United States v. Young

Filing 920101025

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT

O c t o b e r 25, 2010

E l i s a b e t h A. Shumaker C l e r k of Court

U N I T E D STATES OF AMERICA, P l a i n t i f f - Appellee, v. D A V I D LEE YOUNG, D e f e n d a n t - Appellant. N o . 09-1326 ( D . Colorado) ( D . C . No. 1:08-CR-00440-JLK-1)

O R D E R AND JUDGMENT * B e f o r e MURPHY, GORSUCH, and HOLMES, Circuit Judges.

A f t e r examining the briefs and appellate record, this court has determined u n a n i mo u s l y that oral argument would not materially assist the determination of t h i s appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we g r a n t the parties' requests and order the case submitted without oral argument.

T h i s order and judgment is not binding precedent except under the d o c t r i n e s of law of the case, res judicata, and collateral estoppel. It may be cited, h o w e v e r , for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th C i r . R. 32.1.

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I . INTRODUCTION A jury convicted David Young of being a felon in possession of a firearm, i n violation of 18 U.S.C. § 922(g)(1). 1 The district court sentenced Young to a t e r m of imprisonment of seventy-six months, a sentence within the range set out i n the advisory Sentencing Guidelines. On appeal to this court, Young challenges b o t h his conviction and sentence. As to his conviction, Young asserts the district c o u r t erred in admitting at trial a tape recording of a telephone conversation he h a d with his sister on December 25, 2008. As to his sentence, Young asserts the f o l l o w i n g three errors: (1) improperly enhancing his offense level four levels p u r s u a n t to U.S.S.G. § 2K2.1(b)(6); (2) improperly enhancing his offense level t w o levels pursuant to U.S.S.G. § 3C1.1; and (3) refusing to vary downward from t h e range set out in the advisory Sentencing Guidelines. This court exercises j u r i s d i c t i o n pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirms t h e district court's judgment. I I . BACKGROUND B o t h parties agree the following summary from the Presentence I n v e s t i g a t i o n Report ("PSR") accurately sets out the factual background of this c a s e , as developed by the evidence adduced by the government at trial:

T h e jury also convicted Young of being a felon in possession of a mmu n i t i o n , in violation of 18 U.S.C. § 922(g)(1). At the government's request, t h e district court dismissed that count.
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1

