UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TRACEY BEAVER, Defendant - Appellant. No. 17-2151 (D.C. No. 1:16-CR-04338-MV-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before EID , BALDOCK , and EBEL , Circuit Judges.

________________ _________________ In this direct criminal appeal , Defendant Tracey Beaver brings both substantive and procedural unreas onableness challenges to the 1 20-month sentence imposed after he pled guilty to two counts of involuntary mansl aughter. Because it appears the district court err oneously considered discrepancies between the federal sentencing guidelines and the co rresponding state sentencing st ructures in assessing this sentence, we VACATE Beave r’s 120-month sentence and REMAND for resentencing without considerat ion of these disparities.

* This order and judgment is not binding precedent, except underthe doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistentwith Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 18, 2018
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND In 2016, Tracey Beaver and three passengers, all enrolled membe rs of the Navajo Nation, were driving down a gravel road in Indian country when their vehicle crashed, rolling several times a nd throwing the occupants from the cab of the truck. When police and EMTs responded, one passenger was walking down the street away from the crash and Mr. Beaver was on the ground outside the tru ck. The other two passengers, who were sisters, we re lying motionless and breathl ess on the ground. Tragically, the first EMT to res pond to the scene was their mot her. Efforts to revive the sisters were unsuccessful, and they were later pronounced d ead. An investigation into the accide nt determined that all four occ upants were sitting in the front seat of the truck, and that the vehicle wa s traveling approximately 80 miles per hour when it began to lose control. Beaver, who w as driving, admitted that he had been drinking prior to driving, a fact corroborated by the surviving passenger. Ultimately breathalyze d roughly three hours after th e accident, Beaver registered a blood alcohol content of .311. Because the accident occurred in Indian country, and because Mr . Beaver is an enrolled member of the Navajo Na tion, he was charged by informa tion in federal court with two counts of involunta ry manslaughter in violation of 18 U.S.C. §§ 1112 and 1153. Mr. Beaver pleaded guilty to both counts without a p lea agreement. In preparation for Beaver’s sen tencing, the probation office pr epared a PreSentence Investigation Report (“ PSR”) to which no party objecte d and which calculated Beaver’s a dvisory Guidelines range at 41 to 51 month s in prison. The3 PSR did note, however, that in li ght of Beaver’s history of alc ohol-related offenses, “an upward variance outside the a dvisory guideline range may be warranted in this case.” R. Vol. II at 22. 1 In response, the parti es filed simultaneous sentencing memorand a. The Government initially argued base d on the sentencing factors fou nd in 18 U.S.C. § 3553(a) that Beaver’s advisory G uidelines range did “not adequa tely reflect the harm caused, and [did] not account for[Beaver’s] history.” R. Vol. I at 34. The Government also noted that what it called “sentencing inequitie s” meant that Beaver’s advisory Guidelines ra nge was lower than it would have been had all three passengers survived and he had b een charged with Assault Result ing in Serious Bodily Injury instead of Involun tary Manslaughter. For these r easons, the Government requested an upward variance, recommending that the sentences for each of the two counts of convic tion run consecutively for a to tal sentence of 120 months. In contrast, while Beaver did no t object to the factual stateme nts in the PSR, he did object to its insinuation that an upward variance was ap propriate. In support of his argument he noted that, h ad he been charg ed in this case in New Mexico instead of in Federal court, his m aximum sentence would have be en forty-eight

