United States v. Thompson

Opinion

Appellate Case: 24-6230 Document: 32-1 Date Filed: 05/15/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 15, 2025 _______________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-6230 (D.C. No. 5:24-CR-00161-PRW-1) STEPHEN DAMONT THOMPSON, (W.D. Okla.)

Defendant - Appellant. _______________________________________

ORDER AND JUDGMENT * _______________________________________

Before BACHARACH, MORITZ, and ROSSMAN, Circuit Judges. _______________________________________

This appeal involves the substantive reasonableness of a sentence.

The defendant (Mr. Stephen Thompson) was convicted of possessing

a firearm after a felony conviction, possessing fentanyl with intent to

distribute, and unlawfully possessing a machine gun. 18 U.S.C.

§ 922(g)(1); 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(o). The guideline

* The parties do not request oral argument, and it wouldn’t help us decide the appeal. So we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-6230 Document: 32-1 Date Filed: 05/15/2025 Page: 2

range was 92 to 115 months, but the district court varied upward and

sentenced Mr. Thompson to 180 months.

On appeal, Mr. Thompson argues that this sentence is substantively

unreasonable, relying on his history of mental illness, low risk of

recidivism due to his age, and lighter sentences for similar offenders. To

address these arguments, we apply the abuse-of-discretion standard. United

States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019). Under this standard,

we will reverse the sentence only if it is “arbitrary, capricious, whimsical,

or manifestly unreasonable.” United States v. Pena, 963 F.3d 1016, 1024

(10th Cir. 2020) (quoting United States v. Sayad, 589 F.3d 1110, 1116

(10th Cir. 2009)).

The district court did not abuse its discretion because it

 appropriately considered the known circumstances in light of the statutory factors (18 U.S.C. § 3553(a)) and

 clearly articulated justifiable reasons for deviating from the advisory sentencing range.

See United States v. Valdez, 128 F.4th 1314, 1315 (2025) (acknowledging

that the court can deviate from the guidelines “so long as it offers

significant explanation”). For example, the court relied on the danger from

Mr. Thompson’s acts in

2 Appellate Case: 24-6230 Document: 32-1 Date Filed: 05/15/2025 Page: 3

 driving under the influence, 1

 possessing fentanyl, a “deadly and dangerous drug,” and

 possessing a loaded Glock with a machine-gun switch.

R. vol. 3, at 45. In addition, the court pointed to Mr. Thompson’s extensive

criminal history.

He argues that recidivism was unlikely at his age, pointing to

statistical data from the Sentencing Commission. But he failed to make this

argument in district court or to flag this data. This failure is fatal, for the

court couldn’t abuse its discretion by declining to consider an argument or

data that hadn’t been presented. See United States v. Herrera, 51 F.4th

1226, 1277 (10th Cir. 2022) (stating that “we evaluate the district court’s

exercise of discretion based on the information presented at the time of the

ruling”); United States v. Hernandez, 104 F.4th 755, 762 (10th Cir. 2024)

(stating that “the district court had to exercise its discretion based on the

contentions and information presented”).

1 Mr. Thompson says what happened:

[He] was driving while under the influence of narcotics when he became unresponsive and his vehicle went through a red light and collided with another vehicle. The other vehicle contained an adult and two children.

Appellant’s Opening Br. at 4 (citing R. vol. II, at 33).

3 Appellate Case: 24-6230 Document: 32-1 Date Filed: 05/15/2025 Page: 4

Mr. Thompson also argues that the Sentencing Commission’s data

shows lighter median sentences in similar circumstances. But again,

Mr. Thompson didn’t present this data to the district court; and the court

couldn’t abuse its discretion by disregarding an argument or data that

hadn’t been present. See p. 3, above.

Finally, Mr. Thompson argues that inadequate consideration was

given to his mental-health problems. But the court did consider these

problems, discounting them for two reasons:

1. Mr. Thompson had denied mental-health issues.

2. The only evidence of such problems had consisted of a sibling’s recollection of a diagnosis of schizophrenia, and Mr. Thompson might not even have been aware of this diagnosis.

Given this explanation, we can’t second-guess the district court’s weighing

of Mr. Thompson’s mental-health problems. See United States v. Smart,

518 F.3d 800, 808 (10th Cir. 2008).

For these reasons, we conclude that the 180-month sentence was

substantively reasonable.

Entered for the Court

Robert E. Bacharach Circuit Judge