FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 18, 2017
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6314
(D.C. No. 5:11-CR-00341-HE-1)
MICHAEL SHAWN RICHARDSON, (W.D. Okla.)
a/k/a Irish Mike,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
In 2011, Defendant Michael Richardson was charged with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States notified
Defendant that it intended to seek an enhanced penalty under the Armed Career Criminal
Act (ACCA) based on two prior convictions for second-degree burglary and one for
aggravated eluding. Defendant pled guilty and did not object to the ACCA enhancement.
*
Neither party has requested oral argument. After examining the briefs and
appellate record, this panel agrees 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. 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not binding precedent, except under the doctrines of law of the case, res judicata, and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 district court sentenced him to the mandatory minimum sentence of 180 months’
imprisonment.
About four years later, Defendant filed a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 based on Johnson v. United States, 135 S. Ct. 2551
(2015). In response, the government conceded that Defendant’s conviction for
aggravated eluding no longer qualified as a predicate ACCA offense, and that he was
entitled to resentencing. Based on the current Sentencing Guidelines, Defendant’s
revised advisory sentencing range was thirty-three to forty-one months’ imprisonment.
However, the probation office’s revised presentence report outlined several factors that
would warrant an upward departure or variance, including the fact that his criminal
history category—VI—substantially underrepresented the seriousness of Defendant’s
criminal history and the likelihood that he would commit other crimes.
These factors notwithstanding, Defendant requested a downward departure or
variance. He argued he was “a changed and better man,” citing his efforts at
rehabilitation in prison, including the completion of educational programs, potential
employment opportunities upon release, and his “improved strong family ties.”
(Appellant’s Opening Br. at 7, 6.) Defendant pointed out that, because he had already
served 59 months, a within- or below-Guidelines sentence would, in effect, amount to
“time served,” and that such a sentence would result in his transfer to the Oklahoma
Department of Corrections to serve two state sentences of ten and twelve years’
imprisonment, which were running concurrently with each other and with the federal
sentence.
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The district court credited Defendant for taking advantage of “educational
opportunities” while incarcerated, and it acknowledged that he had made an “effort to
prepare himself for a life not involving criminal activity.” (R. Vol. I at 115.) But, it
agreed with the probation office that the advisory Guideline range “understate[d] the
significance of the defendant’s criminal history,” i.e., “16 or 17 criminal convictions
spanning virtually his whole life.” (Id. at 114, 113.) The court highlighted Defendant’s
“fairly significant history of auto theft or related theft-type convictions,” including two
convictions that occurred after his original sentencing. (Id. at 114.) Consequently, after
considering the statutory sentencing factors, it varied upward and sentenced Defendant to
seventy-four months’ imprisonment. Defendant timely appealed, arguing that his
amended sentence is substantively unreasonable.
We review the substantive reasonableness of a sentence for abuse of discretion.
United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010). “A district court abuses its
discretion when it renders a judgment that is arbitrary, capricious, whimsical, or
manifestly unreasonable.” Id. “[I]n many cases there will be a range of possible
outcomes the facts and law at issue can fairly support; rather than pick and choose among
them ourselves, we will defer to the district court’s judgment so long as it falls within the
realm of these rationally available choices.” United States v. McComb, 519 F.3d 1049,
1053 (10th Cir. 2007).
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Defendant has not demonstrated that the district court abused its discretion. The
court properly took into account all of the § 3553(a) factors and gave due weight to
Defendant’s extensive criminal history. When, as here, “the balance struck by the district
court among the factors set out in § 3553(a) is not arbitrary, capricious, or manifestly
unreasonable, we must defer to that decision even if we would not have struck the same
balance in the first instance.” United States v. Sells, 541 F.3d 1227, 1239 (10th Cir.
2008). “[I]t is not the job of an appellate court to review de novo the balance struck by a
district court among the factors set out in § 3553(a).” Id.
Accordingly, we AFFIRM.
Entered for the Court
Monroe G. McKay
Circuit Judge
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