United States of America v. Kevin Joel Dean

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN JOEL DEAN,
Defendant - Appellant.
No. 21-6029
(D.C. No. 5:20-CR-00061-JD-1)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
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Before MORITZ, BALDOCK, and EID, Circuit Judges.**
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Defendant pled guilty to two counts of being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1). On February 24, 2021,
Defendant appeared for sentencing. There, the district court calculated a base offense
level of 17, with a criminal history category of III, resulting in a guideline range of 30
to 37 months’ imprisonment. While Defendant advocated for a downward departure
or variance based on “the full circumstances of [Defendant’s] crimes, persistent and
* This order and judgment is not binding precedent, except under the doctrines of law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.
** 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.
FILED
United States Court of Appeals
Tenth Circuit
August 9, 2021
Christopher M. Wolpert
Clerk of Court
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deteriorating medical conditions, and family obligations,” the district court declined
Defendant’s invitation and sentenced him to a low-end guideline sentence of 30
months’ imprisonment, to be followed by 3 years of supervised release.
Defendant timely appealed. He argues his sentence is substantively
unreasonable considering the totality of the circumstances, “most especially
[Defendant’s] myriad complicated and ongoing medical maladies.” We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Though we are
sympathetic to Defendant’s medical conditions, the governing law requires us to affirm
on the facts presented.
I.
We review the substantive reasonableness of a sentence for an abuse of
discretion and will reverse only if the sentence imposed is “arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. DeRusse, 859 F.3d 1232,
1236 (10th Cir. 2017) (quoting United States v. Gantt, 679 F.3d 1240, 1249 (10th Cir.
2012)). When a sentence is within the properly calculated guideline range, we presume
that it is reasonable, but a defendant may rebut this presumption by showing that the
sentence is “unreasonable when viewed against the other factors delineated in [18
U.S.C.] § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
“[I]n many cases there will be a range of possible outcomes the facts and law at issue
can 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 these rationally
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available choices.” DeRusse, 859 F.3d at 1236 (quoting United States v. McComb, 519
F.3d 1049, 1053 (10th Cir. 2007)).
Here, Defendant does not contest that the district court sentenced him at the low-
end of the properly calculated guideline range. He nonetheless attempts to rebut the
presumption of reasonableness we afford the district court’s judgment by pointing to
his “panoply of medical conditions.” It is undisputed that Defendant has significant
medical issues, as evidenced by his 39 doctor appointments in the 10 months preceding
his sentencing. But Defendant’s medical conditions alone do not make a low-end
guideline sentence unreasonable.
The district court carefully addressed the § 3553(a) factors, including
Defendant’s need for medical care, before pronouncing a guideline sentence. The court
began by recognizing factors in Defendant’s case that suggest “a significant sentence
of imprisonment would be warranted,” including the fact that Defendant’s “criminal
history has not been a thing of the long-ago past, and it has continued.” The court
emphasized that Defendant had several drug- and firearm-related convictions in the
past four years but served no prison time. “[D]espite this string of events,” the court
explained “nothing has deterred [Defendant], and [he has] continued to violate the
law.” The court concluded that “the two felon-in-possession counts here, combined
with [Defendant’s] criminal history, indicate that the sentence imposed needs to
account for the nature and circumstances of the offense, [] promote respect for the law,
provide just punishment for the offenses, and [] protect the public from further crimes.”
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Thereafter, the court “balance[d] the needs of this case against other factors that
[Defendant and his counsel] . . . put before [the court].” Specifically, the court
explained that Defendant’s “history and characteristics,” his “role in [his family],” and
his “need for medical care . . . indicate that a sentence on the bottom end of the advisory
guideline range is warranted.” But the court ultimately concluded that the mitigating
circumstances did not deserve “excessive weight that would warrant a downward
variance or a departure outside the advisory guidelines to a term of probation.”
This balancing of the § 3553(a) factors was well within the district court’s
discretion. Essentially, Defendant asks us to “look with more favor on the facts
surrounding his medical condition than the district court did,” but as the reviewing
court, this is not our role. McComb, 519 F.3d 1049. Despite Defendant’s urging, we
cannot reweigh the sentencing factors. See United States v. Miller, 978 F.3d 746, 755
(10th Cir. 2020). Ultimately, the district court’s sentence was not “arbitrary,
capricious, whimsical, or manifestly unreasonable.” DeRusse, 859 F.3d at 1236
(quoting Gantt, 679 F.3d at 1249). “Indeed, the record in this case demonstrates that
the district court’s sentence was not only not arbitrary or capricious, it was
meticulously and thoroughly reasoned.” Miller, 978 F.3d at 756.
II.
For the reasons provided herein, we affirm Defendant’s guideline sentence.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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