FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 11, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2022
(D.C. No. 1:17-CR-01714-JCH-1)
PATRICK CALVIN BEGAY, (D. N.M.)
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:17-CR-01714-JCH-1)
_________________________________
Submitted on the briefs:*
Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant.
John C. Anderson, United States Attorney, Albuquerque, New Mexico, for Plaintiff-
Appellee.
_________________________________
Before LUCERO, MURPHY, and EID, Circuit Judges.
_________________________________
LUCERO, Circuit Judge.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
This case involves disparities in the sentences received by Native Americans
in federal court for aggravated assault as compared to state-court sentences for
similar conduct. Although we are sympathetic to Begay’s argument that but for an
“an accident of history and geography,” he would have received a lighter sentence,
we conclude that our precedents foreclose the consideration of federal/state
sentencing disparities under 18 U.S.C. § 3553(a)(6). Accordingly, exercising
jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.
I
Begay assaulted a man in the Navajo Nation with a baseball bat and a knife.
The crime thus occurred in Indian country, within the boundaries of the reservation.
Both Begay and the victim are enrolled members of the Navajo Nation. Begay was
indicted in federal court on two counts of assault with a dangerous weapon and one
count of assault resulting in serious bodily injury. He pled guilty to these charges.
The Probation Office issued a Presentence Report (“PSR”) calculating Begay’s
guidelines imprisonment range to be 46 to 57 months. By analogy to Kimbrough v.
United States, 552 U.S. 85 (2007), Begay requested that the court vary from this
range because significantly higher penalties are imposed on Native Americans
convicted of assault in New Mexico federal court than in New Mexico state court.
Defense counsel requested to submit testimony regarding this asserted sentencing
disparity. The government objected, arguing that under our precedents, if the district
court “even considers this argument or this train of argument in any way whatsoever,
any sentence rendered by the [c]ourt becomes invalid.” The sentencing judge agreed,
2
stating that she could not consider Begay’s sentencing-disparity argument under our
unpublished decision in United States v. Beaver, 749 F. App’x 742 (10th Cir. 2018)
(unpublished), and moreover, she would not consider this argument because the
evidence Begay offered to present lacked sufficient detail to make any comparison of
his sentence to state-court sentences meaningful.
Begay was sentenced to 46 months’ imprisonment. He appeals, challenging
the reasonableness of his sentence.
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
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). Section 3553(a) includes an
“overarching provision instructing district courts to ‘impose a sentence sufficient, but
not greater than necessary,’ to accomplish the goals of sentencing” set forth in
§ 3553(a)(2). Kimbrough, 552 U.S. at 101 (quoting § 3553(a)). The statute
enumerates several factors that the sentencing court “shall consider.” § 3553(a). Of
particular relevance to this appeal is § 3553(a)(6), under which a sentencing court
3
considers “the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
“We review sentences for reasonableness under a deferential abuse of
discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008)
(citation omitted). Under this standard, we will reverse a sentence if it is “arbitrary,
capricious, whimsical, or manifestly unreasonable.” United States v. Muñoz-Nava,
524 F.3d 1137, 1146 (10th Cir. 2008) (quotation omitted). “A district court by
definition abuses its discretion when it makes an error of law.” Koon v. United
States, 518 U.S. 81, 100 (1996).
A
Citing Kimbrough, Begay argues that sentencing courts are not prohibited
from considering whether sentences imposed on Native Americans for aggravated
assault are unfairly harsh because Native Americans are disproportionately subject to
federal jurisdiction. In Kimbrough, the Supreme Court upheld a district court’s
decision to impose a below-guidelines sentence on a defendant who pled guilty to
charges relating to the possession and distribution of crack cocaine. 552 U.S. at 91-
93. The Court began by explaining that the 100-to-1 disparity in crack and powder
offenses—treating each gram of crack cocaine as equivalent to 100 grams of powder
cocaine—originated in the Anti-Drug Abuse Act of 1986 (“ADAA”) and was based
on several false assumptions about the relative harmfulness of the two drugs. Id. at
95-97. It further explained that the Sentencing Commission, in adopting the ADAA’s
“weight-driven scheme” to set base offense levels for drug-trafficking, acted outside
4
its “characteristic institutional role” to formulate sentencing standards based on
“empirical data and national experience.” Id. at 96, 109 (quotation omitted). The
Court also noted that the Commission itself had determined that the disparity was
“generally unwarranted” for several reasons, including that it disproportionately
affected African Americans and thereby “foster[ed] disrespect for and lack of
confidence in the criminal justice system.” Id. at 97-98 (quotations and citations
omitted). Consistent with these conclusions, the Commission attempted several
times—in 1995, 1997, 2002, and 2007—to reduce the crack/powder disparity, with
limited success. See id. at 99.