O n the night of September 25, 2008, and into the early mo r n i n g hours of September 26, Mohamed Bennani was on duty as a s e c u r i t y guard at Club Vinyl, a nightclub in Denver, Colorado. Club V i n y l is located near the intersection of 11th [Avenue] and B r o a d w a y , across the street from an Arby's restaurant. Bennani was s t a t i o n e d outside of the main door, which looks out towards the A r b y ' s parking lot. As part of his duties, Bennani guards not only t h e nightclub, but also the parking lot where many of the club's c u s t o me r s and employees park their automobiles. A t approximately 1:45 a.m. on September 26, Bennani was l o o k i n g towards the Arby's parking lot when he saw a group of p e o p l e gathered near the bus stop in front of the restaurant. The c r o w d suddenly scattered and began to run. As the crowd dispersed, B e n n a n i saw that they were running away from the defendant, David L e e Young. Young was pointing a silver, semiautomatic handgun t o w a r d s the people, or a person, in the dispersing crowd. Young t u c k e d the handgun into his waistband and started to walk away. B e n n a n i radioed his security partner, Howard Ladson, and i n f o r me d him of the situation across the street from the club. Ladson w a s stationed on Broadway, slightly north of Bennani. Ladson l o o k e d towards the Arby's and saw the dispersing crowd. He d e s c r i b e d the scene as the "parting of the Red Sea," or words to that e f f e c t . The crowd appeared to be running away from the defendant, w h o was holding an object in his hand. B e n n a n i gave chase after Young, while Ladson crossed the s t r e e t and went around behind Arby's to cut off the defendant's a v e n u e of escape. Bennani never lost sight of the defendant. He p u r s u e d Young into the parking lot immediately south of the Arby's r e s t a u r a n t . Young ran behind a car and bent down. When Young b e n t down, Bennani could no longer see his hands. Bennani drew his s i d e a r m and ordered Young to walk out from behind the vehicle. Y o u n g attempted to flee, but his escape was cut short when he w a s cut off by Ladson. The security guards handcuffed Young. D a r y l Honor, the security guards' supervisor, arrived as Young was b e i n g taken into custody. After Young had been subdued, Bennani w e n t back to the automobile behind which Young had ducked mo me n t s earlier. Underneath the car, in the exact area where Young
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h a d bent down, Bennani found a silver-colored, semiautomatic h a n d g u n . Its magazine was inserted. Bennani and Honor secured the w e a p o n and flagged down a passing police car. The handgun and the d e f e n d a n t were turned over to Denver police officers. T h e handgun was a Lorcin, 9 mm, semiautomatic firearm. It w a s loaded with 10 rounds of 9 mm ammunition. The firearm was o p e r a t i o n a l and functioned as designed, in that it could expel a p r o j e c t i l e by the action of an explosive. The firearm was ma n u f a c t u r e d in California. Therefore, it traveled in interstate c o mme r c e before coming into the defendant's possession. . . . P r i o r to his possession of the firearm and ammunition on S e p t e mb e r 26, 2008, Young had been previously convicted of a f e l o n y offense punishable by more that one year imprisonment. On J u l y 26, 2007, Young was convicted of felony possession of a c o n t r o l l e d substance, in District Court, County of Denver, State of C o l o r a d o case number 2007CR003743. He was on state probation at t h e time he illegally possessed the firearm . . . . I I I . CHALLENGE TO CONVICTION P r i o r to trial, the government disclosed its intent to introduce into evidence a recorded telephone conversation Young had with his sister on December 25, 2 0 0 8 . At the time of the conversation, Young was housed at the Federal D e t e n t i o n Center in Englewood, Colorado, awaiting trial. During the c o n v e r s a t i o n , Young discussed a recently arrested acquaintance. After indicating t h e acquaintance would be going to jail, Young stated the acquaintance should h a v e "blasted" the police officers that were trying to arrest him. Young then t u r n e d to the first-person, stating "I mean, that's what I was thinking. I should've b l a s t e d them motherf**ing security, homey. Straight up. . . . I should've blasted t h e y ass." The government asserted these statements related to the incident
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g i v i n g rise to Young's arrest and constituted an admission. See Fed. R. Evid. 8 0 1 ( d ) ( 2 ) (providing that an admission of a party-opponent is not hearsay). Y o u n g filed a motion in limine, as well as a supplement thereto, asking the d i s t r i c t court to exclude the recorded conversation as irrelevant under Federal R u l e s of Evidence 401 and 402, and unduly prejudicial under Federal Rule of E v i d e n c e 403. In the alternative, should the district court conclude the c o n v e r s a t i o n was admissible, Young asked the district court to allow him to, inter a l i a , introduce other portions of the December 25th conversation. At a hearing on Y o u n g ' s motion, the district court began by noting it had listened to, and r e v i e w e d a transcript of, the conversation. The district court ruled that the p o r t i o n of the conversation designated by the government was admissible and, in t h e interest of fairness, the entire recording of the conversation could be played f o r the jury. C o n s i s t e n t with its pre-trial statement of intent, the government introduced i n t o evidence at trial a portion of the December 25th conversation. During the d e f e n s e ' s case, Young testified the conversation did not relate to the events on the n i g h t of his arrest. He explained, instead, that the conversation related to a verbal a l t e r c a t i o n he previously had with security officers at the apartment complex w h e r e he lived with his mother and sister. Thereafter, the entire recording of the D e c e mb e r 25th phone conversation was played to the jury.

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Y o u n g asserts the district court erred in admitting into evidence the r e c o r d e d conversation. According to Young, he was "unfairly prejudiced" b e c a u s e the conversation was "irrelevant to the offense as charged" and its a d mi s s i o n "misle[d] the jury in believing that [it] . . . was related to [his] arrest." Appellant's Brief at 15. Thus, Young argues both that the evidence was i r r e l e v a n t and more prejudicial than probative. See Fed. R. Evid. 401, 402, 403. Furthermore, for the first time on appeal, Young argues the admission of the r e c o r d e d conversation is inconsistent with Federal Rule of Evidence 404(b) b e c a u s e it is evidence of other crimes, wrongs, or acts offered to demonstrate his b a d character and action in conformity therewith. A review of the record d e mo n s t r a t e s Young's arguments are without merit and the district court did not e r r in admitting Young's December 25th conversation with his sister. E v i d e n c e is relevant if it has "any tendency to make the existence of any f a c t that is of consequence to the determination of the action more probable or l e s s probable than it would be without the evidence." Fed. R. Evid. 401. Absent s o me contrary rule, "[a]ll relevant evidence is admissible." Fed. R. Evid. 402. T h e determination of whether the evidence is relevant is a matter w i t h i n the sound discretion of the trial court, and we will not disturb t h a t decision on appeal absent a showing of a clear abuse of d i s c r e t i o n . The admission of evidence may constitute an abuse of d i s c r e t i o n only if based on an erroneous conclusion of law, a clearly e r r o n e o u s finding of fact or a manifest error in judgment.

