United States v. Prince

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 26, 2024
• Docket: 23-6144
• Status: Unpublished

Opinion

Appellate Case: 23-6144 Document: 010111085544 Date Filed: 07/26/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 26, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6144 (D.C. No. 5:21-CR-00349-F-1) JASON RAY PRINCE, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Jason Prince appeals the district court’s imposition of a 12-month sentence of

imprisonment after he pleaded guilty to possession of firearms while subject to a

protective order in violation of 18 U.S.C. § 922(g)(8). We have jurisdiction under

18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm.

Mr. Prince possessed eleven rifles and two handguns at his residence. A grand

jury returned a two-count indictment for (1) possession of firearms while subject to a

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-6144 Document: 010111085544 Date Filed: 07/26/2024 Page: 2

protective order, see 18 U.S.C. § 922(g)(8), and (2) possession of firearms by a

person convicted of misdemeanor domestic violence, see id. § 922(g)(9). He pleaded

guilty to count 1, and the government dismissed count 2.

The United States Probation Department issued a presentence investigation

report (PSR). The PSR calculated an advisory range under the United States

Sentencing Guidelines (U.S.S.G.) of 24 to 30 months’ imprisonment. The Probation

Department declined to apply U.S.S.G. § 2K2.1(b)(2) in the PSR, which decreases

the offense level “[i]f the defendant . . . possessed all ammunition and firearms solely

for lawful sporting purposes or collection, and did not unlawfully discharge or

otherwise unlawfully use such firearms or ammunition,” but it nonetheless advised

that if the district court did apply § 2K2.1(b)(2), Mr. Prince’s resulting Guidelines

range would be 0 to 6 months’ imprisonment.

At sentencing, the United States agreed with Mr. Prince that § 2K2.1(b)(2)

should apply, and the court applied it, thereby reducing the sentencing Guidelines

range to 0 to 6 months. But, in considering the factors in 18 U.S.C. § 3553(a), the

court concluded an upward variance was appropriate. The court therefore sentenced

Mr. Prince to 12 months’ imprisonment. This timely appeal followed.1

1 Mr. Prince waived his appellate rights as to his conviction and sentence in his plea agreement, but he expressly reserved his “right to appeal specifically the substantive reasonableness of [his] sentence” if, as here, “the sentence is above the advisory Guidelines range determined by the Court to apply to [his] case.” R. vol. 1 at 35–36.

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“We review the substantive reasonableness of a sentence for abuse of

discretion.” United States v. Kaspereit, 994 F.3d 1202, 1207 (10th Cir 2021). Under

this standard of review, “we will give substantial deference to the district court’s

determination and overturn a sentence as substantively unreasonable only if it is

arbitrary, capricious, whimsical, or manifestly unjust.” Id.

Mr. Prince argues his sentence is substantively unreasonable. He emphasizes

that his possession of firearms was for sporting purposes or collection, the conduct

leading to the protective orders that made it illegal for him to possess firearms was

from long ago, and his 12-month sentence is twice the length of the maximum

sentence applicable to him under the Guidelines. But the record shows the district

court already considered Mr. Prince’s entreaties for leniency along these lines. To

the extent it applied § 2K2.1(b)(2), it agreed with Mr. Prince’s arguments. And

although Mr. Prince characterizes his sentence as a major variance to “twice the

maximum [G]uidelines sentence,” Aplt. Opening Br. at 6, “deviations from the

Guidelines range will always appear more extreme—in percentage terms—when the

range itself is low.” Gall v. United States, 552 U.S. 38, 47–48 (2007). We cannot,

on this record, conclude the district court’s sentence was “arbitrary, capricious,

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whimsical, or manifestly unjust,” Kaspereit, 994 F.3d at 1207, so we affirm its

judgment.

Entered for the Court

Allison H. Eid Circuit Judge