United States v. Nissen

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 14, 2022
• Docket: 21-2079
• Status: Unpublished

Opinion

Appellate Case: 21-2079 Document: 010110644521 Date Filed: 02/14/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 14, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-2079 (D.C. No. 1:19-CR-00077-JB-SMV-1) MICHAEL NISSEN, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, MURPHY, and EID, Circuit Judges. _________________________________

A jury convicted Michael Nissen of two counts of transmitting threats in

interstate commerce. After the trial, Nissen moved for a downward sentencing

variance.1 He argued this was appropriate because he suffers from mental health

issues and is not violent. The district court rejected Nissen’s request and imposed a

forty-one-month sentence and three years of supervised release. Nissen argues that

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 The Sentencing Guidelines provide an advisory sentencing range of 41–51 months of imprisonment for Nissen’s convictions and criminal-history category. Appellate Case: 21-2079 Document: 010110644521 Date Filed: 02/14/2022 Page: 2

the district court erred in denying his request because his sentence is substantially

longer than necessary under 18 U.S.C. § 3553(a).

As Nissen acknowledges on appeal, we review a district court’s denial of a

motion for a downward sentencing variance for abuse of discretion. See United States

v. Barnes, 890 F.3d 910, 915–16 (10th Cir. 2018). But while Nissen believes his

sentence is excessive, there is no legal error in the district court’s analysis under the

relevant standard of review. See United States v. Naramor, 726 F.3d 1160, 1171–72

(10th Cir. 2013) (an abuse of discretion occurs if a sentence is “arbitrary, capricious,

whimsical, or manifestly unreasonable”). At bottom, Nissen’s sentence stems from

the seriousness of his crimes: specific threats to shoot and kill law-enforcement

officials. The district court considered his mental health issues and imposed a

sentence at the low end of the Sentencing Guidelines’ recommended range. The

decision was within the district court’s discretion. See United States v. Ivory, 532

F.3d 1095, 1107 (10th Cir. 2008) (a sentence within the Guidelines range is

presumptively reasonable on appeal). Thus, exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm the district court’s judgment.

Entered for the Court

Gregory A. Phillips Circuit Judge