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O w n e r - O p e r a t o r Indep. Drivers Ass'n v. USIS Commercial Servs., Inc., 537 F.3d 1 1 8 4 , 1193 (10th Cir. 2008) (quotations and citation omitted). A l l of Young's arguments about the admissibility of the December 25th c o n v e r s a t i o n revolve around his assertion, made both at the hearing on his motion i n limine and at trial, that the conversation related not to the events surrounding h i s arrest, but instead to an incident involving security guards at his apartment c o mp l e x . Young's mere assertion that the December 25th conversation referred t o events unrelated to the night of his arrest, however, is an insufficient basis to e x c l u d e the conversation. "The bar for admission under Rule 401 is very low. This is because the degree of materiality and probativity necessary for evidence to b e relevant is minimal and must only provide a fact-finder with a basis for making s o me inference, or chain of inferences." United States v. Jordan, 485 F.3d 1214, 1 2 1 8 (10th Cir. 2007) (citation and quotations omitted). T h e December 25th conversation easily satisfies this standard. The sole i s s u e at trial was whether Young possessed a firearm on the night of his arrest. In t h e recorded conversation, Young indicates to his sister that a joint acquaintance s h o u l d have "blasted" the officers trying to arrest him. He then turns immediately t o the first-person and declares he should have "blasted" "security." A reasonable f a c t - f i n d e r could certainly infer from these statements that Young regretted a l l o w i n g himself to be arrested by the security guards outside Club Vinyl and w i s h e d instead that he had shot them and made his escape. This inference makes
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i t far more likely Young possessed the gun found underneath the car where Young w a s observed crouching down just prior to his arrest. This evidence easily s a t i s f i e s the low threshold for admissibility set out in Rule 401. 2 A s the text of Rule 401 makes clear, the December 25th conversation need n o t directly resolve the question of whether Young possessed a gun on the night o f his arrest. Instead, it is enough that the conversation provide the jury "with a b a s i s for making some inference, or chain of inferences." Id. (quotation omitted). As noted above, the jury could reasonably draw an inference from the recorded c o n v e r s a t i o n that Young possessed the weapon found near the spot of his arrest. N o r is the evidence relating to the December 25 conversation unduly p r e j u d i c i a l . See Fed. R. Evid. 403 ("Although relevant, evidence may be e x c l u d e d if its probative value is substantially outweighed by the danger of unfair p r e j u d i c e , confusion of the issues, or misleading the jury . . . ."). Other than his a s s e r t i o n the conversation did not relate to the events on the night of his arrest, t h e sole basis for Young's assertion the conversation should have been excluded u n d e r Rule 403 is that the jury might not have appreciated his frequent use of

F o r this same reason, even assuming it were preserved, Young's assertion t h a t the admission of the recorded conversation violated Rule 404(b) is without me r i t . This assertion is entirely dependent on Young's claim that because the c o n v e r s a t i o n referred to matters unrelated to the events on the night of his arrest i t amounts to evidence of other wrongs in violation of Rule 404(b). Because the g o v e r n me n t never sought to admit the evidence under 404(b) and because the jury c o u l d reasonably conclude the conversation related to the events on the night of Y o u n g ' s arrest, Rule 404(b) is simply not implicated in this case.
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2

