United States v. Whitmore

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 19, 2024
• Docket: 23-6208
• Status: Unpublished

Opinion

Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 19, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6208 (D.C. No. 5:23-CR-00204-R-1) LUCAS WHITMORE, a/k/a Lucas (W.D. Okla.) Whitemore,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, KELLY, and EID, Circuit Judges. _________________________________

Lucas Whitmore appeals his 60-month sentence imposed in his conviction for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

I. Background

In a span of approximately four months, Mr. Whitmore was arrested three

times while illegally possessing a firearm. During a traffic stop in October 2022, he

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 2

appeared to be intoxicated and an inventory search of his car discovered a loaded

pistol. In December 2022, a witness reported that Mr. Whitmore had fired multiple

rounds into the ground during an argument with a woman. Officers recovered four

spent shell casings at that scene. A short time later, when officers stopped him,

Mr. Whitmore once again appeared to be intoxicated. Officers found another loaded

pistol in his car, which was later matched to the four recovered shell casings. In

February 2023, citizens reported a vehicle speeding down the wrong side of the

highway. That vehicle eventually crashed. When officers arrived at the scene, they

found Mr. Whitmore attempting to hide just off the roadway. He once again

appeared to be intoxicated. Although Mr. Whitmore claimed he had not been

driving, the keys to the crashed vehicle were in his pocket. A search of his vehicle

uncovered a third loaded pistol and a loaded magazine.

Mr. Whitmore was charged in federal court with being a felon in possession of

a firearm based on the December 2022 incident.1 He pleaded guilty. A probation

officer prepared a presentence report (PSR) that calculated Mr. Whitmore’s total

offense level as 19 and his criminal history score as 6, placing him in criminal history

category III. His previous convictions included kidnapping, racketeering involving

violent acts, and conspiracy to distribute a controlled substance. The PSR also noted

that, while on federal supervised release in 2018, 2019, and 2020, Mr. Whitmore was

subject to eight violation reports, including for drug use.

1 The State of Oklahoma also charged Mr. Whitmore with possessing the firearms and driving under the influence of alcohol. 2 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 3

The PSR calculated Mr. Whitmore’s guideline sentencing range as 37 to 46

months’ imprisonment. But it noted that the district court may wish to vary upward

from that range, citing the following: (1) Mr. Whitmore’s reckless discharge of a

firearm during the offense, which was not accounted for in the guidelines calculation,

and (2) an adequate reflection of the need to protect the public from further criminal

conduct by Mr. Whitmore and to deter him from future criminal activity. The PSR

cited United States Sentencing Commission statistics indicating that firearms

offenders with Mr. Whitmore’s criminal history category and in his age group have a

recidivism rate above 60%2 and that he had possessed a firearm on three separate

occasions between October 2022 and February 2023.

Mr. Whitmore filed a sentencing memorandum and objected to an upward

variance as proposed in the PSR. At the sentencing hearing, defense counsel

acknowledged the district court may be concerned by Mr. Whitmore’s discharge of a

firearm and his multiple DUI offenses, but he asked the court to impose a sentence

within the guidelines range. Defense counsel explained that Mr. Whitmore possessed

firearms out of a concern for his safety and asserted that he had endangered no one

by firing the gun. He also noted Mr. Whitmore’s rough upbringing, his supportive

family, his intervals of productive, law-abiding conduct, and his post-release business

plans. Defense counsel indicated that Mr. Whitmore was open to treatment for his

2 The PSR stated that firearms offenders with a criminal history category of III, like Mr. Whitmore, have a 69.6% recidivism rate, and those who are between the ages of 40 and 49 years upon release have a 64% recidivism rate. Mr. Whitmore was 45 at the time the PSR was prepared. 3 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 4

excessive drinking and urged that an above-guidelines sentence was not necessary in

light of Mr. Whitmore’s past conduct and contributions, his quick acceptance of

responsibility in this case, and the conditions that would be imposed during his

supervised release.

