FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 8, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-3257
v. (D. Kansas)
SILAS SWOPES, (D.C. No. 2:08-CR-20035-KHV-2)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
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.
Silas Swopes pleaded guilty to one count of possession with intent to
distribute 100 grams or more of heroin within 1000 feet of a school, in violation
of 21 U.S.C. §§ 841 and 860, and one count of distribution of heroin within 1000
*
This order and judgment is not binding precedent except under the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.
feet of a school, also in violation of 21 U.S.C. §§ 841 and 860. The district court
sentenced Swopes to a term of imprisonment of 262 months, a sentence at the
bottom of the range set out in the advisory Sentencing Guidelines. On appeal,
Swopes argues, inter alia, that his sentence is procedurally unreasonable because
the district court applied a presumption of reasonableness to the advisory
Sentencing Guidelines and did not adequately consider the statutory sentencing
factors set out in 18 U.S.C. § 3553(a). In an exhibition of admirable candor, the
United States concedes the sentence imposed by the district court is procedurally
unreasonable and recognizes the district court’s procedural errors are not
harmless.
Upon an independent review, we agree that the district court’s sentence is
procedurally unreasonable. See United States v. Resendiz-Patino, 420 F.3d 1177,
1182 (10th Cir. 2005) (noting this court is not bound by a party’s concession of
error). In particular, in a post-judgment document, the district court specifically
stated it had committed “clear error” by affording a presumption of correctness to
the advisory Guidelines range and by failing to adequately consider the
sentencing factors set out in § 3553. Gall v. United States, 128 S. Ct. 586, 596-97
(2007) (holding that while appellate courts are entitled to presume a within-
Guidelines sentence is reasonable, a district court may not presume the Guidelines
range is reasonable, but must instead “make an individualized assessment based
on the facts presented”); id. at 591 (describing the failure to consider the § 3553
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factors as a “significant procedural error”). Because the district court committed
procedural error, and because the government concedes that error is not
harmless, 1 we REMAND this matter to the district court to vacate Swopes’s
sentence and resentence him in a manner consistent with this opinion.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
United States v. Kaufman, 546 F.3d 1242, 1270 (10th Cir. 2008) (holding
that the “burden of proving harmlessness is on the beneficiary of the error”).
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