FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-6045
v. (D.C. No. 5:18-CR-00149-F-1)
(W.D. Oklahoma)
TYRONE VANKINTH HOLLAND, a/k/a
Tyrone Vankeith Holland,
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before McHUGH, KELLY, and MORITZ, Circuit Judges.
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Tyrone Vankinth Holland pleaded guilty to one count of being a felon in
possession of a firearm. The district court considered the sentencing factors under 18
U.S.C. § 3553(a), departed from the guideline range of 70–87 months, and sentenced
Mr. Holland to 120 months’ imprisonment. Mr. Holland now appeals the substantive
reasonableness of his sentence, arguing that the district court failed to adequately
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
consider his personal history and background. Exercising our jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
I. BACKGROUND
Mr. Holland was convicted of robbery with a dangerous weapon in the
Oklahoma County District Court in 2009. He was discharged from prison in January
2017.
On April 15, 2017, Andrea Fields called the police to report an assault with a
deadly weapon. Ms. Fields and her friend, Mr. Holland’s girlfriend, had been arguing
with each other about the girlfriend inviting Mr. Holland to Ms. Fields’s house.
While they were arguing, Mr. Holland pulled out a firearm and put it to his
girlfriend’s head. As Ms. Fields and the girlfriend left the house, Mr. Holland fired
the firearm in their direction. Later, Mr. Holland called Ms. Fields on her friend’s
phone, threatening to “shoot up” Ms. Fields’s house the next day. ROA, Vol. II at 6.
When the police arrived, they recovered two 9mm shell casings from Ms. Fields’s
front yard.
On May 30, 2017, Courtney Coleman called the police to report an assault
with a deadly weapon. Ms. Coleman had been staying at Stefanie Marie Johnson’s
house for two days. Mr. Holland was also present at the house. Ms. Coleman and
Mr. Holland got into an argument, and Mr. Holland told Ms. Coleman to leave.
Ms. Johnson, pregnant with Mr. Holland’s child, tried to intervene. Mr. Holland then
grabbed Ms. Coleman’s and Ms. Johnson’s cell phones, walked down the hallway,
and returned with a firearm. Mr. Holland racked the slide and pointed the weapon at
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Ms. Coleman, telling her to call a friend who had been there earlier. Mr. Holland
threatened to beat Ms. Coleman if her friend did not come, and he further stated he
had seventeen bullets that he intended to use to kill the friend. The argument
continued outside, where Mr. Holland pointed the firearm at Ms. Coleman’s seven-
year-old son and said, “I’ll kill every last one of you.” ROA, Vol. II at 6. According
to Ms. Coleman, Mr. Holland racked the slide several times but she was uncertain
whether the firearm was loaded.
On June 12, 2017, Brandi Simpkins, also pregnant with Mr. Holland’s child,
called the police to report that her semi-automatic pistol had been stolen from her
apartment. Mr. Holland had been living with Ms. Simpkins until she had asked him
to leave. After Mr. Holland moved out, Ms. Simpkins discovered her firearm was
missing. The police later discovered that Ms. Johnson and Mr. Holland had pawned
Ms. Simpkins’s pistol. The police recovered the pistol and confirmed that it had fired
the two shell casings found in Ms. Fields’s front yard in April of 2017.
On April 26, 2018, the police responded to a call that three rounds had been
fired into the air from a residence driveway. The police learned that Mr. Holland had
fired the shots. The caller also reported ongoing problems with Mr. Holland and her
fear for her and her children’s safety.
On May 20, 2018, Ms. Simpkins reported that Mr. Holland had stopped by her
home to see his son. Ms. Simpkins refused to let Mr. Holland see the child, so
Mr. Holland left. He later returned in an SUV and called Ms. Simpkins numerous
times. As Mr. Holland began to leave, Ms. Simpkins heard gun shots. The police
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found five .45 caliber shell casings at the scene. The police later located the SUV,
detained Mr. Holland in a traffic stop, and found him in possession of a .40 caliber
pistol.
On June 5, 2018, Mr. Holland was charged with two counts of knowingly
possessing a firearm after conviction of a felony in violation of 18 U.S.C.
§ 922(g)(1). Count One charged Mr. Holland with possessing a firearm on or about
April 15, 2017. Count Two charged Mr. Holland with possessing a firearm on or
about May 30, 2017. Mr. Holland pleaded guilty to Count One. The United States
Probation Office prepared a Presentence Investigation Report (“PSR”) in which it
calculated an advisory sentencing guideline of 70–87 months based on a total offense
level of 25 and Mr. Holland’s criminal history category of III. The Probation Office
also suggested that the court consider an upward departure or upward variance based
on Mr. Holland’s under-represented criminal history and the § 3553(a) factors.
The PSR and Mr. Holland’s sentencing memorandum detailed his difficult and
traumatic childhood. Raised by a single working mother, Mr. Holland was often left
with his older siblings, who brought others to their home and exposed Mr. Holland to
drugs and alcohol at an early age. Mr. Holland began using drugs and alcohol around
age ten or eleven. Gang violence was commonplace in Mr. Holland’s neighborhood.