e x p l e t i v e s during the conversation. Contrary to Young's assertion, the evidence r e l a t i n g to the recorded conversation did not suggest the jury "render its findings o n an improper basis, commonly . . . an emotional one," or involve " c i r c u ms t a n t i a l evidence [which] would tend to sidetrack the jury into c o n s i d e r a t i o n of factual disputes only tangentially related to the facts at issue in t h e current case." Jordan, 485 F.3d at 1218 (quotations omitted). Instead, the e v i d e n c e went to the very heart of the sole issue before the jury for resolution: w h e t h e r Young possessed a gun on the night of his arrest. The district court quite r e a s o n a b l y concluded the highly probative value of this evidence easily o u t w e i g h e d any slight risk of unfair prejudice flowing from Young's extensive u s e of expletives during the recorded conversation. T h e district court was well within the bounds of its broad discretion in c o n c l u d i n g the December 25th conversation was relevant and that its admission w a s not unduly prejudicial. Accordingly, this court affirms the district court's j u d g me n t of conviction. I V . SENTENCING ISSUES A f t e r the Supreme Court's decision in United States v. Booker, 543 U.S. 2 2 0 (2005), this court reviews sentences for reasonableness. United States v. F r i e d m a n , 554 F.3d 1301, 1307 (10th Cir. 2009). "Reasonableness review is a t w o - s t e p process comprising a procedural and a substantive component." Id. ( q u o t a t i o n omitted). "Review for procedural reasonableness focuses on whether
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t h e district court committed any error in calculating or explaining the sentence." Id. "Review for substantive reasonableness focuses on whether the length of the s e n t e n c e is reasonable given all the circumstances of the case in light of the f a c t o r s set forth in 18 U.S.C. § 3553(a)." Id. (quotation omitted). A . Procedural Reasonableness Y o u n g asserts the district court erred in increasing his offense level two l e v e l s for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, and an additional f o u r levels for possessing the firearm in connection with felony menacing, p u r s u a n t to U.S.S.C. § 2K2.1. A challenge to the application of a sentencing e n h a n c e me n t tests the "procedural reasonableness" of a sentence, "which requires, a mo n g other things, a properly calculated Guidelines range." United States v. C o o k , 550 F.3d 1292, 1295 (10th Cir. 2008) (quotation omitted). Likewise, " [ s ]e l e c t i n g a sentence based on clearly erroneous facts is a procedural error." Id. ( q u o t a t i o n omitted). Accordingly, this court reviews "a district court's legal i n t e r p r e t a t i o n of the Guidelines de novo and its factual findings for clear error." Id. (quotation omitted). In so doing, this court is "mindful of [its] obligation to g i v e due deference to the district [court's] determinations of the credibility of w i t n e s s e s . " United States v. Keeling, 235 F.3d 533, 535 (10th Cir. 2000) ( q u o t a t i o n omitted).

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1 . U.S.S.G. § 3C1.1 I n arriving at Young's offense level, the district court employed the twol e v e l enhancement set out in U.S.S.G. § 3C1.1, concluding Young committed p e r j u r y 3 when he falsely testified at trial that (1) he did not possess the firearm he w a s charged with possessing and (2) he did not wave that firearm at a group of p e o p l e in the Arby's parking lot, causing them to disperse. On appeal, Young a s s e r t s the district court's findings are insufficiently particular to support the a p p l i c a t i o n of § 3C1.1. He further argues the district court erred in applying § 3C1.1's obstruction-of-justice enhancement because the enhancement violates h i s constitutional right to testify on his own behalf at trial. Both contentions lack me r i t . T h i s court first takes up Young's assertion § 3C1.1 is unconstitutional b e c a u s e it interferes with his right to testify. This contention is contrary to b i n d i n g Supreme Court precedent. United States v. Dunnigan, 507 U.S. 87, 96-98 ( 1 9 9 3 ) . In Dunnigan, the Court made clear "a defendant's right to testify does n o t include a right to commit perjury." Id. at 96. "Nor can [a defendant] contend § 3C1.1 is unconstitutional on the simple basis that it distorts [his] decision

U . S . S . G . § 3C1.1 provides for a two-level increase in a defendant's o f f e n s e level if "the defendant willfully obstructed or impeded, or attempted to o b s t r u c t or impede, the administration of justice with respect to the investigation, p r o s e c u t i o n , or sentencing of the instant offense of conviction." "Committing, s u b o r n i n g , or attempting to suborn perjury" is sufficient to trigger the obstruction o f justice enhancement. U.S.S.G. § 3C1.1 cmt. n.4(b).
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3

