United States v. Branson

F IL E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 29, 2006
U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

U N ITED STA TES O F A M ER ICA ,

Plaintiff - Appellee ,

v. No. 06-3038

STEPH EN H ER BER T B RA N SON ,

Defendant - Appellant .

A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R TH E D ISTR IC T O F K A N SA S *
(D .C . N O . 04-C R -20151-K H V )

Submitted on the briefs:

Jessica J. Travis, Olathe, Kansas, for D efendant - Appellant .

Eric F. M elgren, United States Attorney, Kim I. M artin, Assistant United States
Attorney, Kansas City, Kansas, for Plaintiff - Appellee .

Before T A C H A , H A R T Z , and T Y M K O V IC H , Circuit Judges.

H A R T Z, 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.
 Stephen Herbert Branson pleaded guilty in the United States D istrict Court

for the District of Kansas to one count of possession of child pornography, see

18 U .S.C . § 2252(a)(4)(B ), and was sentenced to 51 months’ imprisonment. O n

appeal he argues that his sentence is unreasonable. W e have jurisdiction under

28 U.S.C. § 1291 and affirm. In particular, we hold that a disparity between the

federal-court sentence and the sentence that would be imposed for a like offense

in state court does not make the sentence unreasonable.

I. BACKGROUND

M r. Branson was indicted on November 17, 2004, for possession of child

pornography. He pleaded guilty without entering into a plea agreement. His

presentence report (PSR) calculated a total offense level of 24 and a criminal-

history category of I. The resulting sentencing range under the United States

Sentencing Guidelines was 51 to 63 months’ imprisonment. Neither the

government nor M r. Branson objected to the PSR.

On July 21, 2005, M r. Branson submitted a sentencing memorandum to the

court requesting a downward variance from the Guidelines sentencing range. The

memorandum argued that M r. Branson was not a risk to public safety and that he

had accepted responsibility for his crime. The district court held sentencing

hearings on July 25, 2005; August 22, 2005; and January 24, 2006. At the July 25

hearing the court heard testimony from Dr. Bascom R atliff, who had performed a

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sexual-offender evaluation on M r. Branson; from M r. Branson; and from his wife,

M egan Branson. After the hearing the court enumerated the factors favoring

leniency, including M r. Branson’s “exceptional remorse, his history of mental

illness, [and] his lack of any prior sexually aggressive conduct or sexually deviant

conduct.” R. Vol. II at 72. But it expressed a desire for more information,

recognizing “that there are limitations in [Dr. Ratliff’s] testimony” because of his

failure to verify M r. Branson’s description of his condition, and stating that it

“would like to know . . . what kinds of specific treatment programs exist within

the Bureau of Prisons” and how such programs compared to programs available

outside prison. Id. The court continued the hearing to allow the attorneys to

gather additional information.

At the August 22 hearing the district court heard testimony from Dr. Andres

Hernandez, director of the sex-offender treatment program at the Federal

Correctional Institution in Buckner, N orth Carolina; Dr. John W isner, a

psychiatrist at the University of Kansas School of M edicine; Brenda Jamison,

M r. Branson’s ex-wife; and Ruby Branson and Augusta Branson Bonecutter,

M r. Branson’s two daughters. At the end of the hearing the court stated that

M r. Branson “has certain behaviors and offense characteristics which are

inconsistent with [his] self-report[] to [Dr. Ratliff],” and ordered M r. Branson “to

participate in a sexual offender treatment screening program . . . under the

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auspices of the court, . . . independent of either side’s expert witnesses, and

[which] w ould include, but not be limited to, polygraph examinations.” R. Vol.

III D oc. 46 at 131-32. The court again continued the sentencing proceedings.

The district court held the final hearing on January 24, 2006, after receipt

of the independent-examination report ordered on August 22. The court heard

arguments from the parties and then stated:

[I]t seems to me that a sentence at the low end of the guidelines, 51
months, would be the best w ay to give you . . . treatment in a highly
structured environment, which the Court finds that you do need. This
would be the best way to deter other people from committing these kind of
offenses, and to punish you for the wrong which you’ve done. . . . I’ve
given a lot of thought to this and . . . I think that this sentence is no greater
than is necessary to provide adequate deterrence and also to protect the
public.

R. Vol. IV Doc. 47 at 154-55.

II. D ISC U SSIO N

M r. Branson’s only contentions on appeal relate to the reasonableness of

his sentence. After United States v. Booker, 543 U.S. 220 (2005), we review

sentences for reasonableness. See United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006). “[A] sentence that is properly calculated under the Guidelines is

entitled to a rebuttable presumption of reasonableness. This is a deferential

standard that . . . the defendant . . . may rebut by demonstrating that the sentence

is unreasonable when viewed against the other factors delineated in [18 U.S.C.]

