10th Cir. 2007)

In this case, the district court imposed a within-Guidelines sentence and, in

so doing, noted the range of Mr. Sullivan’s sentence and how it was calculated.

Although the district court’s explanation could have been more detailed, it was

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procedurally reasonable.

III. Conclusion

We therefore AFFIRM the conclusions of the district court.

Entered for the Court,

Robert H. Henry
Circuit Judge

.

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