FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 7, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-8036
(D.C. No. 2:18-CR-00148-NDF-1)
JACKSON BURLEY COOMBS, (D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and EID, Circuit Judges.
_________________________________
Jackson Coombs challenges the reasonableness of his sentence. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On the night of July 28, 2018, Coombs assaulted M.C. in a women’s restroom
in Yellowstone National Park. When M.C. entered the restroom, she noticed that
someone was in one of the stalls—a pair of black cowboy boots was visible beneath
the stall partition. The boots were facing the wall, not the door of the stall. Getting a
“weird feeling,” M.C. entered the stall farthest from the occupied stall. As M.C.
*
This order and judgment is not binding precedent, except under the doctrines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.
finished using the restroom, Coombs—who was wearing the cowboy boots—crossed
the restroom to M.C.’s stall, began pounding on the door, and battered it open.
Coombs had wrapped his face in toilet paper, and he held a can of bear spray
in one hand. He attacked M.C., spraying her in the face and eyes with the bear
repellent and punching her in the face and head. Coombs wore several large rings,
which worsened the blows. M.C. screamed for help as Coombs beat her to the floor
and straddled her. Attempting to escape, M.C. tried to squeeze under the wall of the
stall into the adjacent stall. Hearing her screams, M.C.’s boyfriend, W.L., entered the
women’s restroom and pulled Coombs off M.C. M.C. escaped the restroom while
W.L. and Coombs fought. Coombs bit W.L. in the chest and forearm, but W.L. was
ultimately able to wrestle Coombs to the floor. With the help of a passerby who
came to his assistance, W.L. kept Coombs pinned to the ground until law
enforcement arrived and placed him in handcuffs.
Coombs was charged and indicted for two counts of assault with a dangerous
weapon under 18 U.S.C. § 113(a)(3) and one count of assault resulting in serious
injury under 18 U.S.C. § 113(a)(6). He pled guilty to one count of assault with a
dangerous weapon and to the lesser-included offense of simple assault. Prior to
sentencing, the probation office issued a Presentence Investigation Report (“PSR”),
which was later revised after Coombs filed several objections. The revised PSR
described Coombs’ previous criminal history and history of drug abuse, particularly
of alcohol. Applying a two-level enhancement under the United States Sentencing
Guidelines (“U.S.S.G.”) § 2A2.2(b)(1) for more than minimal planning in the
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commission of the aggravated assault, the revised PSR recommended a term of
imprisonment of 70 to 87 months. Coombs objected to the enhancement, contending
that he was too intoxicated to more than minimally plan the crime. He submitted
medical testimony regarding his level of intoxication at the time he assaulted M.C.
and argued that the PSR overstated his criminal history. Based on these objections,
Coombs sought a sentence in the 33- to 41-month range.1
The district court agreed with the probation office that the correct guidelines
imprisonment range for Coombs’ sentence was 70 to 87 months. After considering
Coombs’ objections and hearing witness testimony, the court sentenced Coombs to
78 months’ imprisonment, followed by three years’ supervised release, and ordered
him to pay $2,199 in restitution for his victims’ injuries. On appeal, Coombs
challenges the court’s application of the more-than-minimal-planning enhancement to
his sentence, and he contends that his sentence is substantively unreasonable.
II
We review a district court’s sentencing decision for reasonableness.
“[R]easonableness review has two aspects: procedural and substantive.” United
States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019). “Review for procedural
reasonableness focuses on whether the district court committed any error in
calculating or explaining the sentence.” United States v. Friedman, 554 F.3d 1301,
1307 (10th Cir. 2009). Substantive reasonableness addresses “whether the length of
1
Coombs erroneously states in his opening brief that he sought a sentence in
the 31- to 41-month range. This discrepancy is immaterial to our analysis.
3
the sentence is reasonable given all the circumstances of the case in light of the
factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d
884, 895 (10th Cir. 2008) (quotation omitted). A sentence within the correctly
calculated guidelines range is presumed to be substantively reasonable. United States
v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
When reviewing a sentence for reasonableness, we apply “a deferential abuse
of discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.
