United States of America v. Evan Aubrey Armstrong

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVAN AUBREY ARMSTRONG,
Defendant - Appellant.
No. 21-8075
(D.C. No. 0:21-CR-00047-NDF-1)
(D. Wyo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Evan Aubrey Armstrong pled guilty to one count of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B), and one
count of carrying a firearm during and in relation to a drug-trafficking crime in violation
of 18 U.S.C. § 924(c)(1)(A)(i). Mr. Armstrong’s guidelines range was 100-125 months of
imprisonment on the conspiracy count and a consecutive 60-month prison sentence on the
§ 924(c) count. The district court imposed consecutive sentences of 86 months and 60
* 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 This order and judgment is not binding precedent,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.
FILED
United States Court of Appeals
Tenth Circuit
April 7, 2022
Christopher M. Wolpert
Clerk of Court
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months, respectively. On appeal, Mr. Armstrong argues his sentence is substantively
unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
On December 22, 2020, Mr. Armstrong was involved in a car accident and
transported to a hospital. During an inventory search of his car, a Wyoming Highway
Patrol trooper found a stolen firearm, suspected methamphetamine, two digital scales,
and other drug paraphernalia. The trooper attempted to contact Mr. Armstrong at the
hospital, but Mr. Armstrong had already left.
About one month later, on January 20, 2021, an agent with the Wyoming Division
of Criminal Investigation (DCI) was surveilling Mr. Armstrong’s residence when the
agent saw Mr. Armstrong leave in a pickup truck. The agent called for local police to
initiate a traffic stop. During the stop, officers arrested Mr. Armstrong, searched him, and
found approximately 17 grams of methamphetamine and $1,700 in cash. In the truck, the
officers located a handgun, a scale, and packaging material consistent with distribution.
That same day, DCI agents executed a search warrant for Mr. Armstrong’s
residence. There, they encountered two additional suspects and discovered about 150
grams of methamphetamine.
The government charged Mr. Armstrong with three offenses:
 Count One charged conspiracy to distribute methamphetamine;
 Count Two charged possession with the intent to distribute methamphetamine on
the date of the traffic stop; and
 Count Three charged carrying a firearm during and in relation to Count Two.
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Mr. Armstrong pled guilty to the first and third counts. The government agreed to
dismiss the second count. Count One carried a statutory sentencing range of 5-40 years of
imprisonment, and Count Three carried a mandatory minimum 5-year consecutive
sentence.
A presentence report (PSR) prepared by a probation officer calculated
Mr. Armstrong’s advisory guidelines range. With a total of 18 criminal history points, the
PSR put Mr. Armstrong in criminal history category VI. With an offense level of 24 on
the conspiracy count, Mr. Armstrong’s guidelines range was 100-125 months, plus
60 months on the § 924(c) count.
Mr. Armstrong filed a sentencing memorandum requesting a downward variance
from the guidelines range under 18 U.S.C. § 3553(a). As relevant here, Mr. Armstrong
emphasized two mitigating factors in support of a variance: (1) overrepresented criminal
history and (2) trauma from childhood sexual abuse.
First, Mr. Armstrong explained that two of his prior sentences were based on
offenses committed nearly 20 years earlier, in 2002, when he was just 21 years old.
Citing Supreme Court precedent and research from the National Institute of Health,
Mr. Armstrong asserted the adolescent brain does not fully mature until approximately
the age of 25. On that basis, Mr. Armstrong argued his 2002 offenses were akin to
juvenile offenses, which generally would not qualify for criminal history points. He
further contended sentences imposed nearly 20 years earlier typically fall outside the
15-year lookback period in U.S.S.G. § 4A1.2(e)(1) and, for that additional reason, would
not count for criminal history points. Indeed, it was only because a suspended sentence
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was continued multiple times before ultimately being revoked that Mr. Armstrong ended
up serving any part of it within the previous 15 years. Without these two prior sentences
in the mix, Mr. Armstrong would have only 12 criminal history points, not enough to
qualify for category VI. Mr. Armstrong argued he should be sentenced as if he were in
criminal history category V.
Next, Mr. Armstrong explained that he was a victim of sexual abuse as a child and
contended this was a significant mitigating factor warranting a downward variance. When
Mr. Armstrong was about five or six years old, an older teenage family member
repeatedly sexually abused him. His abuser also introduced him to drugs. Throughout his
life, Mr. Armstrong suppressed his history of abuse and relied on controlled substances to
cope with his trauma, which ultimately led to an extensive juvenile and adult criminal
history. Mr. Armstrong also stated that Eye Movement Desensitization and Reprocessing
(EMDR) therapy had been the most effective treatment for addressing his trauma.
Mr. Armstrong claimed the Bureau of Prisons (BOP) would be unable to provide him
with this essential treatment. Accordingly, he requested a five-level downward variance
based on the Sentencing Guidelines’ failure to take into account these mitigating
circumstances, see 18 U.S.C. § 3553(b)(1), and to allow him to receive the requisite
treatment as soon as possible, see § 3553(a)(2)(D).
At the sentencing hearing, the district court initially calculated Mr. Armstrong’s
guidelines range to be 100-125 months of imprisonment based on an offense level of 24
and a criminal history category of VI, plus 60 months on the § 924(c) count. After
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hearing argument from Mr. Armstrong and the government, the district court granted in
part and denied in part the requested downward variance.
First, the district court denied Mr. Armstrong’s request to treat him as if he were in
criminal history category V. The court reasoned “with regards to the criminal history and
the brain development, the argument applies to all” defendants with convictions from
their early twenties. R. vol. III at 53. And while the district court found “some merit” to
Mr. Armstrong’s argument, the court ultimately determined it was appropriate to count
Mr. Armstrong’s 2002 sentences because the “reason those didn’t fall off was because he
continued to commit crimes in violation of his probation.” Id. at 55.
