PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GARRETT JOSEPH HURST, Defendant - Appellant. No. 22-7041

________________ _________________ Appeal from the United States District Court for the Eastern District of Oklahoma

(D.C. No. 6:21-CR-00120-BMJ-1)

________________ _________________ Meredith O’Harris (Adam Mueller, with he r on the briefs), Haddon, Morgan and Foreman, P.C., Denver, Colora do, appearing for Appellant. Lisa C. Williams, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with he r on the brief), Office of th e United States Attorney for the Eastern District of Oklahoma, Mus kogee, Oklahoma, appearing for Appellee.

________________ _________________ Before BACHARACH , BRISCOE , and MORITZ , Circuit Judges.

________________ _________________ BRISCOE , Circuit Judge.

________________ _________________ Defendant Garrett Hurst pleaded guilty to one count of knowingly engaging and attempting to engage in a sexual act with an Indian who had attained the age of 12 years but not the age of 16 years, and who was at least four years younger than FILED United States Court of Appeals Tenth Circuit 

### March 1, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 12 Hurst, in violation of 18 U.S.C. §§ 2243(a), 2246(2)(A), 1151, and 1152. At sentencing, the district court varied upward from the advi sory Guidelines imprisonment range and imposed the maximu m term of imprisonment of 180 months, to be followed by a thirteen-year term of supervised release. Hurst now appeals, arguing that (1) the district court erred in rejecting a Federal Rule of Criminal Procedure 11(c)(1)(C) plea ag reement that was proposed by the parties, (2) the district court erred in conc luding that Hurst was ineligib le for a two-point reduction for acceptance of responsibility , (3) the sentence imposed by the district court was substantively unreasonable, and (4) the dist rict court committed plain error by failing to explain why it selected a thirteen-year term of supervised release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district