Against this background, the district court sentenced Kimbrough below the
recommended guidelines range. The court reasoned that the crack/powder cocaine
disparity in the Guidelines “drove the offense level to a point higher than is necessary
to do justice in this case.” Id. at 111 (alteration omitted). The Fourth Circuit
reversed, holding that “a sentence outside the guidelines range is per se unreasonable
when it is based on a disagreement with the sentencing disparity for crack and
powder cocaine offenses.” Id. at 93.
Reversing the Fourth Circuit, the Supreme Court began from the premise
stated in United States v. Booker, 543 U.S. 220 (2005), that the Guidelines are no
longer mandatory, and the district court is tasked with “impos[ing] a sentence
sufficient, but not greater than necessary” to accomplish the goals of sentencing
provided in § 3553(a). 522 U.S. at 101 (quotation omitted). The Court concluded
that consistent with this directive, “the District Court properly homed in on the
5
particular circumstances of Kimbrough’s case and accorded weight to the Sentencing
Commission’s consistent and emphatic position that the crack/powder disparity is at
odds with § 3553(a).” Id. at 111. Accordingly, the Court held that the district court
did not abuse its discretion in calculating Kimbrough’s sentence, and the Fourth
Circuit erred in concluding otherwise. Id.
Begay draws several comparisons between the crack/powder disparity
addressed by the Court in Kimbrough and the disparity in aggravated-assault
sentences imposed on Native Americans. Like the crack/powder disparity, the
aggravated-assault disparity originates in a statute: the 1885 Major Crimes Act
(“MCA”), 18 U.S.C. § 1153, which confers exclusive jurisdiction to the federal
courts over certain offenses committed by “[a]ny Indian . . . within the Indian
country.” As Begay contends, and the government does not dispute, the MCA
disproportionately affects Native Americans.
Also like the crack/powder disparity, the aggravated-assault disparity is not the
result of empirical data or national experience. Begay avers that the Sentencing
Commission failed to collect adequate demographic data when it decided to apply the
Guidelines to the MCA. As a result, the Commission did not consider the potentially
disproportionate impact the Guidelines would have on Native Americans convicted
of crimes enumerated in the statute. Acknowledging this problem, the Commission
formed two advisory groups, the Native American Advisory Group (“NAAG”) and
the Tribal Issues Advisory Group (“TIAG”), to improve the application of the
Guidelines to Native Americans under the MCA. The advisory groups confirmed the
6
disparity between federal and state sentences imposed on Native Americans—
particularly aggravated-assault sentences in New Mexico. See U.S. Sentencing
Comm’n, Report of the Native American Advisory Group i (2003); U.S. Sentencing
Comm’n, Report of the Tribal Issues Advisory Group 3, 19 (2016).
B
Before the district court, Begay argued these similarities with Kimbrough
warranted consideration in the calculation of his sentence. Relying on our
unpublished decision in Beaver, 749 F. App’x 742, the district court concluded that it
could not consider disparities in aggravated-assault sentences imposed in federal
court versus New Mexico state court. Beaver, of course, is not precedential, but it
nonetheless purports to rely on two opinions, United States v. Branson, 463 F.3d
1110 (10th Cir. 2006), and United States v. Wiseman, 749 F.3d 1196 (10th Cir.
2014), for its stated proposition. 749 F. App’x at 748. On appeal, Begay argues we
should consider federal/state sentencing disparities that disproportionately affect
Native Americans, drawing compelling parallels to the application of the
crack/powder disparity on African Americans discussed in Kimbrough.
In Branson, we rejected the argument that a sentencing court must take
account of federal/state sentencing disparities under § 3553(a)(6). 463 F.3d at 1112.
That subsection provides that sentencing courts must consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” § 3553(a)(6). We explained in Branson that
7
this directive “does not mean that a sentence calculated under the Guidelines is
unreasonable simply because it is harsher than a state-court sentence would be for a
comparable crime.” 463 F.3d at 1112. Because state and federal courts exercise
concurrent jurisdiction over several criminal offenses, differences in sentences
imposed in state and federal courts are to be expected. See id. Thus, consistent with
the rulings of our sibling circuits, we concluded that the purpose of § 3553(a)(6) is
not to prevent disparities between state and federal sentences, but rather to prevent
disparities in sentences among federal defendants. Id. at 1112-13 (collecting cases).
Were the sentencing court to conform a federal sentence to a state sentence, it would
undermine this goal. See id. at 1112. Accordingly, we held that “[t]he sentence
imposed on Mr. Branson is not unreasonable simply because it is more severe than a
state-court sentence would have been.” Id. at 1113 (emphasis added).
Eight years later in Wiseman, we again rejected the argument that the district
court procedurally erred by failing to consider, under § 3553(a)(6), whether the
defendant would have received a different sentence in state court for similar conduct.
