United States v. Jenkins

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 29, 2024
• Docket: 23-6198
• Status: Unpublished

Opinion

Appellate Case: 23-6198 Document: 46-1 Date Filed: 10/29/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 29, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6198 (D.C. No. 5:22-CR-00406-R-1) JOSEPH ALAN JENKINS, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Joseph Alan Jenkins appeals his 72-month prison sentence for unlawful

possession of a firearm after a prior felony conviction in violation of 18 U.S.C.

§ 922(g)(1). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we affirm.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-6198 Document: 46-1 Date Filed: 10/29/2024 Page: 2

I. Background

In August 2022, Mr. Jenkins’s girlfriend reported that he had knocked her

unconscious, kept her locked in their residence, then threatened to kill her and her

family if she spoke to police. When police searched the residence, they found two

guns. Mr. Jenkins was charged in state court with domestic abuse, kidnapping, and

planning or threatening a violent act, Okla. Stat. tit. 21, §§ 644.1, 741, 1378. Those

charges were later dismissed due to a lack of victim cooperation.

In this case, Mr. Jenkins was indicted for a single count under § 922(g)(1) for

possession of the guns found in the residence. He pled guilty without a plea

agreement. A presentence investigation report (PSR) summarized his criminal

history, which included six juvenile adjudications and seven adult convictions. Two

of the convictions were for unlawful firearm possession. In both of those, he was

reported to have used a gun while committing an assault. The PSR calculated an

advisory sentencing range of 30 to 37 months under the U.S. Sentencing Guidelines.

Neither party disputed that calculation. The PSR also noted reasons the court might

impose an above-guidelines sentence, including Mr. Jenkins’s criminal history, the

guidelines’ failure to account for the alleged assault and kidnapping, and concerns

with gun possession tied to domestic violence.

In a sentencing memorandum, Mr. Jenkins argued for a sentence at the bottom

of the advisory guidelines range. He emphasized difficulties in his personal history

and argued he had not used the guns underlying the § 922(g)(1) conviction in any

crime, including the alleged assault and kidnapping. In objections to the PSR, he

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disputed his girlfriend’s allegations. He also objected to the PSR’s narrative

descriptions of his prior gun convictions and its citation to a report about domestic

violence prepared by the Oklahoma Attorney General’s office.

At sentencing, Mr. Jenkins recognized that the court might impose a

“prolonged” sentence based on his criminal history, R. Vol. 3 at 6, and that it could

also consider the circumstances of the alleged assault and kidnapping. He argued his

criminal history warranted a sentence near the top of the guidelines range but not

above it, given his personal history and the lack of evidence that he had used the guns

underlying his conviction in a crime. The government argued for a sentence at or

above the top of the guidelines range.

The district court imposed a sentence of 72 months. The judge stated he had

considered the PSR, Mr. Jenkins’s memorandum, the parties’ arguments, and the

18 U.S.C. § 3553(a) factors. He identified Mr. Jenkins’s criminal history and

dangerousness and the need to protect the public as reasons to impose an

above-guidelines sentence:

I look back at your criminal history, and it’s one that’s replete with—with violence, drugs, and alcohol, and, of course, that’s what led to this—this prosecution today. It’s just fortunate that you’ve never killed anybody. You haven’t, but I consider you a danger to society, and I think—I agree with the recommendation from the probation office that an upward variance is appropriate. With this in mind, it’s the judgment of the Court the defendant is committed to the custody of the Bureau of Prisons for a term of 72 months.

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R. Vol. 3 at 10. After advising Mr. Jenkins of his right to appeal and asking for any

requested place of incarceration, the court then recessed without asking if there were

other objections or anything else to address. In the written statement of reasons

accompanying its judgment, the court indicated the upward variance was based on

Mr. Jenkins’s past violence, firearms convictions, and drug and alcohol use, as well

as the need to protect the public.

Mr. Jenkins appeals, arguing his sentence is procedurally unreasonable

because the district court’s explanation was insufficient, and substantively

unreasonable because it is too long.

II. Legal Standards

“[W]e review ‘all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.’”

United States v. Gross, 44 F.4th 1298, 1301 (10th Cir. 2022) (quoting Gall v. United

States, 552 U.S. 38, 41 (2007)). “Our reasonableness review has two aspects:

procedural and substantive.” United States v. Cookson, 922 F.3d 1079, 1091

(10th Cir. 2019). Procedural reasonableness “consider[s] whether the district court

committed any error in calculating or explaining the sentence.” Id. (internal

quotation marks omitted). Such errors might include “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51.