Mr. Whitmore apologized for his bad decisions, explained why he feared for

his safety, indicated he wanted to set a better example for his children, and asked the

court for leniency. In response to the district court’s inquiry, he stated that he had

obtained the three guns from people he knew.

The government acknowledged Mr. Whitmore’s concern for his safety but

asked the district court to sentence him at the top of the guidelines range given the

combination of his drinking, repeated possession of firearms, and discharge of a

firearm.

The district court adopted the PSR without change. Varying upward from the

guidelines sentencing range, the court sentenced Mr. Whitmore to 60 months’

imprisonment. The court stated it had considered the PSR, Mr. Whitmore’s

sentencing memorandum, and his and the government’s statements at the sentencing

hearing. It explained the sentence as follows:

I’ve gone back and reviewed your history from the docket sheet. You know, this is a sad case because . . . you are intelligent. You’re hard-working. You . . . didn’t have a lot of breaks going on. Obviously, you were raised in an environment that was . . . not good, but your history is one of . . . drugs and violence and alcohol.

4 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 5

And . . . these latest incidents -- it’s just fortunate that nobody was . . . killed or badly injured. They . . . weren’t, but they very easily could have been. And, when I consider the sentencing factors set forth in 18 U.S. Code 3553, I agree with the probation office that a variance upward is appropriate just for the protection of society, to make sure that nobody is injured. And, hopefully, when you get out, you can go back and be a productive member of society and get a job and . . . take care of your family, but right now I just think it’s too dangerous. R., Vol. 3 at 37-38. In the written statement of reasons for the sentence, the district

court checked the box for protection of the public from further crimes of the

defendant, 18 U.S.C. § 3553(a)(2)(C), as the reason for the variance and further

stated that it had considered Mr. Whitmore’s “criminal history and the nature and

circumstances of the offense.” R., Vol. 2 at 44.

Mr. Whitmore appeals, arguing his 60-month sentence is substantively

unreasonable.

II. Discussion

A. Standard of Review and Legal Background

We review the district court’s decision to impose a variant sentence for an

abuse of discretion. See United States v. Smart, 518 F.3d 800, 802 (10th Cir. 2008);

see id. at 806 (“[W]e now review all sentences—whether inside, just outside, or

significantly outside the Guidelines range—under a deferential abuse-of-discretion

standard.” (internal quotation marks omitted)). Because of the district courts’

“institutional experience of imposing large numbers of sentences,” “our standard of

review must . . . giv[e] both formal and practical deference to the sentencing court’s

5 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 6

assessment of the facts under § 3553(a).” Id. at 807. A sentencing court abuses its

discretion if “the sentence is arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. Durham, 902 F.3d 1180, 1236 (10th Cir. 2018)

(internal quotation marks omitted). But “we will defer to the district court’s

judgment so long as it falls within the realm of rationally available choices.” Id.

(ellipsis and internal quotation marks omitted).

In imposing a sentence, the district court “shall consider” the factors listed in

§ 3553(a). 18 U.S.C. § 3553(a). The statutory factors address:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, (c) incapacitation, and (d) rehabilitation; (3) the kinds of sentences available; (4) the Sentencing Commission Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted sentencing disparities; and (7) the need for restitution. United States v. Cookson, 922 F.3d 1079, 1092 (10th Cir. 2019) (citation and internal

quotation marks omitted). A court may impose any sentence that is reasonable under

these seven factors. Smart, 518 F.3d at 803. On appeal, our reasonableness review

includes “a substantive component, which relates to the length of the resulting

sentence.” Id.3 “[W]e focus on whether the length of the sentence is reasonable

given all the circumstances of the case in light of the [§ 3553(a)] factors.” Cookson,

922 F.3d at 1091 (internal quotation marks omitted). The district court must provide

3 We may also review a sentence for procedural error—“the method by which a sentence was calculated”—such as failing to adequately explain a sentence or failing to consider the statutory sentencing factors. Smart, 518 F.3d at 803. Mr. Whitmore does not raise procedural error on appeal. 6 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 7

sufficient reasoning to support a variance. Smart, 518 F.3d at 807. And while the

degree of a variance is relevant to our analysis, a variance need not be based on

extraordinary facts. Id. Moreover, our disagreement with the district court’s

weighing of the facts will not support an abuse-of-discretion holding. Id. at 808.