749 F.3d at 1194, 1196. Citing Branson, we affirmed “that § 3553(a)(6) is only
intended to apply to sentencing disparity among and between similarly situated
federal defendants.” Id. at 1196 (citation omitted). We further concluded that under
Kimbrough, a “judge’s policy judgment that drug sentences in federal court are too
long when compared to state court sentences” cannot be used as the basis for a
downward variance under § 3553(a)(6). Id.
8
We are sympathetic to Begay’s concern that Native Americans receive harsher
sentences for aggravated assault than other groups for no reason other than Native
Americans are disproportionately subject to federal criminal jurisdiction.
Nevertheless, we acknowledge “[w]e cannot overrule the judgment of another panel of
this court. We are bound by the precedent of prior panels absent en banc reconsideration
or a superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724
(10th Cir. 1993) (per curiam). Branson and Wiseman control, and they preclude
consideration of Begay’s sentencing-disparity arguments.
These precedents deal only with § 3553(a)(6). Begay’s sentencing-disparity
arguments may be relevant to other § 3553(a) factors. See Kimbrough, 552 U.S. at
110-11.1 We agree with the government, however, that Begay has failed to
sufficiently develop his arguments with respect to any § 3553(a) factor other than
§ 3553(a)(6). In his opening brief on appeal, Begay cites the provision in
§ 3553(a)(2)(A) that requires a district court to consider “the need for the sentence
imposed . . . to promote respect for the law.” But other than a citation to a dissenting
1
We note that in Kimbrough, the Court specifically upheld the district court’s
application of the § 3553(a) factors to the crack/powder sentencing disparity,
including its allusion to the Sentencing Commission’s reports on the 100-to-1
disparity under § 3553(a)(5), which requires consideration of policy statements
issued by the Sentencing Commission. Id. at 110. The Court also approved the
sentencing court’s “fram[ing of] its final determination in line with § 3553(a)’s
overarching instruction to impose a sentence sufficient, but not greater than
necessary, to accomplish the sentencing goals advanced in § 3553(a)(2).” Id. at 111
(quotation omitted); see also Wiseman, 749 F.3d at 1196 (noting possibility that
sentencing disparity could warrant downward variance under § 3553(a) factors other
than § 3553(a)(6)).
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opinion from one of our sibling circuits and a citation to Kimbrough, he does not
further develop the argument that a district court may consider a federal/state
sentencing disparity under § 3553(a)(2)(A). Accordingly, we consider Begay’s
sentencing-disparity arguments under only § 3553(a)(6).
So limited, Begay’s arguments are foreclosed by Branson and Wiseman. Both
cases squarely hold that a district court may not consider a federal/state sentencing
disparity under § 3553(a)(6), reasoning that consideration of such a disparity would
undermine the statute’s goal of achieving uniformity in sentences among similarly
situated federal defendants. Branson, 463 F.3d at 1112-13; Wiseman, 749 F.3d at
1196. Wiseman, moreover, holds that “the Kimbrough line of cases do not . . .
conflict with Branson” and do not contradict our interpretation of § 3553(a)(6). 749
F.3d at 1195. Instead, Kimbrough recognizes “that the guidelines are advisory and
that district courts have the authority to deviate from guideline sentences based on
policy considerations, including disagreements with the guidelines.” Id. Begay
attempts to distinguish Branson and Wiseman on the basis that they did not involve a
Native American defendant. But the disproportionate effect of a sentencing disparity
on Native Americans, though perhaps relevant to other § 3553(a) factors, does not
permit us to review federal/state disparities under § 3553(a)(6).2
2
Begay also argues that his sentence is substantively unreasonable because the
district court “failed to recognize [that] federal/state sentencing disparities warranted
a place in its sentencing deliberation.” His argument for substantive
unreasonableness is substantially identical to his arguments for procedural
unreasonableness. Because he contends the district court failed to consider his
sentencing-disparity arguments under the § 3553(a) sentencing factors, Begay’s
10
III
AFFIRMED.
substantive-unreasonableness argument is properly addressed as a challenge to the
procedural reasonableness of his sentence. See United States v. Sanchez-Leon, 764
F.3d 1248, 1268 n.15 (10th Cir. 2014) (“[P]rocedural error is the failure to consider
all the relevant factors, whereas substantive error is when the district court imposes a
sentence that does not fairly reflect those factors.” (alterations and quotations
omitted)). Accordingly, we reject his substantive-unreasonableness challenge.
Additionally, Begay argues in a footnote that “the issue raised in this case is
tantamount to an equal protection violation as it raises . . . concerns of injustice based
on immutable characteristics.” He provides no further explanation in support of this
assertion. Because this argument is insufficiently developed, we decline to consider
it. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (issues omitted
from or inadequately presented in opening brief are waived).
11