*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally

disfavors the citation of orders and judgments; nevertheless, an order and

judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

December 14, 2005

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 05-6072

KHAMPHAY SOUVANNARATH,

Defendant-Appellant.

(D.C. No. CR-04-173-R)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.

Khamphay Souvannarath pled guilty to being a felon in possession of two

firearms, in violation of 18 U.S.C. § 922(g)(1), and to possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). 

The district court imposed a sentence of 120 months as to the first count, and a

sentence of 188 months as to the second count, with the sentences to run

concurrently. Souvannarath was sentenced on February 17, 2005, which was after

the decision was filed in United States v. Booker, 125 S.Ct. 738 (2005). On
2

appeal, Souvannarath challenges his sentence as “unreasoned and unreasonable”

under the Booker standards. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we affirm.

I. Background

On July 28, 2004, law enforcement officers served a no-knock search

warrant at Souvannarath’s residence in Enid, Oklahoma. Prior to serving the

search warrant, officers stopped Souvannarath’s vehicle and detained him. Under

the driver’s seat of Souvannarath’s vehicle, officers found several coin bags

containing a white powder. Officers also discovered another bag with a larger

amount of white powder. After chemical analysis of the substance, it was

positively identified as 9.33 grams of methamphetamine. During the search of

Souvannarath’s residence, officers found two fully loaded handguns in a bedroom

dresser. 

II. Discussion

Souvannarath argues that the district court failed to adequately consider the

sentencing factors set forth in 18 U.S.C. § 3553(a), and as a result, it imposed an

excessive sentence. Additionally, under § 3553(c), he contends that the district

court failed to sufficiently articulate reasons for the 188 month sentence. 

We review “the district court’s legal interpretation and application of the

sentencing guidelines de novo and review the court’s factual findings for clear

error, giving due deference to the district court’s application of the guidelines to
1

 The statutory maximum for Souvannarath’s firearms offense was 120 months.

3

the facts.” United States v. Henry, 164 F.3d 1304, 1310 (10th Cir. 1999). 

Moreover, we now review sentences for “reasonableness” looking to the factors

discussed in 18 U.S.C. § 3553(a) for guidance. Booker, 125 S.Ct. at 766; see

United States v. Morales-Chaires, No. 05-1190, 2005 WL 3307395, at *4 (10th

Cir. Dec. 7, 2005) (applying the reasonableness standard to a post-Booker

sentencing).

In light of Souvannarath’s status as a career offender under U.S.S.G. §

4B1.1, a total offense level of 29, and a criminal history category of VI, the

presentence report calculated his guideline range to be 151 to 188 months.1

Neither Souvannarath nor the government raised any objections to the presentence

report. At sentencing, Souvannarath asked the district court for leniency and a

sentence of six years. The government made no recommendation. After

considering the applicable guideline range, the district court stated:

Well, Mr. Souvannarath, I have read and considered the presentence

report and your case . . . and I must say that based upon your history,

I just–I just disagree with your assessment of the case. I do

understand that I’m not bound by the guidelines, but I think in this

case I certainly have to give them deference and I think they’re

appropriate in this case, and because of your history of violence and

your involvement with weapons and drugs, that the high end of the

guidelines are appropriate in your case.

Vol. II at 6. 
4

We conclude that the district court’s statements reflect that it properly

considered the sentencing factors enumerated in § 3553(a). See United States v.

Kelley, 359 F.3d 1302, 1305 (10th Cir. 2005) (stating that we do not require the

district court “to consider individually each factor listed in § 3553(a) before

issuing a sentence,” “nor do we demand that the district court ‘recite any magic

words’ to show us that it fulfilled its responsibility to be mindful of the factors

that Congress has instructed it to consider”) (citation omitted). Similarly, we

determine that the district court satisfied its burden to “state in open court the

reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). On a

final note, we observe that there is nothing in the record to suggest that

Souvannarath’s 188 month sentence, although at the high end of the guideline

range, is unreasonable. 

Accordingly, Souvannarath’s sentence is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge