United States v. Bartley

FILED
United States Court of Appeals
Tenth Circuit

July 28, 2015
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 14-1300
GARY DANIEL BARTLEY, (D.C. No. 1:93-CR-00061-PAB-1)
(D. Colo.)
Defendant-Appellant.

_______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 14-1305
GARY BARTLEY, (D.C. No. 1:13-CR-00438-PAB-1
(D. Colo.)
Defendant-Appellant,

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, BALDOCK and EBEL, Circuit Judges.

Defendant Gary Bartley pled guilty to one count of bank robbery and

admitted to violating the terms of his supervised release by committing the

*
This order and judgment is not binding precedent, except under the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.
robbery. He appeals his sentences in both cases, which were imposed at the same

hearing. Bartley challenges the procedural reasonableness of his bank robbery

sentence, arguing the district court erred in applying a career offender

enhancement. Bartley also challenges the substantive reasonableness of his

supervised release sentence on the grounds that the district court did not properly

consider his age in determining whether the sentence should be served

consecutively to or concurrently with his bank robbery sentence.

I

Factual background

On November 19, 1991, Gary Bartley entered a bank in Galveston, Texas,

and committed an armed robbery. Two weeks later, on December 4, 1991,

Bartley entered a bank in Denver, Colorado, and again committed an armed

robbery. For the Texas robbery, Bartley was charged with aggravated robbery in

Texas state court and pled guilty on January 28, 1993. He was sentenced that

same day to a term of 25 years in state prison. In Colorado, Bartley was indicted

in federal court on two counts of bank robbery 1 under 18 U.S.C. §§ 2113(a) and

2113(d) and one count of using a firearm in the commission of a violent crime

under 18 U.S.C. § 924(c)(1). He pled guilty to one count of bank robbery and one

count of using a firearm to commit a violent crime. On January 20, 1994, Bartley

1
Bartley also robbed a bank in Denver on November 25, 1991, but that
count was dismissed as a part of his plea agreement.

2
was sentenced on the federal convictions to 248 months’ imprisonment, to be

followed by five years of supervised release. 2

The relationship between the service of Bartley’s state and federal

sentences becomes significant in determining whether Bartley qualified as a

career offender when he was sentenced in 2014 after his most recent bank robbery

conviction. Records regarding the Texas conviction and sentencing are sparse.

However, the federal presentence report from Bartley’s 1993 conviction states

that after being sentenced in Texas, Bartley was returned to Colorado state prison

to serve time for an unrelated offense. Other records indicate that he was

eventually moved to federal prison due to the December 4, 1991, Colorado bank

robbery offense discussed above. Bartley entered federal prison in April of 1995

and remained there until the completion of his federal sentence. While Bartley

was still in federal custody, the Texas Department of Criminal Justice released

Bartley on parole on August 31, 2005, and issued a “release to detainer” to

release Bartley into federal custody. Bartley signed the Texas parole documents

in November 2005, presumably while still residing in federal prison. From the

record presented, it appears that while Bartley was in federal custody Texas did

not file a detainer with federal authorities.

2
Bartley was sentenced to 188 months’ imprisonment on the robbery count
and 60 months on the firearm count, to be served consecutively. He was sentenced
to five years of supervised release on the robbery count and three years
supervised release on the firearm count, to be served concurrently.

3
 In October 2013, two months after being released from federal prison to

serve a term of supervised release, Bartley again robbed a bank in Denver. The

subsequent 2014 sentencing for this bank robbery and for the related violation of

supervised release are at issue in this appeal.

Procedural history

Bartley was indicted on one count of bank robbery under 18 U.S.C.

§ 2113(a) on October 21, 2013. He pled guilty on March 17, 2014. Bartley’s

probation officer alleged that the bank robbery was also a violation of the

conditions of Bartley’s supervised release and sought revocation of Bartley’s

supervised release. Bartley’s sentencing for bank robbery and his supervised

release violation were addressed at the same hearing.

Bartley filed an objection to the presentence report for his robbery

conviction, arguing that he should not be characterized as a career offender. The

presentence report stated that Bartley met the criteria for the career offender

enhancement under § 4B1.1 of the United States Sentencing Guidelines because

Bartley was (a) at least 18 years old at the time of the instant offense; (b) the

offense was a crime of violence; and (c) Bartley had at least two prior felony

convictions for crimes of violence (the Texas and federal bank robbery

convictions) for which he was serving a sentence for at least part of the fifteen

years prior to his 2013 bank robbery. Bartley argued that his Texas conviction

should not receive criminal history points or count as a predicate offense for the

4
career offender enhancement because the government could not prove that the

Texas conviction “resulted in” Bartley’s imprisonment within fifteen years of the

instant offense as required by U.S.S.G. § 4A1.2(e). Bartley contended that the

phrase “resulted in” in U.S.S.G. § 4A1.2(e) required a conviction to be a but-for

cause of imprisonment, and as Texas did not lodge a detainer against Bartley

while he was in federal custody, there was no evidence that Bartley was

incarcerated as a result of the Texas conviction during the fifteen years prior to

the 2013 robbery. 3

Bartley also filed a motion for a variant sentence in his bank robbery case.

Bartley argued that a variant sentence was warranted because (1) the bank robbery

did not involve a weapon or threats of harm, (2) he took immediate responsibility

for the crime, and (3) he otherwise had difficulty adjusting to life outside of

prison after being institutionalized for much of his childhood and adult life. He

also argued that the career offender enhancements were unduly harsh and

frequently have been disregarded by other courts.

The government opposed Bartley’s objections to the PSR. It argued that

the State of Texas’s decision to parole Bartley in 2005 indicated that the state

believed that Bartley was serving his state sentence for aggravated robbery

concurrently with his federal sentence. The government argued that the fact that

3
Bartley also argued in his objections to the PSR that the Texas conviction
was not a crime of violence, but he has abandoned that argument on appeal.

5
Texas did not file a detainer against Bartley while he was serving his federal

sentence was not determinative of whether Bartley was also serving his Texas

sentence.

The district court heard oral arguments on Bartley’s objections to the PSR

at the consolidated hearing. Bartley argued that the failure of Texas authorities to

file a detainer against Bartley meant that if his federal sentence had been vacated,

he could have been set free and not returned to Texas authorities. Bartley argued

that this lack of control by Texas meant that he was not incarcerated “as a result”

of his Texas conviction. The district court disagreed, stating that “it seems like

Texas knows where he is, Texas says that now he can be paroled, and ‘paroled’

seems to presume the service of a sentence.” ROA (14-1305), Vol. V at 9. Thus,

despite acknowledging that it is difficult to tell “exactly . . . what was going on in

between the various state and federal charges back in the early ‘90s,” the district

court concluded that prior to his parole, Bartley was serving both his state and

federal sentences while imprisoned by federal authorities and that he was

imprisoned as a result of both convictions. Id. at 9-10, 21-23.

The district court then denied Bartley’s motion for a variant sentence and

sentenced Bartley to 151 months’ imprisonment on the robbery conviction, the

minimum sentence recommended under the Guidelines. The district court

concluded that a significantly shorter sentence was not warranted because Bartley

was the “poster child for the career offender guideline” because he routinely

6
committed bank robberies upon release from prison. Id. at 48. The court noted

Bartley’s age at the time of the instant robbery (55) and stated that Bartley was

not “ratcheting down [his] criminal behavior” as he aged and that the court “was

not convinced that [Bartley] won’t have that same propensity when he’s even

older.” Id. at 51. Nonetheless, the court concluded that Bartley’s age counseled

against its imprisoning Bartley “for as long as possible.” Id. at 52.

