United States of America v. Michael Nissen

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL NISSEN,
Defendant - Appellant.
No. 21-2079
(D.C. No. 1:19-CR-00077-JB-SMV-1)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
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Before PHILLIPS, MURPHY, and EID, Circuit Judges.
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A jury convicted Michael Nissen of two counts of transmitting threats in
interstate commerce. After the trial, Nissen moved for a downward sentencing
variance. 1 He argued this was appropriate because he suffers from mental health
issues and is not violent. The district court rejected Nissen’s request and imposed a
forty-one-month sentence and three years of supervised release. Nissen argues that
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1 The Sentencing Guidelines provide an advisory sentencing range of 41–51
months of imprisonment for Nissen’s convictions and criminal-history category.
FILED
United States Court of Appeals
Tenth Circuit
February 14, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-2079 Document: 010110644521 Date Filed: 02/14/2022 Page: 1

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the district court erred in denying his request because his sentence is substantially
longer than necessary under 18 U.S.C. § 3553(a).
As Nissen acknowledges on appeal, we review a district court’s denial of a
motion for a downward sentencing variance for abuse of discretion. See United States
v. Barnes, 890 F.3d 910, 915–16 (10th Cir. 2018). But while Nissen believes his
sentence is excessive, there is no legal error in the district court’s analysis under the
relevant standard of review. See United States v. Naramor, 726 F.3d 1160, 1171–72
(10th Cir. 2013) (an abuse of discretion occurs if a sentence is “arbitrary, capricious,
whimsical, or manifestly unreasonable”). At bottom, Nissen’s sentence stems from
the seriousness of his crimes: specific threats to shoot and kill law-enforcement
officials. The district court considered his mental health issues and imposed a
sentence at the low end of the Sentencing Guidelines’ recommended range. The
decision was within the district court’s discretion. See United States v. Ivory, 532
F.3d 1095, 1107 (10th Cir. 2008) (a sentence within the Guidelines range is
presumptively reasonable on appeal). Thus, exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the district court’s judgment.
Entered for the Court
Gregory A. Phillips
Circuit Judge
Appellate Case: 21-2079 Document: 010110644521 Date Filed: 02/14/2022 Page: 2

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