B. Mr. Whitmore’s Contentions

Mr. Whitmore argues his 60-month above-guidelines sentence, which he

asserts includes a significant variance, is substantively unreasonable because the

district court relied on a single sentencing factor—the protection of the public from

further crimes by Mr. Whitmore, see § 3553(a)(2)(C)—while downplaying and

failing to give the proper weight and consideration to the mitigating factors raised by

defense counsel. We disagree that the district court relied on a single sentencing

factor. We also do not read the court’s decision as downplaying mitigating factors

rather than weighing them against other factors.

The court began its explanation of the sentence by stating it had considered the

PSR, Mr. Whitmore’s sentencing memorandum, and the parties’ statements at the

sentencing hearing.4 It indicated it had also reviewed Mr. Whitmore’s criminal

history.5 The court then discussed both positive and negative aspects of

4 The district court confirmed during the sentencing hearing that it had read and understood the portion of Mr. Whitmore’s sentencing memorandum explaining why he was concerned about his safety. 5 As noted, that history included convictions for kidnapping, racketeering involving violent acts, and conspiracy to distribute a controlled substance, as well as numerous violations of conditions of his federal supervised release between 2018 and 2020. 7 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 8

Mr. Whitmore’s history and characteristics. See § 3553(a)(1). It noted his difficult

childhood and that he is both intelligent and hardworking. The court found these

positive equities made the case sad because Mr. Whitmore’s history of drugs,

violence, and alcohol weighed against them. Turning to the circumstances of the

offense and its seriousness, see § 3553(a)(1), (a)(2)(A), the court concluded that

Mr. Whitmore could have killed or badly injured someone and commented that it was

fortunate no one had been hurt. Then the district court addressed the need for the

sentence imposed to afford adequate deterrence and to protect the public from further

crimes by Mr. Whitmore. See § 3553(a)(2)(B), (C).6 The court agreed with the

PSR’s analysis of these issues, which discussed Mr. Whitmore’s reckless discharge

of a firearm, his possession of a firearm on three separate occasions during a short

time period,7 and recidivism statistics for firearms offenders in Mr. Whitmore’s

criminal history and age categories. Finally, in the written statement of reasons, the

district court referenced protection of the public from further crimes, Mr. Whitmore’s

criminal history, and the nature and circumstances of the offense as the bases for the

variance. See § 3553(a)(1), (a)(2)(C).

Thus, we agree with the government that Mr. Whitmore’s characterization of

the district court’s sentencing justification as based entirely on one sentencing factor

6 The deterrence factor in § 3553(a)(2)(B) includes the need to deter the defendant from future crimes. See United States v. Walker, 844 F.3d 1253, 1257 (10th Cir. 2017). 7 Earlier in the sentencing hearing, the district court asked Mr. Whitmore how he was able to obtain three different firearms in four months. 8 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 9

is too narrow. We therefore reject his contention that his 60-month sentence is

unreasonable because the court excessively relied on a single sentencing factor. See

Cookson, 922 F.3d at 1093 (stating “we have cautioned against excessive reliance on

a single factor in sentencing”). To be sure, the district court ultimately gave

considerable weight to protection of the public from further crimes by Mr. Whitmore.