The district court then took up revocation of Bartley’s supervised release

and sentencing for that violation. Bartley argued that any sentence for the

violation should be concurrent to the bank robbery sentence, citing his likely age

after service of his 151-month sentence. The district court stated that it was

taking the factors listed in 18 U.S.C. § 3553(a) into account, again noted

Bartley’s age, but nonetheless concluded that “[i]t’s hard to imagine a more

outrageous violation of the terms and conditions of supervised release than to

immediately go out and commit the exact same crime.” Id. at 63. The court

concluded it was “completely appropriate” to sentence Bartley to a consecutive

36-month term for his violation of supervised release. Id.

II

Bartley first challenges the procedural reasonableness of the district court’s

application of a career offender enhancement to his robbery sentence.

A

We review procedural reasonableness challenges under an abuse-of-

7
discretion standard, “under which we review de novo the district court’s legal

conclusions regarding the guidelines and review its factual findings for clear

error.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).

B

The Sentencing Guidelines provide for sentencing enhancements if a

defendant is a career offender. The Guidelines define a career offender as:

[a] defendant is a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.

U.S.S.G. § 4B1.1(a). The career criminal enhancement typically increases a

defendant’s offense level and the resulting recommended sentence range under the

Guidelines. U.S.S.G. § 4B1.1(b). In this case, when this enhancement is applied

Bartley’s recommended sentence range increased from 37–46 months to 151–188

months.

Both parties agree on appeal that the first two parts of § 4B1.1(a) are

satisfied in this case. However, Bartley challenges whether he has two qualifying

prior felony convictions for purposes of § 4B1.1(a)(3). That section defines “two

prior felony convictions” by reference to § 4A1.1 and necessarily § 4A1.2, as the

two sections “must be read together” pursuant to the Guidelines’s comments.

Under § 4A1.2(e)(1), a conviction only “counts” under the Sentencing Guidelines

8
if it involves “[a]ny prior sentence of imprisonment exceeding one year and one

month that was imposed within fifteen years of the defendant’s commencement of

the instant offense” or “any prior sentence of imprisonment exceeding one year

and one month, whenever imposed, that resulted in the defendant being

incarcerated during any part of such fifteen-year period.” U.S.S.G. § 4A1.2(e)(1)

(emphasis added). Both convictions at issue in this case—Bartley’s 1993 Texas

conviction and 1994 federal conviction—can only fall under the second prong of

that analysis, as both sentences were indisputably imposed more than fifteen years

prior to the instant offense.

Bartley argues that the phrase “resulted in” requires that a conviction be the

“but for” cause of a defendant’s incarceration and that Bartley’s Texas conviction

would not qualify as a “but for” cause. Bartley bases his argument on the

Supreme Court’s analysis of similar language in Burrage v. United States, 134

S.Ct. 881, 886-87 (2014). In Burrage, the Supreme Court analyzed the criminal

statute that mandates increased sentences for drug distributors when a death

“results from” the use of the distributed drug. 134 S. Ct. 881, 887 (2014) (citing

21 U.S.C. § 841(b)(1)(A)-(C)). The Court concluded that the language “results

from” requires that the drug in question be a “but for” cause of the victim’s death.

Id. at 887-88. The Court noted that this was the “ordinary meaning” of the phrase

and that other phrases, including “results in,” had been interpreted the same way

in both civil and criminal statutes. Id. at 888-89.

9
 Although Bartley is correct that the Supreme Court appeared to speak in

broad terms in Burrage, a careful reading of the case indicates that the Court’s

statements come with several caveats. The Court stated that the meaning of

language such as “results from” or “results in” requiring but-for causation was

“one of the traditional background principles against which Congress

legislate[s],” but noted that there may be “textual or contextual indication” that

strict but-for causation was not intended. 134 S. Ct. at 888-89 (internal

punctuation omitted). The Court also pointed out that there are common-law

exceptions to but-for causality—including that “multiple sufficient causes [may]

independently, but concurrently, produce a result.” Id. at 890. Moreover, the

Court indicated that legal causation cannot be a matter of guesswork when

contained in a criminal statute which requires its proof beyond a reasonable

doubt. Id. at 892 (“Uncertainty of that kind cannot be squared with the beyond-a-

reasonable-doubt standard applicable in criminal trials or with the need to express

criminal laws in terms ordinary persons can comprehend.”).

