FILED
United States Court of Appeals
Tenth Circuit
March 1, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-3170
v. D. Kansas
MATTHEW L. CHURCH, (D.C. No. 6:11-CR-10168-MLB-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, EBEL, and MURPHY, Circuit Judges.
I. Introduction
Appellant Matthew L. Church pleaded guilty to one count of robbery, in
violation of 18 U.S.C. § 1951(a). The district court sentenced him to 180 months’
imprisonment, a sentence near the top of the advisory guidelines range. Church
appeals his sentence, conceding the career offender guideline was correctly
*
This order and judgment is not binding precedent except under the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.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
applied in his case, but arguing his sentence is nevertheless substantively
unreasonable in light of the nature and circumstances of the offense of conviction
and his history and characteristics. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), we affirm Church’s sentence.
II. Background
In 2011, Church was arrested after robbing a Wichita pizza restaurant of
$82. After he pleaded guilty to one count of robbery, in violation of 18 U.S.C.
§ 1951(c), the United States Probation Office prepared a Presentence
Investigation Report (“PSR”). The PSR calculated Church’s offense level at
thirty-two by applying the career offender sentencing guideline. See U.S.S.G.
§ 4B1.1(b)(3). The PSR also recommended a three-level reduction in the offense
level for acceptance of responsibility, resulting in a total offense level of twenty-
nine. See U.S.S.G. § 3E1.1. Church’s criminal history score and his status as a
career offender each independently established a criminal history category of VI.
Church’s prior convictions included burglary of a dwelling, felony forgery,
possession of drug paraphernalia, attempted robbery, and attempted aggravated
robbery. The total offense level of twenty-nine combined with a criminal history
category of VI yielded an advisory guidelines range of 151 to 188 months’
imprisonment.
Church filed a written memorandum prior to sentencing, asking the district
court to vary downward from the advisory guidelines range and impose a sentence
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of fifty-one months. Although he admitted the PSR properly applied the career
offender guideline, he argued his criminal history is less egregious than the
typical career offender. In particular, he asserted he is a low level drug addict
who did not “derive a lucrative income” from committing crimes. While
admitting he had a history of robbing or attempting to rob local businesses, he
argued he never inflicted physical harm and never used a firearm or other
weapon.
At the sentencing hearing, Church again asked the district court to sentence
him as if the career offender guideline did not apply. He repeated the arguments
made in his written memorandum, emphasizing his position that he is a nonviolent
offender whose criminal behavior was “heavily influenced by the use of drugs.”
The district court, however, rejected Church’s arguments, concluding a below-
guidelines sentence was not justified based on a balancing of the factors set out in
18 U.S.C. § 3553(a). The court described Church’s criminal history as
“continuous” activity involving the commission of “serial felonies.” When
analyzing the nature and circumstances of the offense of conviction, the court
characterized the robbery conviction as a “serious offense.” The court also
expressed concern that prior terms of incarceration in the state system had not
deterred Church from continuing to commit crimes. It remarked that Church was
“one of the rare people that I’ve seen in the last 20 years who I think will
continue to commit crimes throughout [his] life.”
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Based on its analysis of the sentencing factors, the district court sentenced
Church to 180 months’ incarceration, a sentence near the top of the advisory
guidelines range. After announcing the sentence, the court stated that even if the
career offender guideline did not apply, it would have varied upward to the 180-
month sentence. Church appeals, arguing his sentence is substantively
unreasonable.
III. Discussion
Church concedes the career offender guideline applies and, thus, he makes
no challenge to the procedural reasonableness of his sentence. His appellate
argument is confined to the substantive reasonableness of the sentence. This
court reviews a challenge to the substantive reasonableness of a sentence under a
deferential abuse of discretion standard. United States v. Alapizco-Valenzuela,
546 F.3d 1208, 1214 (10th Cir. 2008). “Substantive reasonableness involves
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.
Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007). Sentences which fall within a
properly calculated guidelines range are entitled to a rebuttable presumption of
substantive reasonableness. United States v. Parker, 553 F.3d 1309, 1322 (10th
Cir. 2009). On appeal, Church bears the burden of demonstrating his sentence is
outside the range of sentences the record can “fairly support.” United States v.
McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).
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Church’s appellate argument is repetitive of the arguments he presented to
the district court. He again asserts his criminal history does not include violent
behavior and the offense of conviction did not involve a firearm, weapon, or
threat. He also argues he did not engage in criminal activity as a business to
make a profit, instead describing himself as “a drug addict supporting his habit.”
After considering his appellate arguments, we conclude Church has failed
to rebut the presumption his sentence is reasonable. The district court concluded
Church was a repeat offender with a lengthy criminal history who was not
deterred by numerous prior terms of imprisonment. The record makes clear the
district court considered all of Church’s arguments, independently weighed the
§ 3553(a) factors, and fully explained its reasoning before imposing a sentence
within the correctly calculated advisory guidelines range.
IV. Conclusion
Church has not shown the sentence imposed by the district court is outside
the range of sentences the record can fairly support. McComb, 519 F.3d at 1053.
Accordingly, his sentence of 180 months’ incarceration is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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