United States v. Killsmany

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 6, 2025
• Docket: 24-2148
• Status: Unpublished

Opinion

Appellate Case: 24-2148 Document: 29-1 Date Filed: 03/06/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS March 6, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-2148 (D.C. No. 2:23-CR-00204-MIS-1) TRAPPER KILLSMANY, a/k/a David (D. N.M.) Goldsmith,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, McHUGH, and FEDERICO, Circuit Judges. _________________________________

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.

Trapper Killsmany pleaded guilty to one count of retaliating against

a federal employee by false claim under 18 U.S.C. § 1521 and was sentenced

* This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 24-2148 Document: 29-1 Date Filed: 03/06/2025 Page: 2

to 27 months of imprisonment followed by two years of supervised release.

On appeal, Killsmany argues that the district court’s sentence was

substantively unreasonable. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm.

I. BACKGROUND

On November 28, 2022, Killsmany filed false liens against seven

Social Security Administration (SSA) employees. These liens were filed in

Catron County, New Mexico, and totaled around $20 million. Killsmany had

a history of filing false liens against SSA employees because of an

unfavorable SSA determination, and he was already enjoined from filing

liens without leave of court by the United States District Court for the

District of Alaska. A grand jury indicted Killsmany for one count of filing a

false claim to retaliate against a federal employee performing their official

duties. He subsequently pleaded guilty.

At sentencing, the district court adopted the factual findings of the

presentence investigation report, which Killsmany did not object to. The

district court calculated Killsmany’s total offense level as 17 and his

criminal history category as I, resulting in a Sentencing Guidelines advisory

range of 24 to 30 months of imprisonment. The Government requested a

sentence of 27 months of imprisonment. Defense counsel acknowledged the

2 Appellate Case: 24-2148 Document: 29-1 Date Filed: 03/06/2025 Page: 3

advisory range but requested a downward variance to 17-to-18 months of

imprisonment.

At sentencing, the district court considered “all the arguments of the

parties,” including Killsmany’s age, personal history, mental and physical

health, and the need to avoid unwarranted sentencing disparities. R. III at

18. It likewise considered all the sentencing factors outlined in 18 U.S.C.

§ 3553(a), “including the nature and circumstances of the offense and the

history and characteristics of the defendant.” Id. With this in mind, the

district court declined to grant a downward variance, and sentenced

Killsmany to 27 months of imprisonment.

II. DISCUSSION

Killsmany’s sole argument on appeal is that his sentence was

substantively unreasonable because he should have received a downward

variance and been sentenced below the guideline range.

An appeal challenging “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. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (citation and

internal quotation marks omitted). “[W]e review the reasonableness of

sentencing decisions, whether inside, just outside, or significantly outside

the Guidelines range, under a deferential abuse-of-discretion standard.” Id.

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(brackets, citation, and internal quotation marks omitted). Abuse of

discretion only exists when a district court “renders a judgment that is

arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quoting

United States v. Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir.

2008)). Further, if “the district court properly considers the relevant

Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable.” United States v. Kristl, 437 F.3d

1050, 1055 (10th Cir. 2006).

Killsmany has not overcome the presumption that his guideline

sentence was reasonable. On appeal, Killsmany raises the following as

reasons why the sentence was unreasonable: (1) the average punishment

for offenses under 18 U.S.C. § 1521 is around 17 months; (2) no one was

actually harmed by the false liens; (3) Killsmany suffers from mental health

issues and delusions; and (4) he is a senior citizen with severe medical

problems. Yet each of these factors, as well as others, was explicitly

considered by the district court at sentencing.

Weighed against these factors, the district court noted a “need to

deter” Killsmany and a “need to protect the public” from him. R. III at 19.

These concerns were tied to Killsmany’s prior filing of false liens and other

past criminal convictions. The court also considered arguments about

sentencing disparity but found “no evidence . . . of a sentencing disparity

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among defendants with similar records who have been found guilty of

similar conduct,” and that even if there was such evidence, a higher

sentence would be “warranted by the facts in this case.” Id. at 19–20.

There is no indication that any of these factors was given an

unreasonable amount of weight, especially when the district court’s

sentence fell within the Guidelines. Indeed, it would not be an abuse of

discretion “even if we would not have struck the same balance in the first

instance.” United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008). It

was reasonable for the district court to balance the relevant factors under

18 U.S.C. § 3553(a) and still conclude that Killsmany was not entitled to a

downward variance.

III. CONCLUSION

For the foregoing reasons, we AFFIRM.

Entered for the Court

Richard E.N. Federico Circuit Judge