Mr. Holland recalled fleeing from drive-by shootings and stumbling upon dead
bodies in fields as a child. Mr. Holland was incarcerated as a young adult from 2008
to 2017 for robbery with a dangerous weapon.
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In his sentencing memorandum, Mr. Holland acknowledged the seriousness of
his crimes but argued that a sentence within the advisory guideline would be
appropriate, as opposed to an upward departure or variance, because people of his
age are less likely to re-offend. Mr. Holland also submitted two character letters for
the court to consider.
After considering the § 3553(a) factors, the district court determined an
upward variance was warranted and sentenced Mr. Holland to the statutory maximum
of 120 months. The court cited the need for incapacitation as the most prominent
§ 3553(a) factor in Mr. Holland’s case. Most striking to the court was Mr. Holland’s
propensity to focus his violent and dangerous conduct on those weaker and more
vulnerable than him. When Mr. Holland’s counsel asked the court to elaborate on the
court’s consideration of Mr. Holland’s history and characteristics under § 3553(a)(1),
the court pointed to Mr. Holland’s quick reversion to violent and dangerous conduct
following his release from prison and his tendency to focus that conduct on
individuals who are weak and vulnerable as aggravating factors that differentiate him
from other generally violent defendants. Ultimately, the court determined that the
upward variance was sufficient but not greater than necessary to achieve the statutory
objectives of sentencing.
II. STANDARD OF REVIEW
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Chavez,
723 F.3d 1226, 1233 (10th Cir. 2013). We “will reverse only if the sentence imposed
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was arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.
DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (internal quotation marks omitted). In
other words, “we will reverse a determination only if the court exceeded the bounds
of permissible choice, given the facts and the applicable law in the case at hand.” Id.
(quotation marks omitted). Yet, “we uphold even substantial variances when the
district court properly weighs the § 3553(a) factors and offers valid reasons for the
chosen sentence.” United States v. Barnes, 890 F.3d 910, 916 (10th Cir. 2018). “A
district court properly engages in this inquiry when it bases its decision on specific,
articulable facts supporting the variance and does not employ an impermissible
methodology or rely on facts that would make the decision out of bounds.” Id.
Due to the district court’s superior position to find facts, we “give due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Gall, 552 U.S. at 51. The keystone of our analysis is “the
adequacy of the court’s consideration and explanation of the § 3553(a) factors.”
Barnes, 890 F.3d at 916. “We look to the record to determine whether the district
court satisfactorily engaged and examined the factors in a holistic fashion.” Id. “We
do not reweigh the sentencing factors but instead ask whether the sentence fell within
the range of rationally available choices that facts and the law at issue can fairly
support.” United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019) (internal
quotation marks omitted).
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III. ANALYSIS
On appeal, Mr. Holland contends the district court failed to adequately
consider his personal history and background, especially his difficult childhood,
when the court varied from the calculated guideline range and sentenced Mr. Holland
to 120 months imprisonment. We find no abuse of discretion. The district court not
only considered Mr. Holland’s personal history and background but also based the
variant sentence on specific, articulable facts.
To begin, the record indicates that the district court considered Mr. Holland’s
difficult childhood. At sentencing, the district court specifically stated it had
considered the sentencing memorandum and attached letters, which outlined
Mr. Holland’s difficult childhood and background. Mr. Holland’s counsel also
summarized Mr. Holland’s difficult childhood before the court during the sentencing
hearing.
Admittedly, the court made no specific mention of Mr. Holland’s childhood in
its analysis of the § 3553(a) factors. Rather, in its discussion of Mr. Holland’s history
and characteristics, the court focused on the defendant’s record of violent crime,
beginning more than ten years prior, and continuing upon his release from prison.
When asked to elaborate on Mr. Holland’s history and characteristics, the court noted
Mr. Holland’s 2008 conviction for robbery with a dangerous weapon, quick reversion
to violence upon his release from prison, and tendency to direct his violence toward
the weak and vulnerable as particularly persuasive. Although the district court did not
expressly address the impact of Mr. Holland’s childhood in its analysis, it
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acknowledged its review of this evidence and listened to defense counsel’s related
argument.
Under these circumstances, we decline to reweigh this factor. The district court
satisfactorily engaged in a holistic review of the § 3553(a) factors and based its
decision to vary upward on specific articulable facts. See Barnes, 890 F.3d at 916. In
particular, the district court identified Mr. Holland’s involvement in numerous
incidents of gun violence against women—some of whom were pregnant—and
children. The court found that prevention of future incidents through incapacitation
strongly supported the upward variance. The court did not abuse its broad discretion
in finding that the § 3553(a) factors, as a whole, justify a 120-month sentence.
IV. CONCLUSION
We accordingly uphold the sentence and AFFIRM the district court’s
judgment.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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