1 According to the PSR, “[t]he de fendant’s criminal history refl ects arrests and convictions for Public Intoxicati on (19 times), Open Container (two times), [and] Driving While Under the Influen ce of Alcohol and Aggravated DWI (six times) between 1997 and 2013.” R. Vol. II at 21. Mr. Beaver had also previously been convicted of Assault Resulting in Serious Bodily Injury for act s occurring while he was intoxicated. Id. at 22.4 months. Therefore, he argued th at the court should impose a wi thin-Guidelines sentence in order to avoid “an u nwarranted sentencing disparity which has a disparate impact on [Beaver] based solely on his status as a Native Ameri can.” R. Vol. I at 46. The Government later responded to this argument, noting that Ne w Mexico’s involuntary manslaughter statute , on which defense counsel had relied to establish a comparison to New Mexico law, w ould not apply to Beaver’s condu ct, because New Mexico has a specific charge f or Homicide by Vehicle. R. Vol. I at 53 (citing N.M. Stat. Ann. § 66-8-101 (1978)). B ased on Mr. Beaver’s history o f criminal alcohol abuse, the Government calculated that his actual New Mexico sen tence would have ranged from a minimum of forty-e ight months to a maximum of 456 months. Based on the federal guidelines range of 41–51 months, the Government concluded that “the Federal Court system provides fo r a more lenient sentencing structure than in State Court for this type of crime.” Id. at 54 The Government then concluded this section of its response by noting that “[i ]f there is any disparity, a comparison to State Court would favor a sentence more in l ine with the United States[’] r ecommendation than the one requested by De fendant.” Id. at 56. At sentencing, the defense elect ed to rest on its sentencing me morandum, but the Defendant spoke about his per sonal remorse. The court also heard victim impact statements from the mo ther of the deceased women (who was the i nitial EMT who responded to the crash) and the victims’ sister. The Government then spoke at le ngth about its request for an up ward variance. It reiterated its argument that the sentencing guidelines conta in an inherent5 contradiction in that had Beave r’s victims survived, he could h ave been charged and sentenced under the federal code provisions concerning assault resulting in serious bodily injury, but because his vic tims died he was prosecuted u nder involuntary manslaughter, which is subject to lower guidelines ranges than assault. The Government also noted that a va riance was warranted because “th ere is an additional enhancement for assault with ser ious bodily injury when someone violates a restraining order and commits t hat act[,]” but t hat this enhanc ement did not exist for involuntary manslaughter. R. Vo l. III at 20. B ecause Mr. Beav er was the subject of a restraining order taken out by at least one of the victims, t he Government argued the absence of this enhancemen t in the guidelin es could be addr essed by an upward variance. The Government also ar gued for an upward variance on the basis of Mr. Beaver’s history of cr iminal alcohol abuse. Finally, the Government noted tha t “[t]here was also an argumen t, to some degree, in both the defense Sent encing Memorandum and in our re sponse, regarding the disparate sentences [between state and federal court].” Id . at 20. Counsel then reiterated the calculation that would apply in state court from its written response, concluding that “[s]o if there is any disparate treatment, it’s in favor of the Defendant in this sort of scen ario, because it is all owing him to receive a sentence that . . . could be less than he would receive on the state side.” Id. at 21. The district court then delivered its sentence from the bench. After discussing the ravages of addiction, the dis trict court told Mr. Beaver th at she felt “the Government’s recommendation is t he right thing to do today.” I d. at 28. The court6 noted that Mr. Beaver had not “ta ken advantage of the resources ” provided by supervision following previous c ourt orders, because his “heart ” and “head” were not “in it.” Id. The court then a dopted the PSR and discussed the offense itself, and Mr. Beaver’s history of alcohol abuse. Id. at 30-34. At this point the court began walk ing through the factors liste d in 18 U.S.C. § 3553(a). When it reached the fact or at § 3553(a)(6)—“the need to avoid unwarranted sentence disparities among defenda nts with similar records who have been found guilty of similar conduct”—she c ommented that “Mr. Beaver asser ts that a sentence within the guideline range will a void an unwarranted sentencing disparity between Native Americans sentenced for i nvoluntary manslaughter under f ederal law and other New Mexicans who are convi cted of involuntary manslaughte r in New Mexico courts.” R. Vol. III at 35. The court then explained the Gove rnment’s response, and concluded that “[a] sentence in accordance with the guidelines would be significantly lower than the Defendant would r eceive if convicted of homicide by vehicle under New Mexico law.” Id. at 37. Ultimately, the district court c oncluded “that an upward varian