court.
I The following facts are taken from the presentence investigation report that was filed in this case and adopted by the di strict court at the ti me of sentencing. ROA, Vol. III at 364. The Town of Muldro w, Oklahoma is located within the special maritime and territorial jurisdiction of the Cherokee Nation Reservation. At approximately 2:30 a.m. on the morning of December 24, 2020, two officers from the Muldrow Police Department, Riley Brooks and John Farmer, were on patrol when they observed a vehicle parked on a dead-e nd road on a parcel of private property within the city limits. The officers recognized the vehicl e as one that was suspected of being involved in reports of the driv er impersonating a Fort Smith, Arkansas Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 23 police officer. The two officers approach ed the vehicle on foot and witnessed a visible light bar in the back of the vehicle. The officers then initiated contact with the driver, who they identif ied as Hurst. In speaki ng with Hurst, the officers observed a young female, late r identified as thirteen-y ear-old A.S., who was an enrolled member of the Cherokee Nation, layi ng in the reclined front passenger seat of the vehicle. Officer Brooks also obser ved a dash cam video recorder mounted on the front windshield of the vehi cle. After the officers spoke with Hurst, Hurst agreed to take A.S. back to her residence. The officers followed Hurst as he drove A.S. back to her residence and dropped her off at the front door. Hurst then quickly left A.S.’s house before the officers were able to return his identifica tion card to him. The officers spoke to A.S. ’s father, who told them he did not know where A.S. had been. A.S. explained to the officers that she had snuck outof her home and took her father’s cellphone with her. During a shift change on the morning of December 24, 2020, Officer Brooks, who was completing his shift, informed Officer Mark Harkins, who was beginning his shift, of the encounter with Hurst and A.S. earlier that morni ng. Officer Harkins decided to investigate the matter further. Officer Harkins went to A.S.’s residence that morning and spoke with A.S.’s father. A.S.’s father agr eed to allow Officer Harkins to speak with A.S. A.S. told Officer Harkins th at she met Hurst in Roland, Oklahoma, approximately a mont h-and-a-half earlier. A.S. stated that Hurst obtained her cellphone number and the two began to exchange text messages. According to A.S., she texted Hurst on the evening of December 23, 2020, and asked him to pick Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 34 her up. A.S. stated that Hurst picked he r up at her house at approximately 9:00 p.m. that evening and the two drove around Muldro w. A.S. stated th at Hurst repeatedly tried to persuade her to go to his house with him, but she declined to do so. A.S. stated that at some point, Hurst parked his car in the is olated location where the two officers later found them early on the morning of December 24, 2020. According to A.S., Hurst showed her how the front passenger seat could be adjusted so that it lay flat like a bed. A.S. stated that at approximately that sa me time, Hurst began to bite his bottom lip in a suggestive manner and pl aced his hand on her thigh. A.S. told Officer Harkins that Hu rst’s behavior led her to believe he wanted to have sex with her. A.S. stated that she repeatedly asked Hurst to ta ke her home, but that Hurst ignored her requests. A.S. disclosed thatshe and Hurst had sex in Hurst’s vehicle prior to the two officers arri ving and speaking with Hurst. After obtaining this information from A.S., Officer Harkins discontinued the interview with A.S. and advi sed A.S.’s father that she needed to be medically and forensically evaluated. A. S. provided Officer Harkins with the items of clothing she was wearing when she was with Hurst on the early morning hours of December 24, 2020. Officer Harkins transported A.S. and he r father to a facility in Fort Smith for a forensic interview and medical evaluation. During the forensic interview, A.S. stat ed that while she wa s in the car with Hurst in the early morning hours of Decem ber 24, 2020, Hurst touched her vagina over and under her shorts and also placed her hands on his penis. A.S. further stated that Hurst eventually “got on top of her, pulled his pant s down and inserted his penis Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 45 into A.S.’s vagina.” Id. , Vol. II at 124. “A.S. indicated [that] while Hurst raped her, he was seen moving the dash cam video reco rder located on the front windshield of the vehicle.” Id. A.S. stated, however, that sh e was “not aware where Hurst was pointing” the video recorder “or wh ether the device was turned on.” Id. “A.S. believed [that] Hurst ejaculate [d] on her shorts and on the fr ont seat of the vehicle.” Id. According to A.S., she asked Hurst how ol d he was, “but he would not answer.” Id. During the medical evaluation, swabs we re collected from A.S.’s vagina, anus, mouth, and neck and sent to the Oklahoma State Bureau of Investigation (OSBI) for forensic testing. On December 30, 2020, officers from the Muldrow Police Department collected buccal swabs from Hu rst and submitted them to the OSBI for forensic testing. On June 1, 2021, the OSBI issued a report stating that human male DNA was detected on the vaginal swabs ta ken from A.S. The report concluded, based upon a comparison of this human male DNA to the buccal swabs taken from Hurst, that Hurst was the c ontributor of the DNA detected on the vaginal swabs taken from A.S. Following the interviews with A.S. on December 24, 2020, officers from the Muldrow Police Department went to Hurst’ s home and arrested hi m for the suspected rape of A.S. The officers searched and inventoried Hurst’s vehicle. During that process, the officers found, in relevantpart, a windshield-mounted camera. The officer also conducted a “manual forensic search” of the cellphone that Hurst had used to communicate with A.S. Id . at 125. That search rev ealed that Hurst had been Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 56 in communication with A.S. by way of te xt messages and ph one calls since the middle of November 2020.
II On March 31, 2021, a criminal comp laint was filed in the United States District Court for the Eastern District of Oklahoma charging Hurst with one count of sexual abuse of a minor in I ndian Country, in violation of 18 U.S.C. § 2243(a)(1), 1151, and 1152. On April 16, 2021, a federal grand ju ry returned a one-count indictment charging Hurst with knowingly engaging an d attempting to engage in a sexual act with “an Indian who had atta ined the age of 12 years but not the age of 16 years, and who was at least four years younger than th e defendant,” in viol ation of 18 U.S.C. §§ 2243(a), 2246(2)(A), 1151, and 1152. ROA, Vol. I at 20. On July 23, 2021, Hurst filed a petition to enter a plea of guilty to the single count alleged in the indictme nt. Along with the petitio n, Hurst filed a copy of a written plea agreement that he had entere d into with the government “pursuant to Rule 11(c)(1)(C) of the Federal Ru les of Criminal Procedure.” Id . at 34. The plea agreement included a section titled “S ENTENCING RECOMMENDATION(S)” that stated, in relevant part, th at the parties “agree[d] thata sentencing range of 24-30 months imprisonment [wa]s the appropr iate disposition of the case.” Id . at 41. The district court held a change of plea hearing on that same date. Id ., Vol. III at 6. The district court a dvised Hurst during the hearing th at it “c[ould] reject this plea agreement if [it didn’t] find it in the interest of justice.” Id . at 25. Based upon Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 67 Hurst’s responses under oath, th e district court found that he was “competent to enter this plea, that it [wa]s ente red voluntarily,” and that “there [wa]s a basis in fact for th[e] plea.” Id . at 28–29. Consequently, the distri ct court “f[ound] [Hurst] guilty as charged.” Id . at 29. On December 17, 2021, the probation o ffice issued a presentence investigation report (PSR). 1 The PSR calculated a total offense level of 19, a criminal history score of 15, and a criminal history categor y of VI. Based upon th ese calculations, the PSR arrived at a “guideline imprisonment range [of] 63 months to 78 months.” Id ., Vol. II at 65. The PSR noted, however, that “[i]f the Court adopt[e d] the terms of the plea agreement, the guideline calculations would be as follows 24 to 30 months custody,” meaning that “the impact of th e plea agreement [would be] 33-48 months.” Id

. On March 22, 2022, the district court held a sentencing hearing. Id ., Vol. III at 31. At the outset of the hearing, the dist rict court advised th e parties that, after reviewing the PSR, it “w[ould] not be accep ting the parties’ plea agreement” because it “d[id] not believe it [w a]s in the interest of ju stice given the facts and circumstances of this case as well as th e defendant’s lengthy and violent criminal history.” Id . at 33. Government counsel, in re sponse, acknowledged that the parties had “miscalculated” the guideline sentencing range in the origin al plea agreement

1 The probation office issued an in itial PSR on November 30, 2021, but subsequently revised it to reflect a su ccessful objection ma de by Hurst to the originally calculated total offense level. Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 78 and advised the district court that the parties had “come to an alternative resolution of a plea, pursuant to Rule 11(c )(1)(C), where the [sentencing] range would be . . . the guideline range that was recommended in the [PSR] of 63 to 78 months.” Id . In other words, government counsel advised the district court that the parties had agreed to the terms of an amended plea agreem ent. Government counsel argued that, although the advisory guideline sentencing ra nge in the PSR was “somewhat still low range,” “a guideline sentence [wa]s [never theless] appropriate because it w[ould] save the victim . . . from having to face the trauma of trial.” Id . at 34. The district court expressed concern to government counse l “that th[e] conduct that lead us here could very well continue a nd unfortunately occur again with other victims.” Id

. (question mark omitted). The district cour t also, in conversing with defense counsel on the record, noted that its rejection of the original plea agr eement was not “based exclusively on [Hurst’s] criminal history,” butalso “the nature and circumstances of this offense.” Id . at 40. Later in the hearing, de fense counsel advi sed the district court that the amended plea ag reement was “identical” to th e original plea agreement, “with one exception,” i.e., the originally ag reed-upon sentencing range of “24 to 30” months had been “crossed out . . . and replaced . . . with 63 to 78 months.” Id . at 40– 41. The district court stat ed in response that it was “rejecting this amended plea agreement as well” because it was not “in the interest of justice for the reasons as previously articulated.” Id . at 42. The district court th en asked Hurst how he wished to proceed. Defense counsel st ated, in response, that Hurs t’s “preference would be to have more time to consider wh at a likely outcome w[ould] be at trial,” but that “[i]f Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 89 pressed by the Court, under th e circumstances, . . . he w[ould] withdraw his guilty plea” in order to “figure out what [to] do.” Id . at 43. The districtcourt continued the case for thirty days to a llow Hurst an opportunity to decide how to proceed. Hurst formally withdrew his guilty plea on April 21, 2022. The district court in turn set the ca se for trial beginning in May 2022. On May 10, 2022, a grand jury return ed a superseding i ndictment charging Hurst with one count of knowingly engaging and attempting to engage in a sexual act with “an Indian who had atta ined the age of 12 years but not the age of 16 years, and who was at least four years younger than th e defendant,” in viol ation of 18 U.S.C. §§ 2243(a), 2246(2)(A), 1151, and 1152. Id ., Vol. I at 50. The case proceeded to ju ry qualification and selec tion on May 18, 2022. The trial then commenced on May 24, 2022. The government presented testimony from eleven witnesses that day and then rested its case. Hurst moved for judgment of acquittal, which was deniedby the district court. Immediately following the district c ourt’s denial of Hurst’s motion for judgment of acquittal, Hurst entered a plea of guilty to the single count alleged in the superseding indictment. In accepting Hurs t’s guilty plea, the di strict court advised him of his rights and, in pa rticular, advised Hurst that the punishment imposed could “be the same as any punishment that would result with you simply going to trial” and that the court was not bound by the recommendations of the parties. Id ., Vol. III at 337. Hurst stated under oath that he understood this. Id . The district court accepted Hurst’s plea, finding that Hurst was “compet ent to enter th[e] pl ea, that it [wa]s Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 910 entered voluntarily and with a full understa nding of the rights being given up.” Id . at 341. The district court also ordered a supplement to the PSR. On June 1, 2022, the probation offi ce prepared a suppl emental PSR. The supplemental PSR applied a total offense leve l of 20, a criminal history category of VI, and a resulting Guidelines imprisonm ent range of 70 to 87 months. The government objected, arguing, in relevant part, that Hu rst was not entitled to a two-level reduction for acceptance of respons ibility pursuant to U.S.S.G. § 3E1.1(a) because “[he] exercised his right to trial by jury and only at the conclusion of the Government’s case and the denial of hi s Rule 29 Motion did [he] enter a plea of guilty.” Id ., Vol. II at 112. The probation offi cer agreed with this objection and revised the PSR accordingly. The final PSR, which was issued on June 27, 2022, applied a total offense level of 22, a crim inal history category of VI, and a resulting Guidelines imprisonment ra nge of 84 to 105 months. On August 31, 2022, the district court held a sentencing hearing for Hurst and adopted the final PSR. The district c ourt varied upwards from the advisory Guidelines range and sentenced Hurst to a term of imprisonment of 180 months, to be followed by a thirteen-year te rm of supervised release. After final judgment was entered in th e case, Hurst filed a timely notice of appeal.
III Hurst raises four issues on appeal. He first argues th at the district court erred in rejecting the parties’ ame nded plea agreement. Next, Hu rst argues that the district Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1011 court erred as a matter of la w in concluding that he was ineligible for a two-point reduction in his offense level for acceptance of responsib ility. Third, Hurst argues that the district court’s imposition of th e statutory maximum sentence of 180 months was substantively unreasonable. Lastly, Hurst argues that the district court plainly erred by failing to explain why a thirteen-y ear period of supervised release was appropriate. For the reasons outlined below, we reject all of these arguments.
A Hurst argues in his first issue on appeal that “[t]he district court erred in rejecting the parties’ [amende d] Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement.” Aplt. Br. at 9. “We review a district court’s decision not to accept a plea agreement for abuse of discretion.” United States v. Vanderwerff , 788 F.3d 1266, 1271 (10th Cir. 2015). “‘A district court abuses its discretion if its adjudication of a claim is base d upon an error of law.’” Id . (quoting United States v.
Crowe , 735 F.3d 1229, 1244 (10th Cir. 2013)). “Similarly, when a district court predicates its ruling on an ‘improper and i rrelevant factor,’ th is error ‘provides a strong indication that the district court abused its discretion.’” Id . (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1132 (10th Cir. 2010)). “The ‘starting point’ for an inquiry into a district court’s rejection of a guilty plea is Rule 11 of the Federal Ru les of Criminal Procedure.” Id . (quoting United States v. Robertson , 45 F.3d 1423, 1437 (10th Cir. 1995)). “Rule 11 provides: ‘An attorney for the government and the defendant ’s attorney . . . ma y discuss and reach a Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1112 plea agreement.’” Id . (quoting Fed. R. Crim. P. 11(c) (1)). “The district court may then either accept or reject that agreement in its substa ntial discretion, ‘[b]ut that discretion is not without limit.’” Id . (quoting United States v. Rakes , 510 F.3d 1280, 1286 (10th Cir. 2007)). “Plea bargains are commonly either ‘c harge bargains,’ where the prosecutor agrees to drop some charges in exchange for a guilty plea on others, or ‘sentence bargains,’ where the prosecutor agrees to support, or at le ast not oppose, a particular
sentence.” Id . (quoting Robertson , 45 F.3d at 1437). “Courts enjoy considerable discretion in their consideration of sentence bargains because ‘t he prosecution’s role . . . is strictly advisory,’ butjudicial discretion is more limited with respect to charge bargains because such barg ains ‘are primarily a ma tter of discretion for the prosecution’ and the ‘court’s sentencing discre tion is implicated only as an incidental consequence of the prosecution’s exer cise of executive discretion.’” Id . (quoting Robertson , 45 F.3d at 1437–38). There is no dispute that the parties’ am ended plea agreement in this case was a sentence bargain. The amended plea agreem ent did not include any agreement by the government to drop charges in exchange for Hurst’s guilty plea; indeed, Hurst was only indicted on a single charge. Nor di d the amended plea agreement include any agreement by the government to allow Hurst to plead guilty to a lesser charge than alleged in the indictment. Instead, the amended plea agreement included the government’s agreement that, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, a sentencing range of 63 to 78 months was “the appropriate Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1213 disposition of the case.” ROA, Vol. I at 41 (quoting language of first plea agreement); see id ., Vol. III at 33–34 (transcript of sentencing hearing at which government counsel described the terms of the parties’ amended plea agreement, which was identical in all but one respect to the original plea agreement). Because the parties’ amended plea agreement was a se ntence bargain, the district court had “considerable discretion” to accept or reject it. Vanderwerff , 788 F.3d at 1271. Hurst argues that when the district cour t rejected the ame nded plea agreement, it “explained it was primarily concerned w ith two things: Mr. Hurst’s criminal history and the ‘nature and circumstances of [this] offense.’” Aplt. Br. at 15–16 (quoting ROA, Vol. III at 39 2 ). Hurst argues that “[b]as ed on the court’s statements, it appears that these two things led the court to believe e ither that [he] had committed other sexual assaults for wh ich he had not been caught, or that he would commit additional sexual assaults if re leased from prison too soon.” Id . at 16. Hurst argues that “there was no evidence—and certainly not a preponderance of evidence—that

2 It should be noted that th is citation is to the origin al sentencing hearing that was held on March 22, 2022, at which the district court reje cted the parties’ original and amended plea agreements. Notably, th e district court’s re ference to Hurst’s criminal history came after the district c ourt rejected the orig inal plea agreement, while it was considering wh ether to accept the amended plea agreement, and was in direct response to defense counsel’s argum ent that Hurst’s cr iminal history was driven largely by “alcohol and drug use” and that his criminal o ffenses were “the kind . . . that you see in communities of povert y.” ROA, Vol. III at 37. The district court stated in response that it “ha[d] no doubt that his struggles with alcohol likely contributed to many of the decisions that he ’s made, even with re spect to his violent behavior.” Id . at 39. The district court further st ated that it found “[t]he nature and circumstances of this offense . . . equally troubling, if not more troubling,” than his criminal history. Id

. Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1314 [he] had committed prior sexual assaults for which he hadn’t been caught.” Id . He notes in support that “his pr ior offenses were largely drug and alcohol related, with some physical assaults, but no sex offenses suggesting he was a repeat offender.” Id

. Thus, Hurst argues, “[t]he district court’s contrary conclusion . . . appeared to be based on ‘suspicions’ or speculation,” whic h are an improper basis for a sentencing decision. Id

. Hurst further argues that “the ‘nature a nd circumstances of [the] offense’ did not support a conclusion that [he] was or would be a repeat sex offender.” Id . at 17. Hurst argues that “[i]n concl uding otherwise, the court point ed to a dash cam in [his] car and the fact that police seizedwomen’s underwear from [his] home.” Id . He argues that it was not reasonable for the distri ct court to infer from this evidence that he “had committed other sex offenses.” Id . He argues in support that “[i]t is entirely speculative that the presence of a dash cam” or “the se izure of women’s underwear” “meant that [he] had committed or was pla nning to commit other sex offenses.” Id

. Hurst further argues that any such infere nce “was incorrect” because his father testified at sentencing, “w ithout contradiction and without being cross-examined by the government,” “that he [the father] purchas ed the dash cam for hi s car . . . and that the purpose of the dash cam was to have ev idence of fault if th ere was ever a car accident.” Id . Hurst notes that his “father also testified that the women’s underwear belonged not to any victim but to . . . Hu rst’s ex-fiancé, who had moved out without taking all her clothes.” Id . at 17–18. Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1415 Lastly, Hurst argues that the amended plea agreement, “unlike the [original] plea agreement,” “did not give [him] a disc ount off what the guidelines anticipated as an appropriate sentence.” Id . at 19. He argues that “[b]ecause the [amended] plea agreement stipulated to a sentence within the appli cable guidelines range, the [district] court should have gi ven it more consideration so as to avoid an unwarranted sentencing disparity between sim ilarly situated defendants.” Id

. In order to address Hurst’s arguments, we begin by recounting in some detail what transpired at the orig inal sentencing hearing on Marc h 22, 2022. The district court opened the March 22, 2022 sentenci ng hearing by “announc[ing] that [it] w[ould] not be accepting the parties’ [original] plea agreement.” ROA, Vol. III at 33. The district court explained: “I do not believe it is in the interest of justice given the facts and circumstances of this case as we ll as the defendant’s lengthy and violent criminal history.” Id . After hearing the distri ct court’s announcement, the government’s counsel stated th at the parties “ha[d] come to an alternative resolution of a plea, pursuant to Rule 11(c)(1)(C), where the range would be—the guideline range that was recommended in the presen tencing report of 63 to 78 months.” Id