w h e t h e r to testify or remain silent." Id. This is so, according to the Court, b e c a u s e its "authorities do not impose a categorical ban on every governmental a c t i o n affecting the strategic decisions of an accused, including decisions whether o r not to exercise constitutional rights." Id. In light of Dunnigan, Young's c o n s t i t u t i o n a l challenge to § 3C1.1 necessarily fails. N o r can Young legitimately claim the district court failed to make the n e c e s s a r y findings to support the conclusion he committed perjury when he t e s t i f i e d at trial. Perjury occurs when "[a] witness testifying under oath or a f f i r ma t i o n . . . gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or f a u l t y memory." Id. at 94. The mere fact a defendant testifies he is innocent and i s later found guilty does not automatically warrant a finding of perjury. Id. at 9 5 . Instead, a defendant who testifies under oath commits perjury warranting a § 3C1.1 enhancement only if: (1) the defendant made a false statement under o a t h ; (2) concerning a material matter; (3) with a willful intent to provide false t e s t i mo n y . Id. at 94. Thus, "if a defendant objects to a sentence enhancement r e s u l t i n g from [his] trial testimony, a district court must review the evidence and ma k e independent findings necessary to establish a willful impediment to or o b s t r u c t i o n of justice" under the Dunnigan definition. Id. at 95. A t the sentencing hearing, the district court made findings "encompass[ing] a l l of the factual predicates for a finding of perjury." Id.
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Y o u committed perjury. You have a right to testify, and you d i d . But you do not have a right to testify falsely. And during your t e s t i mo n y , you lied on several occasions. You were a felon charged w i t h possession of a firearm, and you repeatedly testified that you d i d not possess the firearm you were charged with possessing, and t h a t constitutes a material matter in the trial and you did so with the w i l l f u l intent to provide false testimony. You don't have a right to g i v e false testimony. You have a right to testify truthfully. Y o u denied under oath that you waved a firearm at a group of p e o p l e , causing them to disperse. And such conduct constitutes f e l o n y menacing under Colorado law and is an enhancement of your c r i mi n a l conduct under the Sentencing Guidelines. I find this t e s t i mo n y was false concerning a material matter. And finally in this r e g a r d , I find that you made this statement with the willful intent to p r o v i d e false testimony. The evidence at trial was overwhelming t h a t you were a felon who possessed a firearm and that you used it to me n a c e a crowd of people on the date charged in the indictment. T h e s e findings easily satisfy the standards set out by the Supreme Court in D u n n i g a n . Id. at 95-96. Furthermore, the district court's factual findings that Y o u n g testified falsely and did so willfully are amply supported by the record. See United States v. Hankins, 127 F.3d 932, 934 (10th Cir. 1997) ("[W]e review t h e sentencing court's factual determinations concerning the obstruction of justice e n h a n c e me n t for clear error only. We give due deference to the district court's a p p l i c a t i o n of the Guidelines to the facts and its ability to judge the credibility of t h e witnesses upon whose testimony it relied." (citations omitted)). Accordingly, t h e district court did not err in increasing Young's offense level two levels p u r s u a n t to § 3C1.1.