ce is indeed appropriate in this case.” Id. The court noted Mr. Beaver’s hi story of driving while intoxicated, public intoxication , and open container violations , and that “he has a history of alcohol abuse dating b ack many years.” Id. The cou rt also noted that this incident “was particularly traum atic for the family of the vict ims[,]” and that “the victims left behind yo ung daughters who ha ve been strongly affe cted by the death of their mothers.” Id . Finally, the court c oncluded that “[a]ddi tionally, as previously7 discussed, the guideline range p rovides for a significantly low er sentence than Mr. Beaver could have received in S tate Court. For these reasons, an upward variance is appropriate.” Id. ( emphasis added). The court then handed down a sen tence of sixty months as to eac h charge, to run consecutively for a total se ntence of 120 months. Followin g the imposition of the sentence, defense counsel ros e “to interpose an objection t hat the sentence is procedurally and substantively unreasonable[,]” because “the Co urt has imposed a sentence that’s two-and-a-half t imes the recommended Guideline Sentence. For the reasons more fully set out in our sentencing memorandum, we do object.” Id. at 41. II. DISCUSSION As a threshold matter we must de termine whether Beaver sufficie ntly objected before the district court to the procedural error he now allege s. If so, our review is formally for abuse of discretion, however we review any legal d eterminations— including whether it is appropriate to consider the disparities at issue in this appeal— de novo . See United States v. Lopez-Avila , 665 F.3d 1216, 1218–19 (10 th Cir. 2011). It is not enough, however, for B eaver to have voiced a generali zed objection to his sentence. See United States v. Gantt, 679 F.3d 1240, 1246– 47 (10th Cir. 2012). Rather, his objection must suffi ciently apprise the district co urt of the alleged error such that the court could have, i tself, corrected the error had it been so inclined. See, e.g., United States v . Chavez-Morales, 894 F.3d 1206, 1213 (10t h Cir. 2018). “We8 do not abide appeals of alleged errors that could have been eas ily avoided by timely objection.” Gantt, 679 F.3d at 1247. Here, while Beaver did object in his sentencing memorandum to a n upward variance, he did not do so on th e basis that it was improper fo r the court to consider federal-state sentencing dispar ities. At the sentencing hearin g, defense counsel indicated that he “[did] not have a whole lot more to add outsi de of [his] Sentencing Memorandum[,]” R. Vol. III at 5 , and at no time did counsel add ress the Government’s response to his sen tencing memorandum suggesting d efense counsel erred in identifying the relevant New Mexico statute. Finally, after the district court had imposed its sentence, defen se counsel rose “to interpose an objection that the sentence is procedurally and s ubstantively unreasonable. The C ourt has imposed a sentence that’s two-and-a-half t imes the recommended Guideline Sentence. For the reasons more fully set out in our sentencing memorandum, we do object.” Id. at 41. While this was sufficient to aler t the court as t o Defendant’s contention that his offense was substantively unreasonable, such a generalized objection was insufficient to alert the distric t court of the alleged error c urrently at the heart of Beaver’s procedural unreasonablen ess appeal: that it was improp er to use federalstate sentencing disparities as justification for departing upw ard from guideline imprisonment recomme ndations. Therefore, as to Beaver’s claim of procedural unreasonableness, our review is f or plain error. See United St ates v. PachecoDonelson, 893 F.3d 757, 759 (10 th Cir. 2018) (holding objection to substantive9 reasonableness of sentence inade quate to preserve objection to specific procedure later challenged as procedur ally unreasonable). A. Substantive Unreasonableness We turn first to Beaver’s challe nge to the substantive reasonab leness of his sentence. “We review the substa ntive reasonableness of ‘all se ntences—whether inside, just outside, or signifi cantly outside the Guidelines r ange—under a deferential abuse-of-discretion standard.’ ” United States v. Lente, 759 F. 3d 1149, 1158 (10th Cir. 2014) (quoting Gall v. Unite d States, 552 U.S. 38, 41 (200 7)). “Under this standard we will ‘deem a senten ce unreasonable only if it is arbitrary, capricious, whimsical, or manifestly unreas onable.’” Id. (quoting Gantt, 6 79 F.3d at 1249). While a “major” variance from t he applicable Guidelines range r equires “a more significant justification than a minor one[,]” Gall, 552 U.S. a t 50, there is no “rigid mathematical formula that uses t he percentage of a departure as the standard for determining the strength of the j ustifications required for a s pecific sentence.” Id. at 47. Under this deferential standard of review, there is nothing “arbitrary, capricious, whimsical, or manife stly unreasonable” with the sub stantive length of Beaver’s sentence. In addressi ng the sentencing factors found in 18 U.S.C. § 3553(a), the district court speci fically cited not only Beaver’ s extensive history of alcohol-related criminal offenses —including several related to driving while under the influence—but also the horri fic circumstances of this crime —in which two sisters10 died, each leaving behind young ch ildren, and their mother was the first EMT responder to arrive on the scene. For these reasons, the district c ourt did not substantively abu se its discretion in imposing consecutive 60-month sent ences for a total of 120 mont hs. B. Procedural Unreasonableness We turn next to Beaver’s proce dural objection. Under the plain -error standard of review, we will reverse if: “( 1) the district court committe d error; (2) the error was plain—that is, it was obvious und er current well- settled law; ( 3) the error affected the Defendant’s substantia l rights; and (4) the error seriously aff ected the fairness, integrity, or public reputation of judicial proceedings.” Unit ed States v. ChavezMorales, 894 F.3d 1206, 1214 ( 10th Cir. 2018) (quoting Gantt, 6 79 F.3d at 1246). The defendant bears the burden of persuading the court that the alleged error “seriously affect[ed] the fairn ess, integrity or public reputat ion of judicial proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 189 7, 1909 n.4 (2018) (alteration in original) (quoti ng United States v. Vonn, 535 U. S. 55, 63 (2002)). Here, we conclude the first two p rongs of the plain-error stand ard are met. In United States v. Wiseman, 749 F. 3d 1191, 1196 ( 10th Cir. 2014), we held that 18 U.S.C. § 3553(a)(6)’s requireme nt that district courts consider“the need to avoid unwarranted sentence disparitie s among defendants with similar records who have been found guilty of similar c onduct” applied only to similarly situated federal defendants. In so holding we exp lained that a district court’s authority to consider sentencing disparities did not ext end to disparities between th e applicable federal11 sentence and the likely sentence a defendant would have receive d had he been charged in state court. Wisem an, 749 F.3d at 1196; see also Un ited States v. Branson, 463 F.3d 1110, 1112 (10t h Cir. 2006) (“Adjusting feder al sentences to conform to those imposed by the states where the offenses occur red would not serve the purposes of § 3553(a)(6), but , rather, would create dispari ties within the federal system, which is what § 3553(a)(6 ) is designed to discourage.”)

. Here, the district court expressl y justified the upward varianc e it imposed in part because of the di sparity between Beave r’s advisory Guideli nes range and the likely sentence he would have recei ved in state court. After c iting several other justifications for a variance, t he district cour t concluded: “A dditionally, as previously discussed, the guideline range p rovides for a significantly low er sentence than Mr. Beaver could have received in S tate Court. For these reasons, an upward variance is appropriate.” R. Vol. III at 37 (emphasis added). While we ar e always hesitant to ascribe error on the basis of a t ranscript that does little to reflect the nuances available to a trial judge, we must conclude, on this record, t hat the court explicitly justified the upward variance, a t least in part , on disparities between similarly situated federal and state defe ndants. This was error under es tablished circuit precedent, and therefore satisfies the first two prongs of the plain-error standard. Anticipating such a ruling, the Government argues that any alle ged error was invited by the Defendant. On thes e facts, we disagree with the government and find12 no invited error. See United St ates v. Thornton, 846 F.3d 1110 , 1117 n.3 (10th Cir. 2017). 