United States v. Wagner

FILED
United States Court of Appeals
Tenth Circuit

October 24, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 13-8092
v. (D.Ct. No. 2:13-CR-00101-SWS-1)
(D. Wyo.)
TRAVIS WAGNER,

Defendant-Appellant.
______________________________

ORDER AND JUDGMENT *

Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.

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.

Travis Wagner pled guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He now appeals his

*
This order and judgment is not binding precedent except under the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.
69-month downward variant sentence, claiming it is substantively unreasonable

because the district court “did not vary downward anywhere near enough” to

properly account for the sentencing factors in 18 U.S.C. § 3553(a). We exercise

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mr.

Wagner’s sentence.

I. Factual and Procedural Background

On October 21, 2012, at approximately 6:20 p.m., a pharmacist at the

Medical Hill Pharmacy called the Gillette, Wyoming police department to report

an attempted break-in through the pharmacy’s drive-up window. Based on a

description of the vehicle involved, a police officer stopped Mr. Wagner in his

pickup truck less than a mile away from the pharmacy; at that time, Mr. Wagner’s

pupils were dilated and he later admitted he used a prescription drug the day of

his arrest. Inside the vehicle, officers found various burglary tools, including a

new yellow crowbar, new black stocking cap with eye holes cut out, new leather

gloves, and a flashlight, along with a small locked gun safe on the front passenger

seat and prescription bottles. An investigation at the pharmacy revealed the

drive-up window had been partially pried open and yellow paint remained from

the item used to pry it open. When interviewed, Mr. Wagner admitted he tried to

break into the pharmacy and purchased the crowbar, stocking cap, and gloves at

Walmart earlier that evening for the purpose of committing the burglary. After

Mr. Wagner’s arrest, officers executed a search warrant and, using the key found

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in the vehicle’s center console, opened the gun safe, finding a loaded Springfield

XDM handgun, a Walmart bag, and a receipt for his purchase of the crowbar,

stocking cap, gloves, and two prescription drugs. The receipt was time-stamped

approximately 80 minutes before the reported break-in at the pharmacy. Officers

also executed another search warrant at the residence where Mr. Wagner lives

with his parents. As he acknowledges on appeal, in his basement bedroom

officers found a loaded semi-automatic Glock handgun under his pillow, a sawed-

off 12-gauge Remington shotgun leaning against the wall next to his bed, a .223-

caliber semi-automatic Bushmaster rifle (capable of discharging a large-capacity

magazine), a Kimber pistol in a drawer, gun cleaning supplies, and multiple types

and amounts of ammunition in various locations throughout the room. 1

Mr. Wagner pled guilty to being a felon in possession of a firearm (i.e., the

Springfield handgun found in his vehicle); in his plea agreement, he stipulated he

possessed the handgun in connection with the pharmacy burglary, acknowledging

this may increase his offense level under U.S.S.G. § 2K2.1(b)(6)(B), and further

stated he understood the calculation of his sentence may also be affected by the

firearms seized at his residence. Following his guilty plea, a probation officer

prepared a presentence report using the applicable 2012 Guidelines and calculated

1
Authorities never charged Mr. Wagner with possession of these firearms
but they were included in his relevant conduct and significantly increased his
advisory United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range,
as discussed hereafter.

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his base offense level at 20, pursuant to U.S.S.G. § 2K2.1(a)(5) and 26 U.S.C.

§ 5845(a), based on Mr. Wagner’s possession of the sawed-off shotgun found near

his bed. His offense level was increased two levels under § 2K2.1(b)(1)(A) for

his possession of three to seven firearms; two levels under § 2K2.1(b)(3)(B) for

possession of a sawed-off shotgun as a destructive device; and four levels under

§ 2K2.1(b)(6)(B) for possession of the Springfield handgun used in connection

with the pharmacy burglary. The probation officer also reduced his sentence

three levels under U.S.S.G. § 3E1.1 for acceptance of responsibility, resulting in a

total offense level of 25, which, together with a criminal history category of IV,

resulted in a Guidelines range of 84 to 105 months’ imprisonment. The probation

officer also pointed to Mr. Wagner’s admission he is addicted to pain medication

and alcohol and his belief his addiction created most of his substance abuse

problems and criminal conduct. While the probation officer stated, “[t]here is no

doubt he needs treatment,” she also noted Mr. Wagner’s participation in a number

of treatment programs has not deterred his abusive conduct.

Prior to and at the sentencing hearing, Mr. Wagner argued the gun in his

vehicle was in a locked safe, making its relationship to the burglary “marginal.”

The government presented the testimony of a detective who confirmed Mr.

Wagner was in possession of, or had access to, the weapons and ammunition used

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to calculate his sentence. 2 After affirming the Guidelines range was 84 to 105

months’ imprisonment and applying the sentencing factors in 18 U.S.C.