By contrast, this case involves the Sentencing Guidelines, which are

typically applied by probation officers and the sentencing judge after a conviction

has already been achieved. The Guidelines themselves are also rich with text and

context that indicate how criminal history points should be calculated and how the

career offender enhancement should be applied. See U.S.S.G. §§ 4B1.1, 4B1.2,

4A1.1, 4A1.2. In particular, the Guidelines describe when prior sentences must

10
be counted separately and when they may be consolidated in calculating a

defendant’s prior criminal history, with separate convictions also counting for the

career offender enhancement. Section 4A1.2(a) of the Sentencing Guidelines

states that “[p]rior sentences always are counted separately if the sentences were

imposed for offenses that were separated by an intervening arrest” and “[i]f there

is no intervening arrest, prior sentences are counted separately unless (A) the

sentences resulted from offenses contained in the same charging instrument; or

(B) the sentences were imposed on the same day.” Whether the sentences are

served concurrently is not a factor in calculating whether the sentences are to be

consolidated for criminal history purposes. See United States v. Jones, 898 F.2d

1461, 1463 (10th Cir. 1990). Nor, as the district noted, are concurrent sentences

unusual. Concurrent sentences in unrelated cases imposed by a state and a federal

court are a common occurrence and not a special exception with special

procedural requirements as Bartley seems to argue. In short, the Sentencing

Guidelines provide a detailed process for calculating a defendant’s criminal

history and total number of convictions for career offender enhancement and there

is no indication its drafters thought that a particular conviction must be the sole

but-for cause of a defendant’s imprisonment before it can be counted as a prior

conviction.

By all appearances, Bartley’s case fits squarely into the Guidelines’

requirements for counting sentences separately because his Texas and federal

11
offenses appear to have been separated by an intervening arrest, but regardless,

the offenses were not contained in the same charging instrument and the sentences

were not imposed on the same day. This case is somewhat challenging because

the record is deficient as to how these sentences were ordered to be served—we

know that Bartley was convicted and sentenced in Texas first, but then was sent

to federal prison after he was sentenced on the federal bank robbery charges. It is

fair to infer from that sequence of events, and the fact that Bartley remained in

federal prison for nearly 20 years, that Texas voluntarily waived its primary

custody of Bartley to federal authorities. See Hall v. Looney, 256 F.2d 59, 60

(10th Cir. 1958); Wall v. Hudspeth, 108 F.2d 865, 867 (10th Cir. 1940) (“Public

officials are presumed to do their duty, not to act in an unauthorized manner. . . .

It must be presumed that the state voluntarily surrendered him in some manner.”).

See also Weekes v. Fleming, 301 F.3d 1175, 1181 (10th Cir. 2002) (concluding

from indirect evidence in the record of state and federal prison officials’ actions

that “Idaho indeed relinquished primary custody of Mr. Weekes to the United

States”).

We do not have explicit information in the record that Texas authorities

agreed or ordered that Bartley would serve his state sentence concurrently with

his federal sentence, but the parole paperwork is strong evidence that Texas did

just that. Bartley argues that the absence of a detainer means that he could have

been released from federal prison without the knowledge or hindrance of Texas

12
authorities, and that therefore his Texas conviction was not a but-for cause of his

imprisonment. However, Bartley’s argument would only be compelling if his

federal conviction were overturned and he was actually set free. In stark contrast

to this hypothetical is the fact that Texas knew where Bartley was from the time

of his federal sentencing to the time it released him on parole from his Texas

sentence. Under these facts, we can assume that if Bartley had been released

from federal prison prior to 2005, the state of Texas would have exercised its

continued jurisdiction over Bartley to ensure that he completed his state sentence.

