Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 23, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-5093 (D.C. No. 4:24-CR-00107-SEH-1) BRANDON EARL PRESLEY, (N.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges. ** _________________________________
Defendant Brandon Earl Presley pleaded guilty without a plea agreement to two
counts of sexual abuse of a minor in Indian Country in violation of 18 U.S.C. §§ 1151,
1153, and 2243(a), two counts of abusive sexual contact with a minor in Indian Country
in violation of 18 U.S.C. §§ 1151, 1153, and 2244(a)(3), one count of production of
child pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e), and one count of
possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
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. Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 2
2252(b)(2). The probation office calculated Defendant’s advisory guideline range to
be 262 to 327 months’ imprisonment based on an adjusted offense level of 39 and a
criminal history category I. The district court denied Defendant’s motion for a
downward variance and sentenced him to 180 months’ imprisonment per count on the
first and sixth counts, 24 months’ imprisonment per count on the second and third
counts, 264 months’ imprisonment on the fourth count, and 120 months’ imprisonment
on the fifth count, with all sentences to run concurrently for a total of 264 months’
imprisonment. Defendant appeals, challenging only the substantive reasonableness of
his within-guideline-range sentence. Our jurisdiction arises under 18 U.S.C.
§ 3741(a)(1) and 28 U.S.C. § 1291. We affirm.
I.
Defendant has never objected to the facts contained in his presentence report
(PSR) or the calculation of his guideline range. According to the PSR, between 2019
and 2024 while an assistant high school football coach, Defendant, a member of the
Muscogee Creek Nation, sexually abused multiple female victims between the ages of
13 and 15. During this time, Defendant was between the ages of 24 and 29. After
initiating contact with his victims, Defendant communicated with them over digital
messaging applications and discussed topics of a sexual nature. Eventually, Defendant
would persuade his victims to meet with him and engage in sexual acts. Defendant’s
first victim was MV1, then a 15 year old student at the high school where Defendant
was employed. On two occasions, Defendant had MV1 perform oral sex on him in her
home. On one of these occasions, Defendant also penetrated MV1’s vagina with his
2 Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 3
penis. On another occasion, MV1 touched Defendant’s penis and performed oral sex
on him while in his vehicle. A second victim, MV2, was 13 years old when Defendant
sexually abused her. During one encounter while in his vehicle, she sat on Defendant’s
lap against his erect penis for around fifteen minutes while he grabbed her thighs.
Defendant tried to kiss MV2 on her lips but she pulled away. Defendant told MV2 she
could touch his penis and asked if she was ready to have sex. She declined. A third
victim, MV3, was also 13 years old when Defendant sexually abused her. On one
occasion inside MV3’s residence, Defendant took her shirt and pants off. While MV3
performed oral sex on him, Defendant used his smartphone to take a picture of her in
the act. On the same occasion, Defendant inserted his penis into MV3’s vagina.
Shortly after this episode, local police arrested Defendant for sexually abusing a 14
year old girl at a high school track meet. Police seized Defendant’s phone, searched
it, and discovered the picture he took of MV3 performing oral sex on him.
At sentencing, Defendant moved for a variance below his advisory guideline
range because the severity of the range was due entirely to the guidelines’ treatment of
the production of child pornography charge which required a 15-year mandatory
minimum sentence and raised Defendant’s offense level by over 10 levels. Pointing
out that the reason for the mandatory minimum and elevated guideline range was “one
photo” that Defendant never accessed after he took it, Defendant asked for a sentence
of 180-months’ or 15 years’ imprisonment. The district court denied Defendant’s
motion for a variance, finding nothing “that separates this defendant from the mine run
of similarly situated defendants to a degree which warrants a variance.” Sentencing
3 Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 4
Transcript at 28. The court explained that “the defendant’s utilization of his position
of authority, influence, and trust to facilitate the commission and concealment of his
crimes, the vulnerability of his victims, and the repetitive nature of his conduct with
multiple minor victims under age 16 warrants a sentence within the advisory guideline
range.” Id. The court expressly addressed Defendant’s arguments for a downward
variance based on the nature of the production of child pornography charge as well as
his lack of any criminal history, and decided his arguments “fail to mitigate the severity
of his conduct.” Id. Considering the § 3553(a) factors, the district court determined
that “a sentence within the advisory guideline range will serve as an adequate deterrent
to this defendant as well as others, promote respect for the law, provide just punishment
for the offense and provide protection for the public.” 1 Id. at 29.
II
On appeal, Defendant claims the district court’s sentence was substantively
unreasonable, raising the same arguments for a downward variance that he did in the
district court.