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“When reviewing a sentence for substantive reasonableness, we focus on 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).” Cookson, 922 F.3d at 1091 (internal

quotation marks omitted).

III. Discussion

A. Procedural Reasonableness

1. Standard of Review

We first must decide which standard of review to apply in addressing

procedural reasonableness under the circumstances of this case. The government

argues we should review only for plain error because Mr. Jenkins did not make a

contemporaneous objection to the district court’s explanation of its sentence. See

United States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th Cir. 2009) (“[P]lain error

review obtains when counsel fails to render a contemporaneous objection to the

procedural adequacy of a district court’s statement of reasons at sentencing.”).

Mr. Jenkins argues the district court did not give him a fair opportunity to object after

announcing its sentence, so our regular standard of review should apply. See id. at

1294 (stating plain error review applies “only when counsel has been given, but has

not taken advantage of, an opportunity to voice his or her objection”). We apply our

regular standard of review, both because the record is not clear as to whether

Mr. Jenkins’s counsel had a fair opportunity to make a contemporaneous objection,

and because we would affirm under either standard.

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2. Relevant Legal Principles

A party’s argument that the district court “fail[ed] to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines

range”—is a challenge to procedural reasonableness. Gall, 552 U.S. at 51. However,

an adequate explanation is also “relevant to whether the length of the sentence is

substantively reasonable because a sentence is more likely to be within the bounds of

reasonable choice when the court has provided a cogent and reasonable explanation

for it.” Cookson, 922 F.3d at 1091 (internal quotation marks and brackets omitted).

“A limited, brief, or inconsistent explanation . . . puts at risk the substantive

reasonableness of any decision the district court reached” by hindering appellate

review. Id. (internal quotation marks and brackets omitted).

We address procedural reasonableness first. See Gall, 552 U.S. at 51 (“[The

court of appeals] must first ensure that the district court committed no significant

procedural error . . . .”). To adequately explain the sentence chosen, “[t]he

sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

“Sometimes the circumstances will call for a brief explanation; sometimes they will

call for a lengthier explanation.” Id. at 357. “Where the judge imposes a sentence

outside the Guidelines, the judge will explain why he has done so.” Id. “[A] major

variance should be supported by a more significant justification than a minor one.”

Cookson, 922 F.3d at 1092 (internal quotation marks and brackets omitted).

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3. Analysis

Although the district court’s explanation was brief, it does not preclude

meaningful appellate review or leave us unsure it had a reasoned basis for the chosen

sentence. The court explained it was varying upwards because of Mr. Jenkins’s

criminal history and the need to protect the public. These are valid reasons for

varying above the guidelines under § 3553(a)(1) and (a)(2)(C), respectively, and

supported by the record here, including the facts summarized in the PSR. Indeed,

Mr. Jenkins acknowledged that his criminal history could lead to a lengthy sentence.

Mr. Jenkins argues the district court should have offered a longer discussion or

more detail, but he has not shown the explanation it gave was legally insufficient.

District courts must provide “sufficient” reasoning, but “need not necessarily provide

‘extraordinary’ facts to justify any statutorily permissible sentencing variance, even

one as large as the 100% [downward] variance in Gall.” United States v. Smart,

518 F.3d 800, 807 (10th Cir. 2008). Mr. Jenkins criticizes the court for not

discussing factors other than his criminal history, substance use, and dangerousness.

But it was not required to address every § 3553(a) factor. See United States v.

Martinez, 455 F.3d 1127, 1132 (10th Cir. 2006) (“[T]he sentencing court does not

abuse its discretion by failing to mention each of the § 3553(a) factors.”). Although

we agree with Mr. Jenkins that a longer explanation would have been preferable, the

district court identified the factors that led to its sentence and we conclude its

explanation was adequate in the circumstances of this case, even if barely so.

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Mr. Jenkins also objects that the district court failed to explain “why the

guidelines were insufficient” or “how this particular number [72 months] was

sufficient but not greater than necessary.” Aplt. Opening Br. at 15. But the district

court’s explanation makes clear that it found a guidelines sentence insufficient

because it considered Mr. Jenkins a danger to the public. Mr. Jenkins does not cite

any authority that required the court to detail how it chose a specific length of

incarceration. The length of the sentence was statutorily permissible and not so long

that it required further explanation, given the straightforward issues raised. Cf. Rita,

551 U.S. at 356 (concluding brief explanation of within-guidelines sentence was

sufficient where the arguments were “straightforward” and “conceptually simple”).