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2 . U.S.S.G. § 2K2.1 T h e district court increased Young's offense level four levels because his p o s s e s s i o n of the weapon underlying his conviction was in connection with the C o l o r a d o state felony offense of menacing. U.S.S.G. § 2K2.1(b)(6) (prescribing a f o u r - l e v e l increase if the defendant used or possessed any firearm in connection w i t h another felony offense); id. § 2K2.1 cmt. n.14(c) ("`Another felony offense' . . . means any federal, state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, o r a conviction obtained."); Colo. Rev. Stat. § 18-3-206(1)(a) (providing that a p e r s o n commits felony menacing if, by use of a deadly weapon, "he or she k n o w i n g l y places or attempts to place another person in fear of imminent serious b o d i l y injury"). Relying on the testimony of the two security guards from Club V i n y l , the district court concluded Young had waved a handgun about in the A r b y ' s parking lot, causing the assembled crowd to rapidly disperse. This factual f i n d i n g , according to the district court, was all that was necessary to conclude Y o u n g ' s possession of the handgun was in connection with the commission of f e l o n y menacing. O n appeal, Young raises several objections to the district court's use of § 2K2.1 to calculate his offense level. All of these objections, however, revolve a r o u n d the following common theme: because the government did not identify a p a r t i c u l a r victim (i.e., a member of the crowd that dispersed when he waved the
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g u n about in the Arby's parking lot) and present that victim to testify at the s e n t e n c i n g hearing, it failed to satisfy the requirement of the Colorado felony me n a c i n g statute that another person be placed in fear of bodily injury. The p r o b l e m with Young's argument is this court has held that to prove felony me n a c i n g under Colorado law, a prosecutor need not prove "actual subjective fear o n the part of the victim." United States v. Cook, 550 F.3d at 1297 n.5 (quotation o mi t t e d ) ; see also United States v. Blackwell, 323 F.3d 1256, 1259 (10th Cir. 2 0 0 3 ) ("[U]nder Colorado law, felony menacing is a general intent crime and it is e n o u g h that the defendant's conduct was sufficient to place someone in fear of i mmi n e n t serious bodily injury."). 4 In neither Cook nor Blackwell did the record c o n t a i n any indication from a victim of the felony menacing crimes that they had a c t u a l l y suffered fear as a result of having a weapon pointed at them. Cook, 550 F . 3 d at 1295-96 (concluding affidavits from two law enforcement officers simply T h e Colorado Supreme Court has described the crime of menacing as follows: M e n a c i n g , whether a misdemeanor or a felony, is a general i n t e n t crime. To establish that a defendant has committed the crime o f menacing, it is not necessary to prove actual subjective fear on the p a r t of the victim. Rather, it is only necessary that the defendant be a w a r e that his conduct is practically certain to cause fear. Moreover, i n defining felony menacing, the phrase "use of a deadly weapon" is b r o a d enough to include the act of holding a weapon in the presence o f another in a manner that causes the other person to fear for his s a f e t y , even if the weapon is not pointed at the other person. P e o p l e v. Dist. Court of Colorado's Seventeenth Judicial Dist., 926 P.2d 567, 571 ( C o l o . 1996) (citations and footnote omitted).
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r e c o u n t i n g that the defendant had pointed a loaded shotgun at the victim were s u f f i c i e n t to support the district court's application of § 2K2.1(b)(6)); Blackwell, 3 2 3 F.3d at 1259 (affirming application of prior version of § 2K2.1(b)(6) based o n simple testimony red beam from laser-equipped weapon passed over the bodies o f several police officers). In light of this court's binding precedent, Young's a r g u me n t s that he could not be subject to the enhancement set out in § 2 K 2 . 1 ( b ) ( 6 ) without the testimony of an actual victim are without merit. Consequently, the district court did not err in increasing Young's offense level f o u r levels pursuant to § 2K2.1(b)(6). B . Substantive Reasonableness T h i s court reviews the substantive reasonableness of a sentence under an a b u s e - o f - d i s c r e t i o n standard. United States v. Sells, 541 F.3d 1227, 1237 (10th C i r . 2008). A sentence is substantively unreasonable only if the district court " e x c e e d e d the bounds of permissible choice, given the facts and the applicable l a w in the case at hand." United States v. McComb, 519 F.3d 1049, 1053 (10th C i r . 2007) (quotations omitted). That is, "[a] district court abuses its discretion w h e n it renders a judgment that is arbitrary, capricious, whimsical, or manifestly u n r e a s o n a b l e . " United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008) ( q u o t a t i o n omitted). [G]iven the district court's institutional advantage over [this court's] a b i l i t y to determine whether the facts of an individual case justify a v a r i a n c e pursuant to § 3553(a) (given that the sentencing judge, for
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e x a mp l e , sees and hears the evidence, makes credibility d e t e r mi n a t i o n s , and actually crafts Guidelines sentences day after d a y ) , we generally defer to its decision to grant, or not grant, a v a r i a n c e based upon its balancing of the § 3553(a) factors. I d . Where, as here, the sentence imposed by the district court is within the p r o p e r l y calculated guideline range, there is a presumption of reasonableness. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). This presumption c a n be rebutted if the defendant shows the sentence imposed is unreasonable in l i g h t of the factors set forth at 18 U.S.C. § 3553(a). Id. A s he did before the district court, Young argues that in light of the f o l l o w i n g factors his within-guidelines sentence is too harsh: (1) his young age at t h e time of the commission of the crime; (2) his traumatic childhood, which i n c l u d e d an almost complete lack of parental guidance and being shot as a t e e n a g e r ; and (3) an argument his criminal history category V overstated the s e r i o u s n e s s of his criminal history. The district court specifically noted the " t r a g i c " nature of Young's childhood and stated it had "lost considerable sleep o v e r the matter." It concluded, however, that the mitigating value of Young's p e r s o n a l circumstances were outweighed by the following factors: (1) although g i v e n multiple chances to reform after prior criminal conduct, Young had c o n t i n u e d to violate the law; (2) Young's criminal conduct was increasingly v i o l e n t , as demonstrated by his statement to his sister that he should have shot the s e c u r i t y guards that arrested him outside Club Vinyl; and (3) Young's lack of