2008). We review the district court’s underlying factual findings in support of a
sentencing decision for clear error and its legal determinations de novo. Kristl, 437
F.3d at 1054. We accept a district court’s factual findings “unless the record does not
support them or, after reviewing the record, we are left with the definite and firm
conviction that a mistake has been made.” United States v. Archuletta, 231 F.3d 682,
684 (10th Cir. 2000) (quotation omitted). We will not reverse a district court’s
sentencing decision unless it is “arbitrary, capricious, whimsical, or manifestly
unreasonable.” United States v. Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)
(quotation omitted).
A
Coombs argues the district court procedurally erred by applying the more-
than-minimal-planning enhancement to his sentence. Section 2A2.2(b)(1) of the
United States Sentencing Guidelines provides for a two-level enhancement if an
aggravated assault involved “more than minimal planning,” meaning it involved
“more planning than is typical for commission of the offense in a simple form” or
4
“significant affirmative steps were taken to conceal the offense.” U.S.S.G.
§ 2A2.2(b)(1) cmt. n.2 (2018). Actions such as “luring a victim to a specific
location” or “wearing a ski mask to prevent identification” constitute more than
minimal planning to commit an aggravated assault, but merely waiting to commit the
offense until no witnesses are present is not enough. Id.
Coombs argues that the district court erred as a matter of law in applying the
enhancement because his crime “was not complex, did not involve significant
affirmative steps [taken] to conceal the crime, and did not involve complicated
criminal activity considered to be more blameworthy and deserving of greater
punishment than the commission of the offense in a ‘simple’ form.” To support this
argument, he cites numerous Tenth Circuit cases involving fraud or theft schemes in
which we applied the enhancement. He asserts that these cases demonstrate that the
level of planning necessary to apply the more-than-minimal-planning enhancement is
higher than the level of planning typically present in aggravated assault cases.
Similarly, Coombs cites several Fifth Circuit cases in which the enhancement was
applied in the aggravated assault context, but he contends that the facts of these cases
exhibit significantly more planning than his assault of M.C. Finally, Coombs points
to statistical evidence that the more-than-minimal planning enhancement is seldom
applied in aggravated assault cases nationwide and has not been applied in this
circuit.
These arguments do not help Coombs. Section 2A2.2(b)(1) expressly provides
for the application of the enhancement to aggravated assault sentences. Thus, the
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Sentencing Commission has clearly approved its applicability in appropriate
aggravated assault cases. The mere fact that the more-than-minimal-planning
enhancement is applied more frequently to other crimes is legally irrelevant—it does
not render impermissible the application of the enhancement when the requirements
of § 2A2.2(b)(1) are met.
Nevertheless, Coombs implies that the more-than-minimal-planning
enhancement is inapplicable in aggravated assault cases because district courts did
not apply the enhancement in several such cases in Wyoming. See United States v.
Duran, 127 F.3d 911 (10th Cir. 1997); United States v. Montoya, 85 F.3d 641 (10th
Cir. 1996); United States v. Jenkins, 17 F. App’x 769 (10th Cir. 2001) (unpublished);
United States v. Yellowbear, 382 F. App’x 715 (10th Cir. 2010) (unpublished). But
none of these cases so much as mention the enhancement. Similarly, the Fifth Circuit
cases on which Coombs relies do little to support his contention that the more-than-
minimal-planning enhancement does not apply, as a matter of law, to his assault of
M.C. These cases merely identify particular facts the reviewing court held sufficient,
but not necessary, to support application of the enhancement; they do not purport to
identify a minimum level of planning required under § 2A2.2(b)(1). Accordingly,
Coombs’ reliance on these various cases is unavailing. See Auraria Student Hous. at
the Regency, LLC v. Campus Vill. Apartments, LLC, 843 F.3d 1225, 1242 (10th Cir.
2016) (questions “neither brought to the attention of the court nor ruled upon[] are
not to be considered as having been so decided as to constitute precedents”
(quotation omitted)); Merrifield v. Bd. of Cty. Comm’rs for Cty. of Santa Fe, 654
6
F.3d 1073, 1084 (10th Cir. 2011) (“It is elementary that an opinion is not binding
precedent on an issue it did not address.”).