. Government counsel further stated: “We think a guideline sentence is appropriate because it will save the vic tim in this case, who is a minor, from having to face the trauma of trial.” Id . at 34. The district cour t responded by stating that it “appreciate[d] [the government ’s] concern” for the vic tim, but it asked government counsel whether, “as part of your consideration” of the amended plea agreement, there was any “discussion about threats to the public at larg e, the prospect that this Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1516 conduct that lead us here c ould very well continue and unf ortunately occur again with other victims?” Id . Government counsel res ponded: “Yes, Your Honor. Unfortunately, with these type s of cases that’s always a concern, and it’s always something that we consider, a nd so it’s sort of a balanci ng act that we have where we want to prevent more trauma from occurring to this particular victim, at the same time protecting the public from this defendant.” Id . at 35. The district court then asked Hurst’s counsel to comment on the amended plea agreement. Defense counsel focused on Hu rst’s criminal history and argued that Hurst’s criminal history sc ore and category overrepresente d the seriousness of his past criminal offenses. Defense counsel further argued that, in terms of Hurst’s “danger to the public at large,” his prior convictions were rela ted to “alcohol and drug use” and that his criminal history generally exhibited “the signs of the kind of offenses that you see in communities of poverty.” Id . at 37. Defense counsel also argued that, to the extent the district cour t “ha[d] suspicions that maybe there was other conduct that [Hurst] ha[d] not been caught for,” that was not reflected by Hurst’s criminal history and that the fede ral offense of conviction was merely “a crime of opportunity” involving “a vi ctim who was failed by society.” Id . at 37–38. Relatedly, defense counsel argue d that it was “unfortunate th at this course of criminal conduct occurred” but that “there are not th e . . . kind of signals that would indicate that we have some previously uncaught serial rapist here.” Id . at 38. At the conclusion of defens e counsel’s arguments, the di strict court stated that it had “no doubt that [Hurst’s ] struggles with alcohol lik ely contributed to many of Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1617 the decisions that he’s ma de, even with respect to his violent behavior.” Id . at 39. The district court emphasized, however, th at Hurst’s “criminal history alone” was “not the sole factor a nd the sole basis of th[e] Court’s concerns.” Id . The district court explained that, in its view, “[t]he nature and circumstan ces of this offense [we]re equally troubling, if not more troubling.” Id . The district c ourt “point[ed] to the fact . . . that here we have a defendant who is what I believe 35 years old and the victim was a 13-year-old girl.” Id . The district court also noted “the fact that it almost seems as if this is a situation that—what may—orI couldn’t glean incredibly [sic] from the PSR, but the use of—or the presence of cameras or recording devices, the use of the defendant’s younger brot her to cultivate this relationship.” Id . at 39– 40. The district court stated : “All these things are of great concerns [sic] for me and things that I have weighed and continue to weigh and w ill continue to weigh either now or in the future, depending on what transpires here today.” Id . at 40. The district court also stated th at Hurst’s criminal history was “one aspect,” but again emphasized that, in its view, “the nature and circumstan ces of this offense alone justif[ied] the rejection of [the original] plea agreement.” Id