The district court agreed Mr. Armstrong’s trauma from childhood sexual abuse
warranted a downward variance. “In terms of the abuse, I certainly see that and the
youthful consumption, the mental health issues,” the district court reasoned. Id. at 56. “I
think that there is grounds for consideration there for a variance to address the mental
health and the early onset substance abuse that I think certainly led to the poor choices.”
Id. The district court did not rely on the alleged lack of EMDR treatment within the BOP
as a basis for a downward variance. However, the district court expressed its frustration
with the BOP’s lack of treatment options and was adamant it would try to get Mr.
Armstrong into EMDR treatment during his incarceration. Id. (“I’ll do everything I can.
I’m not happy with the Bureau of Prisons. . . . I think that we are, in many ways, poorly
investing our time and efforts into jail cells and not in programming.”).
“In the end,” the district court found, “a sentence of 86 months as to Count 1 [wa]s
sufficient but not greater than necessary.” Id. at 57. The district court explained the
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downward variance was based in part on “some recognition for the mental health and the
early onset substance abuse and the problems that existed as well as the sexual abuse.” Id.
The district court also imposed the mandatory minimum 60-month consecutive sentence
on the § 924(c) count.
Mr. Armstrong timely appealed.
II. Discussion
Appellate review of the reasonableness of a sentence “includes both a
procedural component, encompassing the method by which a sentence was
calculated, as well as a substantive component, which relates to the length of the
resulting sentence.” United States v. Henson, 9 F.4th 1258, 1284 (10th Cir. 2021)
(quoting United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008)).
Mr. Armstrong challenges only the substantive reasonableness of his sentence,
arguing the district court’s failure to properly weigh his mitigating circumstances resulted
in an unreasonably long sentence.
“We review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard.” United States v. Richards, 958 F.3d 961, 968 (10th
Cir. 2020). “We find an abuse of discretion only if the district court was ‘arbitrary,
capricious, whimsical, or manifestly unreasonable’ when it weighed ‘the permissible
§ 3553(a) factors in light of the totality of the circumstances.’” United States v.
Sanchez-Leon, 764 F.3d 1248, 1267 (10th Cir. 2014) (quoting United States v. Sayad,
589 F.3d 1110, 1116, 1118 (10th Cir. 2009)). “That is to say, we recognize that in
many cases there will be a range of possible outcomes the facts and law at issue can
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fairly support; rather than pick and choose among them ourselves, we will defer to
the district court’s judgment so long as it falls within the realm of . . . rationally
available choices.” United States v. Durham, 902 F.3d 1180, 1236 (10th Cir. 2018)
(alteration in original) (quoting United States v. McComb, 519 F.3d 1049, 1053 (10th
Cir. 2007)). Moreover, we apply a “rebuttable presumption of reasonableness to a
below-guideline sentence challenged by the defendant as unreasonably harsh.”
Richards, 958 F.3d at 968-69 (quoting United States v. Balbin-Mesa, 643 F.3d 783,
788 (10th Cir. 2011)).
Mr. Armstrong argues the district court gave insufficient weight at sentencing to
two mitigating factors: (1) his overrepresented criminal history and (2) his trauma from
childhood sexual abuse. However, we cannot conclude—particularly in light of the
highly deferential standard of review—that the district court abused its discretion in
varying only 14 months below the guidelines range.1
As for his criminal history, Mr. Armstrong argues “the fact that a meaningful
portion of his criminal history was committed when he was only 21 years old should have
1 A “variance occurs when the district court deviates from the guidelines range
based on the sentencing factors in 18 U.S.C. § 3553(a).” United States v. Kaspereit,
994 F.3d 1202, 1214 (10th Cir. 2021). “A departure is a deviation from the calculated
guidelines range based on the enumerated departure provisions in the Guidelines
Manual.” Id. While Mr. Armstrong occasionally references departure provisions, his
sole argument on appeal is that the sentence was substantively unreasonable—not
that the district court erred in failing to apply a departure, which would implicate the
procedural reasonableness of the sentence. See id. (“While a case involving a
departure (and thus a question of guidelines application) opens the door to a
procedural reasonableness challenge, we review a variance for substantive
reasonableness.”).
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been taken into consideration when considering the section 3553(a) factors.” Opening Br.
12. However, the district court thoughtfully considered Mr. Armstrong’s argument,
recognized it had some merit, and gave a reasoned explanation for rejecting it. The
district court observed that Mr. Armstrong’s brain-development argument did not set him
apart from any other defendant, and it was appropriate to count his 2002 convictions
since he continued to commit multiple crimes while on probation. While the district court
had discretion to grant Mr. Armstrong a downward variance based on an overrepresented
criminal history, it did not abuse its discretion by refusing to do so. That is, the district
court’s decision fell within the realm of rationally available choices. Durham, 902 F.3d at
1236.
Next, Mr. Armstrong argues “the district court should have given more weight
to the fact that the defendant was a victim of sexual abuse.” Opening Br. 12. Our
review confirms the district court gave significant weight to this mitigating
circumstance. Indeed, the district court granted a downward variance because of the
trauma Mr. Armstrong suffered as a child, finding it contributed to Mr. Armstrong’s
early-onset substance abuse and criminal history. Understandably, Mr. Armstrong
would have liked the district court to have varied downward even further. However,
we must presume the substantive reasonableness of a below-guideline sentence.
Richards, 958 F.3d at 968-69. Mr. Armstrong has not rebutted that presumption nor
demonstrated that the district court abused its discretion. See id.
Accordingly, the district court did not reversibly err by imposing a
substantively unreasonable sentence.
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III. Conclusion
The district court’s judgment is affirmed.
Entered for the Court
Veronica S. Rossman
Circuit Judge
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