Additionally, Coombs argues that the district court legally erred in applying
the enhancement to his sentence because the enhancement applies only to complex
criminal activity. Citing Archuletta, Coombs asserts the more-than-minimal-planning
enhancement is designed to target criminals who engage in “complicated criminal
activity because their actions are considered more blameworthy and deserving of
greater punishment than a perpetrator of a simpler version of the crime.” 231 F.3d at
686. Coombs latches onto the word “complicated” and asserts that his crimes were
“uncomplicated assault[s].” But “complicated” is a relative term dependent on
comparison between the underlying criminal conduct for which the defendant is
being sentenced and the simplest form of the offense. See, e.g., United States v.
Moore, 225 F.3d 637, 642 (6th Cir. 2000) (“It is not necessary that a crime suggests
planning in its most deliberative form; rather, it is sufficient if the evidence suggests
merely that the crime was not committed in its simplest form.”); United States v.
Bean, 18 F.3d 1367, 1370 (7th Cir. 1994), abrogated on other grounds by United
States v. Vizcarra, 668 F.3d 516, 523 (7th Cir. 2012) (“The ‘offense’ is the crime of
which the defendant has been convicted, not of the particular way in which he
committed it.”). Archuletta involved bank fraud, which “is committed by one who
knowingly executes, or attempts to execute, a scheme or artifice (1) to defraud a
financial institution[] or (2) to obtain any of the moneys, funds or other property
under the custody or control of a financial institution by means of false or fraudulent
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pretenses.” 231 F.3d at 684 (quoting 18 U.S.C. § 1344). By contrast, the
government contends—and Coombs does not dispute—that the simple form of his
crime required only that on a particular date, at a particular location, he knowingly
assaulted another individual with a dangerous weapon with the intent to do bodily
harm. See § 113(a)(3). Thus, the simple form of bank fraud is much more complex
than the simple form of aggravated assault with a deadly weapon. And, as the
Sentencing Guidelines indicate, merely donning a ski mask in an attempt to conceal
one’s identity constitutes more than minimal planning to commit an aggravated
assault. § 2A2.2(b)(1) cmt. n.2. Accordingly, the district court did not legally err in
applying the more-than-minimal-planning enhancement to Coombs’ assault simply
because aggravated assault is not “complicated criminal activity.” What matters is
whether Coombs more than minimally planned his assault of M.C, not whether his
offense was “complicated.”
Finally, with respect to the district court’s factual findings, Coombs challenges
several inferences the court drew from undisputed facts in the record. For example, it
is undisputed that Coombs was in a stall in the women’s restroom when M.C. entered
the restroom, but Coombs challenges the district court’s inference that he was
waiting in the stall and knew he was in the women’s restroom. Similarly, Coombs
challenges the district court’s inference that because he wrapped his face in toilet
8
paper, he attempted to conceal his identity.2 According to Coombs, his attack on
M.C. was spontaneous and did not involve significant affirmative steps to conceal the
offense. The district court found otherwise, and we discern no clear error in that
determination.
Coombs presented to the district court a narrative that he was drunk and
hallucinating when he assaulted M.C. The district court considered and rejected that
narrative. It noted that not even Coombs’ doctor “would go so far” as to suggest his
actions were the product of hallucination. Moreover, the record reflects that the
emergency room doctor who examined Coombs after the attack noted that “[h]e has
been drinking this evening, at least a fifth of vodka. He also uses oxycodone and
Adderall for ADHD and has taken both of those this evening. He is actually quite
awake and alert for having had these sedating medications. He clearly states that he
did not have a loss of consciousness.” In light of all the record evidence, the court
determined that the most logical inferences were that Coombs “knew he was in the
wrong restroom, that he battered his way into another stall where someone was there
not presenting any threat, and he concealed his identity during the course.” The
district court determined this “goes beyond the simple form of assault and is more
than minimal planning.”
2
Coombs asserts he did not take significant affirmative steps to conceal the
assault because he did not wear a ski mask and did not succeed in concealing his
identity. But wearing a ski mask is merely one example constituting more than
minimal planning, and the fact that Coombs—as he phrased it—“ineptly wrapped
toilet paper around the lower part of his face” does not mean he did not attempt to
conceal his identity.