§ 3553(a), the district court granted a downward variance–equal to a one-level

reduction of his offense level–based on his addiction problems. 3 While it

recognized Mr. Wagner’s addiction problem as a reason for the variance, it

declined to vary further, noting the seriousness of Mr. Wagner’s possession of

firearms (including a sawed-off shotgun and Bushmaster rifle) and the high-risk

situation of his committing a burglary with a firearm, causing the potential for

murder if the pharmacist had intervened. It also determined the four-level

enhancement applied, given he had “access” to the gun and “carried” it with him

when he committed the burglary, as demonstrated by the Walmart receipt found in

2
It also presented the testimony of a special agent with the Bureau of
Alcohol, Tobacco, and Firearms confirming the out-of-state manufacture of
certain firearms.
3
While the record clearly demonstrates the district court applied a
variance under the § 3553(a) sentencing factors, it used the nomenclature of a
downward “departure,” rather than a “variance.” To clarify, a sentence above or
below the recommended Guidelines range based on an application of Chapters
Four or Five of the Guidelines is referred to as a “departure,” while a sentence
above or below the recommended Guidelines range through application of the
sentencing factors in 18 U.S.C. § 3553(a), as applied here, is called a “variance.”
United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007) (overruled on
other grounds, U.S. Kaufman, 546 F.3d 1242, 1270 (10th Cir. 2008)). The
unintentional misuse of the term “departure” does not, in this case, prevent our
review on appeal, and we have jurisdiction to review such a variance for
reasonableness under the § 3553(a) factors. See United States v. Chavez-Diaz,
444 F.3d 1223, 1229 (10th Cir. 2006).

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the safe showing he had opened the safe just prior to the burglary. It also noted

Mr. Wagner did not point the gun at anyone and, if he had, another issue would

have been involved in his sentencing. At this juncture, the government pointed

out Mr. Wagner had already stipulated he possessed the gun in connection with

the burglary; Mr. Wagner’s counsel then confirmed this point by reviewing the

plea agreement and apologized for even raising the issue. As a result, the district

court did not rule on the matter and proceeded to calculate the sentence. It

applied an offense level of 24 and a sentence at the bottom of the newly-

calculated Guidelines range at 77 months; this, together with credit for the eight

months Mr. Wagner served on a concurrent state sentence on the burglary

conviction, resulted in a final sentence of 69 months’ imprisonment.

II. Discussion

Mr. Wagner now appeals his sentence, claiming his sentence is

substantively unreasonable based on the four-level enhancement for his

possession of a gun in connection with the burglary. In support, he claims: 1) the

gun was “most probably” or “very likely” “in a locked safe in his truck at that

time” and “there was no proof” he had the gun “in hand at the pharmacy” or was

in the truck where the safe was located when he tried to pry open the drive-

through window; and 2) the safe, which required a key, was a “powerful check”

against the gun’s “impulsive or quick use,” thereby lessening the potential of

facilitating a felony offense. While he admits “it is possible” he “could have had

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the gun with him when he walked up to the window” and “put it back in the safe

on returning to his truck,” he suggests his “main interest would have been in

getting away from the pharmacy, and not in putting the gun back in the safe,” and

points out he did not have much time to put the gun in the safe given the small

amount of time between his aborted burglary and when the police stopped him.

Mr. Wagner also claims a larger variance is necessary because, as the

district court was aware, his prior record consists of non-violent offenses caused

by his history of addiction, and he is a much better person when sober. While he

previously had a gun in his vehicle when convicted for driving under the

influence, he points out that he was only twenty years old at that time and it

occurred twelve years before his instant arrest. In addition, he states that while

the district court gave his addiction “mitigating weight,” it did not vary enough

given its recognition he has fine qualities when sober.

We review a sentence for reasonableness, giving deference to the district

court under an abuse-of-discretion standard. See United States v. Smart, 518 F.3d

800, 802-03, 805 (10th Cir. 2008). Thus, we review “‘all sentences–whether

inside, just outside, or significantly outside the Guidelines range–under a

deferential abuse of discretion standard,’” in which we afford substantial

deference to the district courts. Id. at 806 (quoting Gall v. United States, 552

U.S. 38, 41 (2007)). “Our appellate review for reasonableness includes ... a

substantive component which relates to the length of the resulting sentence.” Id.

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at 803. We review the district court’s interpretation and application of the

sentencing guidelines de novo and review the court’s factual findings for clear

error. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). “We

may not examine the weight a district court assigns to various § 3553(a) factors,

and its ultimate assessment of the balance between them,” but must “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Smart, 518 F.3d at 808 (internal quotation

marks omitted). We do not require that the § 3553(a) factors “reach some

specific level of evidentiary weight,” and “although a district court must provide

reasoning sufficient to support the chosen variance, it need not necessarily

provide ‘extraordinary’ facts to justify any statutorily permissible sentencing

variance.” Id. at 807.