See Hernandez v. U.S. Atty. Gen., 689 F.2d 915, 919 (10th Cir. 1982) (“The law

of comity is such that the two sovereigns may decide between themselves which

shall have custody of a convicted prisoner; however, the sovereign having prior

jurisdiction need not waive its right to custody.”).

In other cases, federal courts have concluded that the failure to file a

detainer does not mean that a sovereign has waived its jurisdiction over a

prisoner, at least not without evidence of gross negligence. See, e.g., Piper v.

Estelle, 485 F.2d 245, 246 (5th Cir. 1973) (“In cases based upon the principles of

[Shields v. Beto, 370 F.2d 1003 (5th Cir. 1963)] . . . the waiving state’s action

must be so affirmatively wrong or its inaction so grossly negligent that it would

be unequivocally inconsistent with ‘fundamental principles of liberty and justice’

to require a legal sentence to be served in the aftermath of such action or

inaction.”). In this case, Texas officials might have assumed that Bartley would

13
remain in federal custody past his Texas parole release date, or they may have

failed to file a detainer due to simple negligence. Regardless, the failure to file a

detainer did not jeopardize the state’s interests. The state clearly considered

Bartley imprisoned on both his state and federal convictions until it issued its

parole certificate in 2005.

In short, there is no indication in our caselaw that a detainer was required

for Texas to maintain its secondary jurisdiction over Bartley, and there is no

indication that Texas ever lost its right to custody. It strains credulity to argue

that Bartley’s imprisonment was not the result of both his state and federal

convictions simply because Texas did not file a detainer against Bartley. Were

Bartley nearing the completion of his federal sentence, Texas could have filed its

detainer immediately prior to his release and regained physical custody of

Bartley. We conclude on the record presented that Bartley served his state and

federal sentences for bank robbery concurrently, and both “resulted in” his

imprisonment within the past 15 years. Thus, we affirm the district court’s

application of the career offender enhancement and Bartley’s resulting sentence.

III

Bartley next challenges the substantive reasonableness of the sentence

imposed after the revocation of his supervised release, arguing that the district

court abused its discretion when considering Bartley’s age at sentencing.

14
 A

We review “the substantive reasonableness of the sentence imposed under

an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007).

“Under a deferential abuse-of-discretion standard, we deem a sentence

unreasonable only if it is arbitrary, capricious, whimsical, or manifestly

unreasonable.” Gantt, 679 F.3d at 1249 (internal quotation marks omitted).

When reviewing substantive reasonableness, an appellate court should consider

“the totality of the circumstances, including the extent of any variance from the

Guidelines range” and may apply a presumption of reasonableness to sentences

within the Sentencing Guidelines. Gall, 552 U.S. at 51.

B

Under 18 U.S.C. § 3583(e)(3), a court may revoke a term of supervised

release and require the defendant to serve time in prison, subject to certain

statutory limits. Bartley argues on appeal that the sentence imposed following the

revocation of his supervised release was substantively unreasonable because the

district court did not appropriately consider Bartley’s age when released from his

bank robbery sentence. In particular, Bartley argues that the district court’s

balancing of the sentencing factors laid out in 18 U.S.C. § 3553(a) was

“manifestly unreasonable” because the court cited Bartley’s age as the main

reason for giving him a sentence at the bottom of the recommended range on the

robbery count, but then in seeming contradiction imposed a consecutive sentence

15
for his violation of the terms of his supervised release.

At the outset, it should be noted that the Guidelines policy statements

advise that “[a]ny term of imprisonment imposed upon the revocation of

probation or supervised release shall be ordered to be served consecutively to any

sentence of imprisonment that the defendant is serving, whether or not the

sentence of imprisonment being served resulted from the conduct that is the basis

of the revocation of probation or supervised release.” U.S.S.G. § 7B1.3(f).