9
Contrary to Coombs’ contention, these are reasonable inferences drawn from
undisputed facts in the record. In essence, Coombs complains that the district court
found persuasive an explanation different from the one he advanced. But where, as
here, there is “a range of possible outcomes the facts and law at issue can fairly
support,” the reviewing court does not “pick and choose among them” but rather
“defer[s] 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). Because the record supports the district court’s factual findings, the court
did not clearly err by drawing inferences contrary to the ones Coombs would have
had it draw.
For these reasons, we conclude the district court did not commit procedural
error in applying the more-than-minimal-planning enhancement. Accordingly, we
conclude that the district court correctly determined the applicable guidelines
imprisonment range was 70 to 87 months.
B
Turning to substantive reasonableness, we conclude that Coombs has failed to
rebut the presumption that his sentence is substantively reasonable. As explained
above, the district court did not commit procedural error in calculating the guidelines
range for his sentence to be 70 to 87 months. Because the court’s ultimate sentence
of 78 months’ imprisonment falls within this range, it is presumptively reasonable.
Kristl, 437 F.3d at 1054.
10
Substantive reasonableness addresses “whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” Verdin-Garcia, 516 F.3d at 895. Under § 3553(a)(6),
sentencing courts must consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct.” Relying on statistical data regarding the infrequent application of the
more-than-minimal-planning enhancement in aggravated assault cases, Coombs
argues that his sentence is substantively unreasonable because it is “well above the
national average” and thus violates § 3553(a)(6). But § 3553(a)(6)’s consideration of
unwarranted sentence disparities is but one factor that a district court must balance
against the other § 3553(a) factors in arriving at an appropriate sentence. See United
States v. Martinez, 610 F.3d 1216, 1228 (10th Cir. 2010). Moreover, Coombs admits
he does not know whether the enhancement was applied in any of the cases
comprising the data set on which he relies for his purported average sentence. Nor
does he provide any information about the underlying facts of the aggravated assault
cases making up that data set. Without more, Coombs has failed to show that his
sentence is similar to the cases he asserts are comparable or that any disparity
between his case and these other cases is “unwarranted.” § 3553(a)(6).
Coombs also contends that the district court placed excessive weight on
§ 3553(a)(2)’s instruction to consider “the need for a sentence to reflect the
seriousness of the crime, deter future criminal conduct, prevent the defendant from
committing more crimes, and provide rehabilitation.” Specifically, he takes issue
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with the court’s assessment that he had repeatedly received lenient sentences for
troubling conduct and was not deterred by these sentences from assaulting M.C. Yet
under our deferential standard of review, we must affirm “[a]s long as the balance
struck by the district court among the factors set out in § 3553(a) is not arbitrary,
capricious, or manifestly unreasonable.” Martinez, 610 F.3d at 1229 (quotation
omitted).
Coombs has not persuaded us that his sentence was arbitrary, capricious, or
manifestly unreasonable. He asserts that his crime was less serious than other
aggravated assault crimes committed in Wyoming, but this bare comparison does not
demonstrate an unreasonable application or balancing of the § 3553(a) factors.
Similarly, he attempts to minimize aspects of his criminal history, but he fails to
explain how the court’s assessment of his criminal history is erroneous. Instead, he
complains about the court’s “censorious tone” and insinuates that the sentencing
judge had a “personal and perhaps socio-economic connection to [M.C.]” These
conclusory and unfounded assertions fail to rebut the presumption that Coombs’
sentence is substantively reasonable.
Finally, Coombs argues that his sentence is longer than necessary to achieve
the goals of sentencing. See § 3553(a). But he fails to address the district court’s
thorough explanation as to why the 78-month sentence imposed was appropriate.
Instead, he asserts without elaboration that a 51-month sentence is more than
adequate to achieve the statute’s purposes. Again, without more, Coombs has failed
to rebut the presumption that his sentence is substantively reasonable.
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Accordingly, we conclude the district court’s sentencing decision was not
substantively erroneous.
III
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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