But it is also clear that other factors contributed to the court’s assessment of the

danger he posed. And it had discretion to determine the weight assigned to different

factors. See id. at 1094; see also United States v. DeRusse, 859 F.3d 1232, 1238

(10th Cir. 2017) (rejecting contention “that the district court went outside the wide

range of rationally permissible choices available at sentencing when it decided to

give substantial weight to [a particular] factor in its determination of an appropriate

sentence”). We must defer to that determination, and we cannot accept

Mr. Whitmore’s invitation to reweigh the statutory factors based on his assertion that

the court failed to give the proper weight to mitigating factors. See United States v.

Ware, 93 F.4th 1175, 1181 (10th Cir. 2024); see also United States v. Barnes,

890 F.3d 910, 916 (10th Cir. 2018) (“[N]o algorithm exists that instructs the district

judge how to combine the factors or what weight to put on each one.”).

Mr. Whitmore asserts that the district court failed to articulate how an

above-guidelines sentence was not greater than necessary in light of other

alternatives to combat his alcohol abuse. He faults the court for not discussing

(1) substance abuse classes and driver’s license and vehicle-use restrictions that may

be imposed by the State of Oklahoma, (2) alcohol monitoring and testing as

9 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 10

conditions of supervised release, and (3) his amenability to alcohol-abuse treatment.

We see no abuse of discretion. Whether the State of Oklahoma would, in fact,

impose the cited restrictions and mandatory classes was speculative. And the district

court’s recidivism concerns, as described in the PSR and adopted by the court,

extended beyond Mr. Whitmore’s alcohol abuse to his statistical likelihood, as a

firearms offender, to reoffend based on his age and his criminal history category.

Nor are we persuaded that the extent of the variance—13 months above the

high end of the guidelines range—is unreasonable given the totality of the

circumstances in this case. “[T]he Guidelines range will always appear more

extreme—in percentage terms—when the range itself is low.” Gall v. United States,

552 U.S. 38, 48 (2007). “[W]e uphold even substantial variances when the district

court properly weighs the § 3553(a) factors and offers valid reasons for the chosen

sentence.” Barnes, 890 F.3d at 916 (affirming downward variances in co-defendants’

sentences from a guidelines range of 70 to 87 months to 24 months and 12 months,

id. at 914-15). And “we must give due deference to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 917

(internal quotation marks omitted). The district court expressed concern regarding

Mr. Whitmore’s violent criminal history and the seriousness of his offense conduct.

That conduct included illegal firearms possession, alcohol abuse, and reckless

driving. After his first arrest for possessing a firearm, he possessed a second firearm

and discharged it four times during a confrontation. Still undeterred after his second

arrest for illegal gun possession, he possessed yet another firearm while driving

10 Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 11

intoxicated on the wrong side of the highway and crashed his car. At sentencing,

defense counsel candidly acknowledged that the district court could legitimately be

concerned about Mr. Whitmore’s offense conduct. Combined with the high rate of

recidivism for firearms offenders in Mr. Whitmore’s age and criminal history

categories, we cannot say that the district court’s decision to vary upward and impose

a five-year sentence in this case was unreasonable “given all the circumstances of the

case in light of the [§ 3553(a)] factors,” Cookson, 922 F.3d at 1091 (internal

quotation marks omitted).

Finally, we decline to conclude that the district court’s explanation of

Mr. Whitmore’s sentence was so inadequate that his sentence is substantively

unreasonable. “[T]he content of the district court’s explanation is relevant to whether

the length of the sentence is substantively reasonable.” Barnes, 890 F.3d at 917.

“[W]e rely on the district court’s procedurally-required explanation in order to

conduct meaningful appellate review of a sentence’s substantive reasonableness.”

Cookson, 922 F.3d at 1091 (internal quotation marks omitted). Although the district

court’s explanation of Mr. Whitmore’s sentence was relatively brief, it was sufficient

for this court to conduct meaningful appellate review.

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III. Conclusion

We affirm the district court’s judgment. We grant the alternative relief

requested in Mr. Whitmore’s motion to seal seeking a decision in this appeal that

does not disclose matters that should not be available to the public.

Entered for the Court

Allison H. Eid Circuit Judge