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v o c a t i o n a l and coping skills made it unlikely he would reform if quickly returned t o the same environment. See 18 U.S.C. § 3553(a)(2) (providing that in arriving a t a sentence, the district court must consider the need to "protect the public" and " p r o v i d e the defendant with needed education or vocational training"). Accordingly, the district court imposed a sentence of seventy-six months' i mp r i s o n me n t , a sentence within the range set out in the advisory Sentencing Guidelines. T h e district court's conclusion that the need to protect the public and p r o v i d e Young with needed vocational and coping skills outweighed Young's p e r s o n a l characteristics is not arbitrary, capricious, or manifestly unreasonable. Haley, 529 F.3d at 1311. It is, instead, an eminently reasonable balancing of the f a c t o r s set out in § 3553(a). United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2 0 0 8 ) (holding that this court "may not examine the weight a district court assigns t o various § 3553(a) factors, and its ultimate assessment of the balance between t h e m, as a legal conclusion to be reviewed de novo," but must instead "give due d e f e r e n c e to the district court's decision that the § 3553(a) factors, on a whole," j u s t i f y the sentence imposed (quotation omitted)). Because Young has not o v e r c o me the presumption of reasonableness that attaches to a within-Guidelines

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s e n t e n c e , we affirm the substantive reasonableness of the sentence imposed by the d i s t r i c t court. 5 A l t h o u g h Young does make a true substantive reasonableness challenge to h i s sentence in his brief on appeal, the majority of Young's arguments are a c t u a l l y , although labeled otherwise, challenges to the procedural reasonableness o f his sentence. That is, in that section of his brief challenging the substantive r e a s o n a b l e n e s s of his sentence, Young asserts the district court failed to a d e q u a t e l y consider the factors set out in § 3553(a) and to explain how those f a c t o r s justified the sentence ultimately imposed. As the Supreme Court has ma d e clear, however, an argument the district court failed "to consider the § 3 5 5 3 ( a ) factors" or "to adequately explain the chosen sentence" are challenges to t h e procedural reasonableness of the sentence. United States v. Sayad, 589 F.3d 1 1 1 0 , 1116 (10th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51 ( 2 0 0 7 ) ) . Because Young did not raise these arguments before the district court, t h e issues are forfeited. United States v. Romero, 491 F.3d 1173, 1177-78 (10th C i r . 2007). Forfeited challenges to the procedural reasonableness of a sentence a r e reviewed only for plain error. Id. Because Young does not advance an a r g u me n t that the forfeited "error" is plain, this court need not consider the issue. Nevertheless, this court's longstanding precedents make it absolutely clear the d i s t r i c t court here did not commit error of any kind in arriving at Young's s e n t e n c e . Pursuant to § 3553(a), a sentencing court must explain the reasons for i t s imposition of a particular sentence. A district court satisfies this obligation in a case involving a within-Guidelines sentence by entertaining a defendant's a r g u me n t s , indicating on the record it considered the § 3553(a) factors, and " p r o v i d [ i n g ] only a general statement of the reasons for its imposition of the . . . s e n t e n c e . " United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2006) ( q u o t a t i o n omitted). The district court need not explicitly reference each of the § 3553(a) factors or respond to "every argument for leniency that it rejects in a r r i v i n g at a reasonable sentence." United States v. Jarrillo-Luna, 478 F.3d 1226, 1 2 2 9 (10th Cir. 2007). The district court is not required to engage in a "ritualistic i n c a n t a t i o n " or recite any "magic words" to demonstrate it has fulfilled its r e s p o n s i b i l i t y to be mindful of the factors that Congress has instructed it to c o n s i d e r . United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006). "Rather, it is enough if the district court considers § 3553(a) en masse and states i t s reasons for imposing a given sentence." United States v. Kelley, 359 F.3d 1 3 0 2 , 1305 (10th Cir. 2004). Here, the district court considered the sentencing f a c t o r s set forth in § 3553(a), including Young's personal characteristics and h i s t o r y , and explained why those factors were simply not sufficient to support a (continued...)
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V . CONCLUSION F o r those reasons set out above, the judgment of conviction and sentence i mp o s e d by the district court are hereby AFFIRMED.

E N T E R E D FOR THE COURT

M i c h a e l R. Murphy C i r c u i t Judge

(...continued) d e v i a t i o n from the advisory Guidelines range. This is all that was required of the d i s t r i c t court under this court's longstanding precedents.
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