United States v. McGuire

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 7, 2024
• Docket: 23-6145
• Status: Unpublished

Opinion

Appellate Case: 23-6145 Document: 010111061980 Date Filed: 06/07/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 7, 2024

Christopher M. Wolpert _______________________________________ Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6145 (D.C. No. 5:22-CR-00482-F-1) KEVIN BRUCE McGUIRE, (W.D. Okla.)

Defendant - Appellant. _______________________________________

ORDER AND JUDGMENT * _________________________________

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

This appeal involves a challenge to a criminal sentence for Mr. Kevin

McGuire after he killed a man by driving drunk. Mr. McGuire pleaded

guilty to second-degree murder in Indian Country. 18 U.S.C. §§ 1111(a),

1153(a). In return, the government agreed not to recommend a sentence

* We are deciding this appeal based on the briefs and the record because oral argument wouldn’t provide material help. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-6145 Document: 010111061980 Date Filed: 06/07/2024 Page: 2

over 294 months. At sentencing, however, the district court imposed life

imprisonment. Mr. McGuire appeals, arguing that

 the sentence was substantively unreasonable and

 the government breached its agreement.

We reject both arguments and affirm.

1. The sentence was substantively reasonable.

The first issue is whether the sentence was substantively reasonable.

On this issue, we review the district court’s ruling under the abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007).

The district court exercised its discretion largely out of concern over

Mr. McGuire’s seven prior convictions for crimes involving intoxication

while he was driving. Six of the convictions involved driving under the

influence of alcohol; one involved actual physical control of a vehicle

while under the influence of alcohol. Given these convictions, the district

court considered incapacitation necessary for public safety.

Mr. McGuire argues that the district court double-counted his

criminal history and imposed a term greater than necessary to achieve the

statutory purposes. We reject both arguments.

First, Mr. McGuire argues that the district court shouldn’t have

relied on the prior convictions because they had already gone into his score

for criminal history. Mr. McGuire is mistaken. He received no criminal-

history points for six of the seven prior convictions. 2 Appellate Case: 23-6145 Document: 010111061980 Date Filed: 06/07/2024 Page: 3

Second, he argues that life imprisonment was unnecessary to achieve

the statutory purposes. The district court acknowledged that a life sentence

was probably unnecessary to provide adequate deterrence. But the court

concluded that a life sentence was necessary to achieve another statutory

purpose: protection of the public through incapacitation. 18 U.S.C.

§ 3553(a)(2)(C); see United States v. Walker, 844 F.3d 1253, 1258 (10th

Cir. 2017) (stating that “the court had a statutory obligation to consider the

value of incapacitation”).

We might agree or disagree with the weight that the district court

gave to incapacitation. But we generally defer to the weight that the

district court gives to one of the statutory sentencing factors. United States

v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). Such deference is appropriate

here.

Mr. McGuire argues that if he were to spend fifteen years in prison,

he would remain sober. But the district court could reasonably question

Mr. McGuire’s ability to stay sober. The presentence report says that Mr.

McGuire drank daily from the age of 15 to age 60. And his wife reported

that whenever Mr. McGuire finished inpatient treatment, he would

immediately resume drinking. Given this history, the district court could

reasonably consider a life sentence necessary to protect the public. See

United States v. Walker, 844 F.3d 1253, 1259 (10th Cir. 2017) (concluding

that a sentence was too low in part because the district court had focused

3 Appellate Case: 23-6145 Document: 010111061980 Date Filed: 06/07/2024 Page: 4

on the defendant’s “newfound sobriety” and failed to even mention

incapacitation).

2. Mr. McGuire waived his appellate argument involving breach of an agreement.

The government agreed not to recommend a sentence exceeding 294

months. In a presentence memorandum, the government twice asked the

district court to impose a sentence of 294 months. And at the sentencing

itself, the government again requested a sentence of 294 months. The

government ended its request by adding that the court should “fashion[] a

sentence to ensure that another mother and father don’t have to suffer like

the [victim’s family] have suffered, to ensure that another life isn’t lost

like [the victim’s] was lost just because Mr. McGuire once again drove

drunk.” Appellee’s Supp. App’x vol. 1, at 30–31. Mr. McGuire argues that

this statement breached the government’s agreement by implicitly

suggesting a sentence exceeding 294 months.

But Mr. McGuire forfeited this argument by failing to make it in

district court. See United States v. Faunce, 66 F.4th 1244, 1247 (10th Cir.

2023). We can ordinarily consider forfeited arguments under the plain-

error standard. See id. But Mr. McGuire hasn’t requested review for plain

error. So we decline to consider the possibility of plain error. See United

States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019).

4 Appellate Case: 23-6145 Document: 010111061980 Date Filed: 06/07/2024 Page: 5

Affirmed.

Entered for the Court

Robert E. Bacharach Circuit Judge