. Ultimately, after hearing briefly from Hurs t’s counsel, the district court stated that, “given [its] pr ior articulation of its concerns and for the reasons that were previously announced with respect to the initial 11(c)(1 )(C) plea agreement,” it was “rejecting th[e] amended pl ea agreement as well.” Id . at 42. Returning to Hurst’s arguments on appeal , we note that nothing in the record indicates that the district court denied the amended plea agreement on the grounds Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1718 that it “believe[d] . . . that Mr. Hurst had committed other sexual assaults for which he had not been caught.” Aplt. Br. at 16. Thus, we summa rily reject th at argument. The record on appeal does, however, provide some support for Hurst’s assertion that the district court was c oncerned that “he would commit additional sexual assaults if released from prison too soon.” Id . After government counsel informed the district cour t that the parties had an amended plea agreement they wanted the district court to consider, the district c ourt asked government counsel whether the government’s cons ideration of the terms of the amended plea agreement included any “discussion about threats to the public at large, the prospect that this conduct that lead us here c ould very well continue and unf ortunately occur again with other victims?” ROA, Vol. III at 34. Th is comment does seem to suggest that the district court was concerned about the possibility of Hurs t reoffending upon release from imprisonment. That said , however, the district cour t made no other mention of this concern in rejecting the amended pl ea agreement. Thus , it is difficult to determine if the district c ourt actually relied on this c oncern in determining Hurst’s sentence. Further, it is unc lear from this single statemen t whether the district court was concerned about Hurst committing anot her sexual offense upon release from prison, or more generally committi ng additional criminal offenses. Assuming, for purposes of argument only, that the district court did rely on this concern in determining Hurst’s sentence, we conclude that there wa s a basis in the record to support the di strict court’s concern abou t him reoffending. Hurst’s criminal history, as detailed in the PSR, was lengthy, beginning when he was Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1819 approximately nineteen years old, and c ontinuing up until the time he committed the offense of conviction in this case. Further, many of Hurs t’s offenses of conviction, as well as at least two stat e charges that were pending at the time of sentencing in this case, were violent in na ture and involved female vic tims. These included: (1) a January 3, 2009 offense of battery in the second degree that occurred when Hurst got into a physical argument with his girl friend and a witness who attempted to intervene; Hurst assaulted th e witness repeatedly in the head with a golf club, and also punched and choked the wi tness, causing the witness to collapse to the ground; (2) a July 15, 2010 offense of domestic abuse and assau lt and battery, during which Hurst hit his girlfriend in the face, twiste d her arms, slammed her to the floor, and twisted her neck in an attempt to break it; (3) a March 24, 2015 offense of domestic assault and battery by strangulation, during which Hurst al legedly choked his girlfriend in the kitchen of their home and then chased after his girlfriend in a high speed automobile chase; (4 ) a November 24, 2015 offense of domestic assault and battery, during which Hurst threw an unknown object at his girlfriend’s head, causing her to bleed, and then pushed her into the shower and began spraying water on her head in an attempt to wa sh the blood away; (5) an August 19, 2016 offense of domestic assault and battery by strangulati on, during which Hurst allegedly hit a woman (apparently an ex-girlfriend) on th e back of her head, pulled her hair, took control of her vehicle, made her walk th rough the woods, held her down on train tracks while a train was coming, and punched her lips about fi ve to six times; (6) an October 10, 2019 offense of domestic abuse and assault and battery, during which Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 1920 Hurst allegedly hit his girlfriend in the fa ce, injuring her jaw, and then grabbed her by the throat; and (7) a March 5, 2020, o ffense of disturbing the peace, during which Hurst allegedly threatened to kill both of hi s parents, assaulted hi s father, and threw a television remote at his mother, almost knocking her teeth out. Some of Hurst’s offenses also presented a danger to the pub lic and/or exhibited a disregard for law enforcement. These include d: (1) a July 17, 2016 offe nse of endangering others while eluding/attempting to elude a police officer, during which Hurst was observed by a police officer driving 102 miles per hour in a 45 mile s per hour zone; Hurst then extinguished his lights in an attempt to elude the officer, and subsequently engaged in a high-speed chase during which Hurst dr ove into oncoming traffic on multiple occasions without his headlights on; (2) an August 19, 2016 offense of eluding/attempting to elude a police officer , during which Hurst fled from a police officer at a high rate of speed; (3) a January 25, 2017 offense of public intoxication, during which Hurst continually spit on the b ack seat of the patrol unit following his arrest; and (4) a December 30, 2020 offens e of impersonating a public officer, during which Hurst allegedly followed a police de partment employee in his vehicle and activated a white strobe light inside of his vehicle to mimic a police vehicle. Although there is no record of Hurst prev iously committing rape or sexual assault, the record does clearly suggestthat the relatively light se ntences that Hu rst received for his past crimes did nothing to dete r him from committing additional crimes. As to the possibility of Hurst committing similar sexual offenses in the future, the record in this case indi cates that Hurst met the vi ctim “through his 15-year-old Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2021 younger brother,” who allegedly told the vic tim that Hurst “was 21 years old.” ROA, Vol. II at 48. The victim allegedly asked Hurst “how old he was, but he would not
answer.” Id . Thus, the record suggests that Hurst took advantage of the victim’s youth and inexperience in orde r to persuade her that he was much younger than he actually was and, in turn, to sexually exploit her. Given these facts, the district court may well have concluded th at imposing a longer senten ce could potentially help prevent, or at least lessen the chances of, Hurst committing a fu ture offense of a similar nature. Although Hurst is correct th at there is nothing in the record that specifically indicates that he is at high risk of committi ng future sexual offenses, it appears that the district court acted well within its discretion in imposing a sentence that would help prevent any future such offenses. That leaves only Hurst’s argument that th e district court should have given the amended plea agreement “more considerati on” because it “did not give [him] a discount off what the guidelines anticipated as an appropria te sentence” and also “to avoid an unwarranted sentencing disparity between similarly situated defendants.” Aplt. Br. at 19. We reject this argument. As we have already noted, the district court reasonably concluded that the advisory Guidelines sentencing range was too low given the nature of the offe nse of conviction and Hurst’s lengthy and violent criminal history. As for Hurst’s sentencing disp arity argument, he points to no specific, comparator cases involving similarly situat ed defendants that w ould help establish that the district court failed to adequately consider, as outlined in § 3553(a)(6), the need to avoid unwarranted sentence disp arities among defendants with similar Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2122 records who have been found guilty of similar conduct. See United States v. Walker , 74 F.4th 1163, 1206 (10th Cir. 2023) (considering seven co mparator cases offered by defendant in support of his ar gument for a particular senten ce). To the extent he is simply referring generally to any defendant who has the sa me Guideline range as he does, that alone is insufficien t because § 3553(a)(6), in refe rring to similarly situated defendants, clearly contemplates defenda nts with similar criminal history who committed similar crimes.
B In his second issue on appeal, Hurst argue s that the district court erred in concluding that he was inel igible for a two-point re duction for acceptance of responsibility pursuant to U.S.S.G. § 3E1. 1(a). “[W]hether a defendant has accepted responsibility is a factua l question that we review for clear error.” United States v.
Lozano , 514 F.3d 1130, 1133 (10th Cir. 2008). “‘The sentencing judge is in a unique position to evaluate a defendant’s acceptan ce of responsibility. For this reason the determination of the sentencing judge is entitled to great deference on review.’” Id