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§ 3553(a).” Id. at 1054. W e review the district court’s “factual findings for clear

error and legal determinations de novo.” Id.

M r. Branson argues that his sentence was unreasonable for the following

reasons: (1) the sexual-offender evaluation performed by Dr. Ratliff showed that

he is not a threat to public safety; (2) he accepted responsibility for his crime and

cooperated fully with the investigation of his offense; (3) the expert testimony

proffered by the government was not persuasive because the experts had not

personally evaluated him; (4) the district court did not consider the sentencing

factors set forth in 18 U.S.C. § 3553(a); and (5) he received a much higher

sentence than he would have received had he been prosecuted by the state.

M r. Branson has not rebutted the presumption of reasonableness. The first

three of M r. Branson’s contentions are nothing more than a disagreement with the

district court about how the evidence should be evaluated and weighed. There

was no clear error in the court’s assessment of the facts.

As for M r. Branson’s complaint that the district court did not discuss the

§ 3553(a) factors, we read the record differently. The court did address the

factors as it explained its sentencing decision. In any event, the court is not

required to express its consideration of those factors on the record. See United

States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005) (“It is true that the district

court did not march through § 3553(a)’s sentencing factors, but we have never

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imposed such a requirement.”). This was not a perfunctory sentencing

proceeding. The court’s consideration of the arguments made by M r. Branson

was exceedingly thorough. See United States v. Sanchez-Juarez, 446 F.3d 1109,

1117 (10th Cir. 2006) (“[W]here a defendant has raised a nonfrivolous argument

that the § 3553(a) factors w arrant a below-Guidelines sentence and has expressly

requested such a sentence, we must be able to discern from the record that the

sentencing judge did not rest on the guidelines alone, but considered whether the

guidelines sentence actually conforms, in the circumstances, to the statutory

factors.” (internal quotation marks, brackets, and ellipses omitted)).

Finally, M r. Branson argues that he would have received a significantly

low er sentence had he been prosecuted in state court. Sentencing courts must

consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6). But this 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. Federal and state authorities have concurrent

jurisdiction over various offenses and may apply disparate punishments to similar

conduct. Adjusting federal sentences to conform to those imposed by the states

where the offenses occurred would not serve the purposes of § 3553(a)(6), but,

rather, would create disparities within the federal system, which is what

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§ 3553(a)(6) is designed to discourage. As the Fourth Circuit said in reversing a

sentence that apparently considered state/federal sentencing disparities, “The sole

concern of section 3553(a)(6) is with sentencing disparities among federal

defendants. . . . The Guidelines [seek] to avoid only the unwarranted disparities

that exist[] in the federal criminal justice system, that system for which the

Guidelines are governing law.” United States v. Clark, 434 F.3d 684, 687 (4th

Cir. 2006). O ther circuits take a like view of the Guidelines. See United States v.

Snyder, 136 F.3d 65, 70 (1st Cir. 1998) (“[F]ederal/state sentencing disparity is

not a feature that can justify a departure.”); United States v. Haynes, 985 F.2d 65,

70 (2d Cir. 1993) (“Allowing departure because a defendant might have been

subjected to different penalties had he been prosecuted in state court would make

federal sentences dependent on the law of the state in w hich the sentencing court

was located, resulting in federal sentencing that would vary from state to state.

To adopt this rationale for departure would surely undermine Congress’ stated

goal of uniformity in sentencing.”); United States v. Jeremiah, 446 F.3d 805, 808

(8th Cir. 2006) (“Unwarranted sentencing disparities among federal defendants

remains the only consideration under § 3553(a)(6)— both before and after

Booker.”); U nited States v. Williams, 282 F.3d 679, 681-82 (9th Cir. 2002)

(“[T]he district court abused its discretion in departing [downward] on the ground

that there was a disparity between federal and state penalties . . . . Allowing this

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result to stand would undermine the goal of uniformity that Congress sought to

ensure in enacting the Guidelines, because every federal sentence would become

dependent upon the practice of the state within which the federal court sits.”

(internal quotation marks omitted)); United States v. Searcy, 132 F.3d 1421, 1422

(11th Cir. 1998) (per curiam) (“Allowing departure because the defendant could

have been subjected to lower state penalties would undermine the goal of

uniformity which Congress sought to ensure . . . .”); cf. United States v. Dockery,

965 F.2d 1112, 1114 (D.C. Cir. 1992) (the district court erred by “depart[ing]

downward from both the federal statutory minimum sentence and the federal

sentencing guidelines to impose a term of imprisonment corresponding to the one

that the defendant would have received had he been convicted in Superior

Court”). The sentence imposed on M r. Branson is not unreasonable simply

because it is more severe than a state-court sentence would have been.

III. C O N C L U SIO N

W e AFFIRM the judgment of the district court.

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