2 But holding that there was plai n error that was not invited by the defendant does not end our plain-error i nquiry. We still must ask whethe r the error affected the defendant’s substantia l rights, and if so, w hether leaving it u ncorrected would “seriously affect[] the fairness , integrity or public reputatio n of judicial proceedings.” Rosales-Mirales, 138 S. Ct. a t 1906 (quoting United States v. O lano, 507 U.S. 725, 736 (1993)). In order to prove that the erro r affected his substantial right s, Beaver “must ‘show a reasonable probability tha t, but for the error claimed, the result of the proceeding would have been diffe rent.’” United States v. Pache co-Donelson, 893 F.3d 757, 760 (10th Cir. 2018) ( quoting United States v. Clark, 415 F.3d 1234, 1240 (10th Cir. 2005)). Here, this sh owing is satisfied by the face of the district court’s sentencing statement. Perhaps t he district court’s decision to sentence Beaver to 120 months was born primarily out o f his history of alcohol abuse a nd the uniquely tragic circumstances of this incident . As we noted above, such a sent ence imposed for these reasons, and these reasons a lone, would not be substantiv ely unreasonable. But in summarizing its justifications for an upward variance, the d istrict court cited not only these two rationalizations, but also expressly relied on a comparison between the state and federal sentence s. R. Vol. III at 37 (“Additiona lly, . . . the guideline

2 Appellee’s Motion for Leave to File a Supplemental Letter Brie f calling the court’s attention to United St ates v. Thornton,846 F.3d 1110 (1 0th Cir. 2017) is denied as moot because the court discovered this case and addre ssed it on its own.13 range provides for a significantl y lower sentence than Mr. Beav er could have received in State Court. For the se reasons an up ward variance is appropriate.”) (emphasis added). Given the dis trict court’s explicit invocati on of the discrepancy as one of the reasons a variance wa s appropriate, we conclude Beav er has satisfied the third prong of the plain-error standard. While the fourth prong of the plai n-error standard is “permissi ve, not mandatory,” the Supreme Court in structs that courts “‘should’ c orrect a forfeited plain error that affects substant ial rights ‘if the error serio usly affects the fairness, integrity or public reputation of judicial proceedings.’” Rosa les-Mireles, 138 S. Ct. at 1906 (quoting Olano, 507 U.S . at 735–36). Errors that affec t a defendant’s prison sentence are particularly ripe for review under this standard b ecause of how erroneously enhanced p rison sentences undermine the public perc eption of the integrity of the judicial syste m. See id. at 1907 (“The possib ility of additional jail time . . . warrants serious consid eration in a determination wh ether to [reverse under plain error review]. It is cruc ial in maintaining public perce ption of fairness and integrity in the judicial syste m that courts exhibit regard forfundamental rights and respect for prisoners as people. ”) (internal quotations omitted ). Furthermore, unlike errors at trial, errors at sent encing “ultimately result from j udicial error.” Id. at 1908. Finally, from a functional persp ective, a remand for resentenci ng imposes only a slight burden on the pa rties and the judiciary, given that “res entencing is a brief event, normally taking less than a day and requiring the attend ance of only the defendant, counsel, and court pers onnel.” Id. (internal quotat ions omitted).14 For these reasons, we have held that an error in calculating orapplying the sentencing guidelines will usually satisfy the fourth element o f the plain error test. See, e.g., United Stat es v. Sabillon-Umana , 772 F.3d 1328, 1333 (10th Cir. 2014). We see no reason to deviate fro m that reasoned approach when th e error potentially operates in a similar manner to enhance a defendant’s sentence. After all, “[w]hat reasonable citizen wouldn’t bear a rightly diminished view of t he judicial process and its integrity if courts refused to correct obvious errors of th eir own devise that threaten to require individuals t o linger longer in federal pri son than the law demands?” Id. Therefore, because we cannot concl ude that Beaver’s sentence wa s not improperly enhanced on the basi s of supposed discr epancies betw een his advisory Guidelines range and the senten ces received by similarly situat ed defendants in New Mexico state courts, we VACATE th e district court’s sentence an d REMAND for resentencing. Perhaps the distr ict court will si mply impose th e same sentence on remand, this time omitting any re ference to New Mexico state co urts. As we observed above, such a sentence w ould appear to be a permissibl e substantive exercise of the court’s senten cing discretion. But Mr. Beaver, like all criminal15 defendants, deserves to know that his time in prison was not ex tended by plain error. The case is remanded.

Entered for the Court

David M. Ebel Circuit Judge