Generally, however, “[i]n imposing a sentence following revocation of supervised

release, a district court is required to consider both Chapter 7’s policy statements,

as well as a number of the factors provided in 18 U.S.C. § 3553(a).” United

States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). An appellate court

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

and its ultimate assessment of the balance between them, as a legal conclusion to

be reviewed de novo” and instead must grant the district court significant

deference. United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (internal

quotation marks omitted). “[I]n deciding whether to vary [a defendant’s

sentence], pursuant to § 3553(a), . . . district courts have broad discretion to

consider individual characteristics like age.” United States v. Sells, 541 F.3d

1227, 1237-38 (10th Cir. 2008) (citing Gall, 552 U.S. 38, 57 (2007)). “That such

a ground for a variance is available certainly does not, however, mean it is

compelled.” Id.

16
 Bartley does not cite to any caselaw that states that a district court must

give the defendant’s age the same weight in two different but related sentencings.

Nor is such a case likely to exist, given that district courts consider the § 3553(a)

factors separately for each sentence; it is perfectly reasonable for the district court

to balance those factors differently in sentencing for two separate offenses, even

for the same defendant. It is even more reasonable that a court’s balancing of

factors would differ when imposing a sentence for violation of supervised release

when compared to imposing a sentence for a criminal conviction. Our precedent

and the Guidelines specifically require consideration of additional factors when

sentencing for violation of supervised release. See Cordova, 461 F.3d at 1188

(noting a district court must consider both Chapter 7 of the Guidelines and the

§ 3553(a) factors when revoking supervised release).

When sentencing Bartley on the robbery conviction, the district court gave

some weight to the fact that Bartley had moved away from using weapons or

explicit threats of violence and ultimately concluded that Bartley’s age justified a

sentence at the low end of the Guidelines range (although not a variant sentence

as requested). The district court noted that Bartley had again raised an age

argument in favor of a concurrent sentence for his revocation of supervised

release, but ultimately concluded that a consecutive sentence was warranted

because the violation of his supervised release was “outrageous” and involved

nearly the same conduct as his original offense. ROA (14-1305), Vol. V at 63.

17
Such an analysis—and the court’s conclusions on each sentence—is totally

logical.

Moreover, Bartley fails to compellingly argue that the district court

actually weighed Bartley’s age differently when imposing the two sentences. The

sentencings were completed at the same time, and it is difficult to believe that the

district court was not also contemplating the additional sentence it would impose

for Bartley’s violation of supervised release when it first imposed the robbery

sentence. The district court’s statements about Bartley’s age were also equivocal;

the court noted that Bartley was at a relatively advanced age when he committed

the instant offense and that there was no indication he would stop committing

bank robberies when released. 4 The court stated that Bartley’s age was the main

reason it chose not to impose the maximum possible sentence, but the court’s

leniency on the bank robbery sentence could have easily been influenced by the

fact that subsequent sentencing on the supervised release violation would follow.

In short, there is little or no support for the idea that the district court was

“manifestly unreasonable” in its consideration of Bartley’s age at his sentencings.

Thus, the district court did not abuse its discretion by imposing a consecutive

sentence for Bartley’s violation of the terms of his supervised release.

4
Similarly, in Sells, the court noted that a defendant’s commission of a
similar offense while on supervised release at age 59 “casts significant doubt on
Sells’s sub silentio assertion that a shorter sentence is sufficient to deter future
criminal acts on his part because he is unlikely to commit additional crimes due to
his age.” 541 F.3d at 1238 (10th Cir. 2008).

18
 IV

For the reasons set forth above, we AFFIRM Bartley’s sentences for bank

robbery and for violating the terms of his supervised release.

Entered for the Court

Mary Beck Briscoe
Chief Judge

19