Further, Mr. Jenkins argues the district court “may have relied on the

unadjudicated conduct” of the alleged domestic assault and kidnapping, but “made no

mention of it.” Aplt. Opening Br. at 14 (emphasis added). We do not see a

procedural error here either. Mr. Jenkins argued the district court should not vary

upwards based on the alleged assault and kidnapping, facts which relate to the

“nature and circumstances of the offense,” § 3553(a)(1). The court then explained it

was varying upwards based on Mr. Jenkins’s criminal history, which relates to “the

history and characteristics of the defendant,” § 3553(a)(1), and the need “to protect

the public from further crimes of the defendant,” § 3553(2)(C). It did not raise the

circumstances of the offense. Mr. Jenkins has not cited authority that required the

district court to address factors it did not rely on. To the contrary, district courts are

not required to “march through § 3553(a)’s sentencing factors.” See United States v.

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McClaflin, 939 F.3d 1113, 1121 (10th Cir. 2019) (quoting United States v. Rines,

419 F.3d 1104, 1107 (10th Cir. 2005)). We will not reverse based on Mr. Jenkins’s

supposition that the district court unduly relied on the circumstances of the offense,

but without mentioning them.

Last, we address whether reversal is warranted because the district court did

not specifically address each of Mr. Jenkins’s arguments. “When a district court has

varied upwards from the Guidelines, our cases have generally required the district

court to specifically address and reject the arguments the defendant made for a more

lenient sentence.” United States v. Wireman, 849 F.3d 956, 962–63 (10th Cir. 2017).

Mr. Jenkins argued for a within-guidelines sentence based on his personal history, the

circumstances of the offense, and studies suggesting longer sentences do not deter

future crimes. The district court did not specifically address and reject his

arguments. That omission could constitute procedural error. See United States v.

Lente, 647 F.3d 1021, 1035, 1037 (10th Cir. 2011) (reversing where district court

varied upwards without addressing defendant’s material non-frivolous arguments

related to § 3553(a) factors).

However, we do not resolve whether the district court was required to more

specifically address each of Mr. Jenkins’s arguments, because we conclude he has

waived a claim of procedural error on this basis. “[C]ursory statements, without

supporting analysis and case law, fail to constitute the kind of briefing that is

necessary to avoid application of the forfeiture doctrine.” Bronson v. Swensen,

500 F.3d 1099, 1105 (10th Cir. 2007). The section of Mr. Jenkins’s brief arguing

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procedural errors is minimal. He argues the district court “failed . . . to provide

sufficient reasoning” and “did not discuss how the different [§] 3553(a) factors

weighed in its analysis.” Aplt. Opening Br. at 19. He contends its “sparse

comments” did not justify its sentence. Id. at 19–20. But he does not argue the

failure to address his arguments was itself a procedural error, and he does not cite

authority that would support such an argument.1

In his argument on substantive reasonableness, Mr. Jenkins does point out that

the district court did not specifically address his arguments. See id. at 14, 15. But

even incorporating those points into his procedural argument, he has not claimed this

failure was itself a procedural error or cited authority that would support such a

claim. At bottom, his argument is that the district court inadequately justified its

upward variance. See id. at 16 (arguing “[t]here were no comments or findings . . . to

ensure the justification was sufficiently compelling . . . .” (internal quotation marks

and brackets omitted)). Under our case law, we understand that argument as a

challenge to substantive reasonableness. See Lente, 647 F.3d at 1031 (“A challenge

to the sufficiency of the justifications for the sentence is a substantive reasonableness

challenge.”). We therefore conclude Mr. Jenkins waived any argument based on the

procedural requirement for the district court to specifically reject his arguments.

1 Mr. Jenkins does cite Cookson and United States v. Pinson, 542 F.3d 822 (10th Cir. 2008), both of which state the requirement for a district court to address a defendant’s material non-frivolous arguments. See Cookson, 922 F.3d at 1091; Pinson, 542 F.3d at 833. But he cites only to other portions of the opinions, to support different propositions of law. See Aplt. Opening Br. at 13, 19.

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To be clear, this conclusion is a close call, especially given the “unavoidable

overlap” between procedural and substantive reasonableness. United States v.