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Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 23, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-5093 (D.C. No. 4:24-CR-00107-SEH-1) BRANDON EARL PRESLEY, (N.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges. ** _________________________________
Defendant Brandon Earl Presley pleaded guilty without a plea agreement to two
counts of sexual abuse of a minor in Indian Country in violation of 18 U.S.C. §§ 1151,
1153, and 2243(a), two counts of abusive sexual contact with a minor in Indian Country
in violation of 18 U.S.C. §§ 1151, 1153, and 2244(a)(3), one count of production of
child pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e), and one count of
possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and
* 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.
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. Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 2
2252(b)(2). The probation office calculated Defendant’s advisory guideline range to
be 262 to 327 months’ imprisonment based on an adjusted offense level of 39 and a
criminal history category I. The district court denied Defendant’s motion for a
downward variance and sentenced him to 180 months’ imprisonment per count on the
first and sixth counts, 24 months’ imprisonment per count on the second and third
counts, 264 months’ imprisonment on the fourth count, and 120 months’ imprisonment
on the fifth count, with all sentences to run concurrently for a total of 264 months’
imprisonment. Defendant appeals, challenging only the substantive reasonableness of
his within-guideline-range sentence. Our jurisdiction arises under 18 U.S.C.
§ 3741(a)(1) and 28 U.S.C. § 1291. We affirm.
I.
Defendant has never objected to the facts contained in his presentence report
(PSR) or the calculation of his guideline range. According to the PSR, between 2019
and 2024 while an assistant high school football coach, Defendant, a member of the
Muscogee Creek Nation, sexually abused multiple female victims between the ages of
13 and 15. During this time, Defendant was between the ages of 24 and 29. After
initiating contact with his victims, Defendant communicated with them over digital
messaging applications and discussed topics of a sexual nature. Eventually, Defendant
would persuade his victims to meet with him and engage in sexual acts. Defendant’s
first victim was MV1, then a 15 year old student at the high school where Defendant
was employed. On two occasions, Defendant had MV1 perform oral sex on him in her
home. On one of these occasions, Defendant also penetrated MV1’s vagina with his
2 Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 3
penis. On another occasion, MV1 touched Defendant’s penis and performed oral sex
on him while in his vehicle. A second victim, MV2, was 13 years old when Defendant
sexually abused her. During one encounter while in his vehicle, she sat on Defendant’s
lap against his erect penis for around fifteen minutes while he grabbed her thighs.
Defendant tried to kiss MV2 on her lips but she pulled away. Defendant told MV2 she
could touch his penis and asked if she was ready to have sex. She declined. A third
victim, MV3, was also 13 years old when Defendant sexually abused her. On one
occasion inside MV3’s residence, Defendant took her shirt and pants off. While MV3
performed oral sex on him, Defendant used his smartphone to take a picture of her in
the act. On the same occasion, Defendant inserted his penis into MV3’s vagina.
Shortly after this episode, local police arrested Defendant for sexually abusing a 14
year old girl at a high school track meet. Police seized Defendant’s phone, searched
it, and discovered the picture he took of MV3 performing oral sex on him.
At sentencing, Defendant moved for a variance below his advisory guideline
range because the severity of the range was due entirely to the guidelines’ treatment of
the production of child pornography charge which required a 15-year mandatory
minimum sentence and raised Defendant’s offense level by over 10 levels. Pointing
out that the reason for the mandatory minimum and elevated guideline range was “one
photo” that Defendant never accessed after he took it, Defendant asked for a sentence
of 180-months’ or 15 years’ imprisonment. The district court denied Defendant’s
motion for a variance, finding nothing “that separates this defendant from the mine run
of similarly situated defendants to a degree which warrants a variance.” Sentencing
3 Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 4
Transcript at 28. The court explained that “the defendant’s utilization of his position
of authority, influence, and trust to facilitate the commission and concealment of his
crimes, the vulnerability of his victims, and the repetitive nature of his conduct with
multiple minor victims under age 16 warrants a sentence within the advisory guideline
range.” Id. The court expressly addressed Defendant’s arguments for a downward
variance based on the nature of the production of child pornography charge as well as
his lack of any criminal history, and decided his arguments “fail to mitigate the severity
of his conduct.” Id. Considering the § 3553(a) factors, the district court determined
that “a sentence within the advisory guideline range will serve as an adequate deterrent
to this defendant as well as others, promote respect for the law, provide just punishment
for the offense and provide protection for the public.” 1 Id. at 29.
