United States v. Wirfel

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 20, 2024
• Docket: 23-8084
• Status: Unpublished

Opinion

Appellate Case: 23-8084 Document: 45-1 Date Filed: 09/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 20, 2024 _________________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 23-8084 v. (D.C. No. 1:23-CR-00029-SWS-2) (D. Wyo.) TUCKER DONALD WIRFEL,

Defendant - Appellant. ___________________________________________

ORDER AND JUDGMENT * ___________________________________________

Before BACHARACH, McHUGH, and FEDERICO, Circuit Judges. ___________________________________________

Mr. Tucker Wirfel was convicted of possessing fentanyl with the

intent to distribute. For this conviction, the court imposed a prison term of

92 months. Mr. Wirfel challenges that sentence as substantively

unreasonable. We reject this challenge.

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

This order and judgment does not constitute 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. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-8084 Document: 45-1 Date Filed: 09/20/2024 Page: 2

To assess Mr. Wirfel’s argument, we consider whether the district

court abused its discretion. United States v. Walker, 844 F.3d 1253, 1255

(10th Cir. 2017). The court abuses its discretion by imposing a sentence

that is arbitrary, capricious, whimsical, or manifestly unreasonable. United

States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009).

We ordinarily presume that a sentence is reasonable when it falls

within the guideline range. United States v. Alvarez-Bernabe, 626 F.3d

1161, 1165 (10th Cir. 2010). And here the sentence not only fell within the

guideline range, but matched the bottom of that range.

The government had agreed to a lighter sentence when Mr. Wirfel

pleaded guilty based largely on an acceptance of responsibility for the

crime. At that time, the guideline range had been 70 to 87 months and the

government had agreed to vary downward by 13 months. With that

downward variance, the prison sentence would have been 57 months.

But that agreement required approval from the court, and the court

waited for a presentence report before deciding the suitability of a

downward variance of 13 months. So the court directed the probation office

to prepare a report and released Mr. Wirfel until the sentencing. While

Mr. Wirfel was on release, he had two obligations: (1) to obey the law and

(2) to abstain from using controlled substances.

He violated both obligations. While on release, Mr. Wirfel solicited a

purchase of fentanyl and commented that he had six buyers lined up.

2 Appellate Case: 23-8084 Document: 45-1 Date Filed: 09/20/2024 Page: 3

Mr. Wirfel’s continuing effort to sell fentanyl led the district court to order

a new presentence report, and the new report removed the prior credit for

acceptance of responsibility. Without that credit, the guideline range

increased to 92–115 months. With the longer guideline range and

Mr. Wirfel’s continued effort to sell fentanyl, the court imposed a sentence

of 92 months.

The 92-month sentence was presumptively reasonable because it fell

within the guideline range. United States v. Ware, 93 F.4th 1175, 1180

(10th Cir. 2024). But Mr. Wirfel could rebut that presumption based on the

other statutory sentencing factors. 18 U.S.C. § 3553(a); see Ware, 93 F.4th

at 1180.

To rebut the presumption of reasonableness, Mr. Wirfel focuses on

two of the statutory sentencing factors: (1) his own characteristics and (2)

the need to promote rehabilitation. 18 U.S.C. § 3553(a)(1), (a)(2)(D).

Through this focus, Mr. Wirfel argues that the sentence undermined the

potential for rehabilitation in light of his addiction, struggles with mental

health, and willingness to take responsibility for his conduct.

The district court might have relied on these arguments to sentence

Mr. Wirfel to a lighter prison term. But the court didn’t abuse its discretion

in rejecting these arguments and focusing on incapacitation rather than

rehabilitation. After all, Mr. Wirfel had obtained inpatient treatment three

times before trying again to sell fentanyl.

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The court faced a difficult task: determining the appropriate

sentence for a defendant powerless to conquer his addiction to fentanyl. In

making that determination, district judges could reasonably differ in how

they balanced the sentencing factors. In this case, the court weighed the

factors and imposed a sentence at the bottom of the guideline range. That

sentence is presumptively reasonable, and Mr. Wirfel has not rebutted that

presumption or shown an abuse of discretion. So we affirm the 92-month

sentence.

Entered for the Court

Robert E. Bacharach Circuit Judge