Here, the district court outlined the factors it considered in sentencing Mr.

Wagner, including the nature of the crime and his history and characteristics.

This included Mr. Wagner’s addiction problem as a reason for a variance and the

seriousness of the instant offense and his possession of firearms, including a

sawed-off shotgun and Bushmaster rifle, as a reason for no further reduction. In

so doing, it noted the high degree of risk involved in committing a burglary with a

firearm, including the potential for murder. In imposing the sentence, it is clear it

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listened to and rejected Mr. Wagner’s arguments in support of a larger variance. 4

With respect to Mr. Wagner’s argument he did not use the gun in

connection with the burglary, both the evidence in the record and his stipulation

in the plea agreement clearly establish he possessed the gun at the time of the

burglary. He also had possession of the key to the gun safe which was in his

vehicle when he drove to the pharmacy. His hypothetical scenarios as to whether

he removed the gun from the safe, left his vehicle in connection with the burglary,

or had time to return his gun to the safe, are speculative and insufficient to

warrant a reduction or otherwise provide the level of proof necessary for a

reduction. As the district court concluded, he had possession of the gun, as

shown by its proximity to him in the vehicle at the time of the burglary, and he

had access to it, as demonstrated by the key in the console of the vehicle.

Moreover, even without such evidence, Mr. Wagner stipulated he possessed

the gun in connection with the burglary, and, after raising the issue at the

sentencing hearing, he essentially withdrew the issue before the district court

4
“The sentencing court ... is not required to consider individually each
factor listed in § 3553(a), nor is it required to recite any magic words to show us
that it fulfilled its responsibility to be mindful of the factors that Congress has
instructed it to consider before issuing a sentence.” United States v. Cordova,
461 F.3d 1184, 1189 (10th Cir. 2006) (internal quotation marks omitted). Instead,
the district court must “state in open court the reasons for its imposition of the
particular sentence,” 18 U.S.C. § 3553(c), and satisfy us, as it has here, that it
“has considered the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007).

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could rule on it. His attempt to now request a further variance on the same issue

is akin to a waiver and an “invited error.” Waiver is the “intentional

relinquishment or abandonment of a known right,” which occurred when Mr.

Wagner withdrew his objection based on his prior stipulation. See United States

v. Carrasco-Salazar, 494 F.3d 1270, 1273 (10th Cir. 2007) (internal quotation

marks omitted). An invited error “prevents a party from inducing action by a

court and later seeking reversal on the ground that the requested action was in

error.” United States v. Lopez-Medina, 596 F.3d 716, 733 n.10 (10 th Cir. 2010)

(internal quotation marks omitted). Here, Mr. Wagner challenges the district

court’s inaction in failing to give him a downward variance based on the very

issue he previously withdrew before it could make a ruling. Our prior cases make

it clear that this kind of waiver bars a defendant from appealing an invited error.

See Carrasco-Salazar, 494 F.3d at 1273. In addition, we have held that once a

defendant’s guilty plea is entered and accepted by the court, he is bound by the

plea agreement, subject only to provisions regarding its withdrawal. See United

States v. Novosel, 481 F.3d 1288, 1293 n.3 (10th Cir. 2007). Thus, Mr. Wagner is

bound by his stipulation that he possessed the gun in connection with the burglary

and there was no reason for the district court to grant a further variance in

conjunction with that stipulation.

As to Mr. Wagner’s other claim concerning his addictions, the district court

had mitigating information on his addiction and considered his argument his

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addiction to drugs drove him to commit this and his prior crimes; none of his

prior crimes were violent; and he is a different person when sober. It clearly

relied on such information when it reduced his sentence. However, it is evident it

also determined a reduction of only one level was warranted when also

considering the other § 3553(a) factors, including the seriousness of the instant

offense, which included possession of a gun in the commission of a burglary

where an individual occupied the building he attempted to burglarize. As

previously noted, we may not examine the weight a district court assigns to the

various § 3553(a) factors or its ultimate assessment of the balance between them.

Instead, we give due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance. Here, its rationale is

sufficiently compelling to support the degree of the variance, given it has

satisfied us it considered the parties’ arguments and the § 3553(a) sentencing

factors and had a reasoned basis for the variant sentence given. For these

reasons, Mr. Wagner has not demonstrated his below-Guidelines sentence is

substantively unreasonable for the purpose of warranting reversal on appeal.

III. Conclusion

Accordingly, we AFFIRM Mr. Wagner’s 69-month term of imprisonment.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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