II
On appeal, Defendant claims the district court’s sentence was substantively
unreasonable, raising the same arguments for a downward variance that he did in the
district court. Defendant points out that “[t]he production and possession [of the child
1 Section 3553(a) requires the district court to consider the following factors, among others, in determining a defendant’s sentence: (1) the nature and circumstances of the offense and the history and characteristics of the defendant, (2) the need for the sentence imposed (a) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, (b) to afford adequate deterrence to criminal conduct, and (c) to protect the public from further crimes of the defendant, (3) the kinds of sentence and the sentence range established for the applicable category of offense committed by the applicable category of defendant established by the guidelines, (4) any pertinent policy statement issued by the Sentencing Commission, and (5) the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a). 4 Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 5
pornography] charges arose from one photograph buried in the cache files on his phone,
which was taken by the phone’s camera and never accessed again. The photograph
was not shared with anyone else and according to discovery . . . [Defendant] never
viewed it after it was taken.” Opening Br. at 2. Given Defendant’s lack of criminal
history and apparently stable lifestyle apart from his crimes, we acknowledge
Defendant’s argument for a variance is colorable. But we nevertheless conclude such
argument falls short of rebutting the appellate presumption of substantive
reasonableness attending a within-guideline-range sentence. See United States v.
McComb, 519 F.3d 1049, 1053–54 (10th Cir. 2007) (Gorsuch, J.).
In McComb we explained that this presumption of reasonableness on appeal is
permissible because when a district court sentences a defendant within the applicable
advisory guideline range, the court “necessarily will have come to the same conclusion
as the Sentencing Commission about the proper sentence for the case at hand. This
concurrence between the Sentencing Commission’s ‘wholesale’ judgment and the
district court’s independent ‘retail’ judgment . . . is strong evidence of the
reasonableness of the ultimate sentence imposed.” Id. at 1053. In United States v.
Angel-Guzman, 506 F.3d 1007, 1013 (10th Cir. 2007), we added: “A sentencing
formula produced by a deliberative, quasi-legislative body, applied to the specific facts
of each case by a competent arbiter, will seldom require correcting.”
Accordingly, to overcome the presumption of reasonableness, Defendant must
show the district court abused the sentencing discretion afforded it by Congress in 18
U.S.C. § 3553. McComb, 519 F.3d at 1053. This is to say that as long as the balance
5 Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 6
struck by the district court in considering the § 3553(a) factors is not arbitrary,
capricious, whimsical, or manifestly unreasonable, we must defer to the court’s
sentence even if we would not have struck the same balance in the first instance.
United States v. McCrary, 43 F.4th 1239, 1249 (10th Cir. 2022). We do not reweigh
the § 3553(a) sentencing factors in a de novo fashion. Id. Rather, we ask whether the
district court’s sentence falls within the range of rationally available choices the facts
and the law at issue can fairly support. Id. This is so because sentencing is “a task
calling on a district court’s unique familiarity with the facts and circumstances of a
case and its judgment in balancing a host of incommensurate and disparate
considerations[.]” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir.
2007) (Gorsuch, J.); see also McComb, 519 F.3d at 1053 (“[T]here are perhaps few
arenas where the range of rationally permissible choices is as large as it is in
sentencing[.]).
Here, Defendant essentially asks us to reweigh the § 3553(a) factors as applied
to his case. But the law does not permit us to do so. We have no choice but to conclude
the length of Defendant’s sentence, though perhaps a result of one misstep, falls within
the range of rational choices available to the district court given all the circumstances
surrounding his sexually abusive conduct. In arriving at an appropriate sentence, the
district court expressly weighed Defendant’s arguments in mitigation of sentence
against several aggravating factors, in particular Defendant’s use of a position of
authority, influence, and trust to facilitate the commission and concealment of his
crimes, the repetitive nature of his crimes, and the vulnerability of his multiple victims
6 Appellate Case: 25-5093 Document: 31-1 Date Filed: 04/23/2026 Page: 7
all under the age of 16. 2 Because Defendant’s sentence falls within the range of
rationally permissible choices available to the district court, the judgment of the district
court is—
AFFIRMED.
Entered for the Court
Bobby R. Baldock Circuit Judge
2 Pointing to national statistics for the five year period between fiscal years 2020 and 2024, Defendant tells us that his 264-month sentence is above the median and average sentences received by offenders with an adjusted offense level of 39 and a criminal history category I. To be sure, § 3353(a)(6) instructs district courts to consider “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3353(a) (emphasis added). We have explained, however, that bare national statistics do not establish a sentencing disparity because they shed no light on the extent to which the sentences that the statistics pertain to involve defendants that are similarly situated to the defendant at bar. United States v. Cortez, 139 F.4th 1146, 1156 (10th Cir. 2025). Here, Defendant fails to show how the circumstances surrounding his crimes are similar to those of the national average. Id. 7