Barnes, 890 F.3d 910, 917 (10th Cir. 2018). But in this case we will heed our own

direction to “avoid unduly blurring the line” between the two. Id. Mr. Jenkins

advances a substantive reasonableness argument, that the district court should have

chosen a shorter sentence based on his arguments. He does not make, or support with

authority, the procedural argument, that the district court was required to address and

reject each of his § 3553(a) arguments. Because “we cannot make arguments for

[him],” we treat that procedural argument as waived. In re Syngenta AG MIR 162

Corn Litig., 111 F.4th 1095, 1112 (10th Cir. 2024) (internal quotation marks

omitted); see also United States v. Walker, 918 F.3d 1134, 1151, 1152 (10th Cir.

2019) (stating arguments advanced only in a perfunctory manner” may be deemed

waived; holding the government waived a substantive reasonableness challenge by

providing only “skeletal briefing” (internal quotation marks omitted)); United States

v. Wilfong, 551 F.3d 1182, 1188 (10th Cir. 2008) (concluding defendant waived

challenge to reasonableness of above-guidelines sentence because he “[did] not cite

any authority, nor give any discussion beyond simply listing the ways in which (he

believes) the district court abused its discretion”); Fed. R. App. P. 28(a)(8)(A)

(requiring appellant to cite authorities on which he relies).

B. Substantive Reasonableness

In reviewing the substantive reasonableness of a sentence, we apply a

deferential abuse of discretion standard and “uphold even substantial variances when

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the district court properly weighs the § 3553(a) factors and offers valid reasons for

the chosen sentence.” Barnes, 890 F.3d at 916. We reverse “only if the sentence

imposed was arbitrary, capricious, whimsical, or manifestly unreasonable, or if the

district court exceeded the bounds of permissible choice, given the facts and the

applicable law in the case at hand.” United States v. McCrary, 43 F.4th 1239, 1249

(10th Cir. 2022) (internal quotation marks omitted). “We do not reweigh the § 3553

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.”

Id. (internal quotation marks and brackets omitted).

If the district court varies above the guidelines, we “may consider the extent of

the deviation, but must 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. We use the district court’s explanation “to assist us in determining whether [it]

abused its discretion in weighing the § 3553(a) factors.” Cookson, 922 F.3d at 1092

(internal quotation marks omitted). However, the district court need not give equal

weight to each factor, and we defer to how it weighed the facts. See id. at 1094.

Given our deferential review, we cannot say Mr. Jenkins’s sentence was

substantively unreasonable. Although he emphasizes that his sentence was nearly

twice the top of the guidelines range, an above-guidelines sentence is not presumed

to be unreasonable. Id. at 1090. Similarly, the percentage of the variance does not

by itself show the sentence was unreasonable. See Gall, 552 U.S. at 47–48 (stating

“deviations . . . always appear more extreme—in percentage terms—when the

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[guidelines] range itself is low”); United States v. Huckins, 529 F.3d 1312, 1317–18

(10th Cir. 2008) (stating we do not “mathematically calculate the percentage

variance . . . and use that percentage as the standard for determining the strength of

the justifications required” (internal quotation marks omitted)); see also McCrary,

43 F.4th at 1249 (concluding a sentence “four times as long as the high end of [the

guidelines] range” was not substantively unreasonable).

Here, the district court imposed an above-guidelines sentence because it

concluded Mr. Jenkins posed a danger to the public based on his criminal history,

which includes past convictions for unlawful gun possession tied to violent acts.

Mr. Jenkins does not challenge that assessment of his criminal history; he instead

asks us to give greater weight to other factors. Doing so would be contrary to our

appellate role. See McCrary, 43 F.4th at 1249. Because the district court’s weighing

of the § 3553(a) factors was not manifestly unreasonable and its sentence did not

exceed the bounds of permissible choice, it was not substantively unreasonable. See

Barnes, 890 F.3d at 915; see also, e.g., Gross, 44 F.4th at 1301, 1305 (affirming

variance from 71-month top of guidelines range to 120-month statutory maximum

based on criminal history); United States v. Pinson, 542 F.3d 822, 836, 837 (10th Cir.

2008) (affirming “unusually large” upward variance imposed because of the “district

court’s belief that [the defendant] posed a danger to the public,” despite noting “some

qualms” about the sentence on appeal).

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III. Conclusion

We affirm the district court’s sentence and judgment.

Entered for the Court

Gregory A. Phillips Circuit Judge