. (quoting United States v. Dazey , 403 F.3d 1147, 1172 (10t h Cir. 2005) (internal quotation marks omitted)). Section 3E1.1(a) of the Sentencing Guide lines provides that “[i]f the defendant clearly demonstrates acceptance of respon sibility for his offe nse,” the sentencing court should “decrease the offe nse level by 2 levels.” U. S.S.G. § 3E1.1(a). “The burden is on the defendant to prove, by a preponderance of the evidence, his Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2223 entitlement to the se ntence reduction.” United States v. March , 999 F.2d 456, 463 (10th Cir. 1993). The Application Notes to § 3E1.1 provi de guidance for determining whether a defendant has demonstrated acceptance of responsibility for the offense of conviction. To begin with, Application Note 1 provides, in releva nt part, that “[i]n determining whether a defendant qualifie s under subsection (a), appropriate considerations include, but are not lim ited to, the followi ng:” (1) “truthfully admitting the conduct comprising the offens e(s) of conviction, ” (2) “post-offense rehabilitative efforts (e.g., counseling or drug treatment),” and (3) “the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.1. Application Note 3 provid es that the “[e]ntry of a plea of guilty prior to the commencement of trial combined with trut hfully admitting the conduct comprising the offense of conviction, and tr uthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under § 1B1.3 . . . will constitute significant evidence of accepta nce of responsibility for the purposes of subsection (a).” Id ., cmt. 3. Lastly, Applicati on Note 5 provides that “[t]he sentencing judge is in a unique position to evaluate a defe ndant’s acceptance of responsibility” and, “[f]or this reason, the determination of the sentencing judge is entitled to great deference on review.” Id ., cmt. 5. A defendant’s “decision to go to trial, in and of itself, does not foreclose his eligibility for the reduction.” March , 999 F.2d at 463. “However, situations in which a defendant can demons trate acceptance of responsib ility and still go to trial Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2324 will be,” as Application Note 2 to § 3E1.1 indicates, “‘rare.’” Id . (quoting U.S.S.G. § 3E1.1 cmt. n.2). According to Applicat ion Note 2, an example of such a rare situation is “where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g ., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).” U. S.S.G. § 3E1.1 cmt. n.2. Hurst argues in his appeal that “the district court erred in ruling that . . . § 3E1.1(a) has a ‘cutoff’ point and is unava ilable as a matter of law if the defendant takes his case to trial, rega rdless of whether the defenda nt previously pleaded guilty pursuant to an agreement before trial and, after the court re jected that plea, entered a second guilty plea before the ju ry reached a verdict.” Aplt. Br. at 26. According to Hurst, he “was legally eligib le for the two-point reduction” and “[t]he [district] court erred in ruling otherwise.” Id

. The problem with these arguments is that the district court did not rule that § 3E1.1(a) has a “cutoff” point and is una vailable to any defenda nt who proceeds to trial. During the sentencing hearing on Augus t 31, 2022, the district court questioned defense counsel about the re quested § 3E1.1(a) reduction and, in doing so, asked: “does not the application of that credithinge on the burden on the government in having to prepare for trial?” ROA, Vol. III at 352. De fense counsel re sponded that “one of these points has to do with the [government’s] burden . . . of having to prepare for trial,” and in turn conceded that Hurst “lost the opportunity to seek that third point.” Id . at 352–53. Defense c ounsel argued, however, th at “[t]he other two points . . . are . . . squarely focused on whether or not [t he defendant] ultimately takes Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2425 responsibility.” Id . at 353. Defense counsel argued that the only reason that Hurst proceeded to trial was because he was “s[eeking] just th e assurance that he wasn’t going to get nailed with so mething . . . like the max” se ntence, but “[t]he government refused to provide any assura nces with that regard.” Id . Defense counsel further argued that “[w]e came to the close of the government’s ca se and . . . [Hurst] didn’t have a defense to put up and he said, Well, okay, I guess the thing to do now is to plead guilty.” Id . at 354. In conclusi on, defense counsel argued that “the verdict is what matters” and that Hu rst was “entitled to t hose two points for taking responsibility prior to the verdict.” Id . at 355. Government counsel argued in response that they “st[oo]d primarily on [their written] motion.” Id . at 356. In that pleading, whic h was actually a letter filed in response to the final PSR, the government argued that “[i]n rare occasions, a Defendant can proceed to trial and still receive the Acceptance of Responsibility reduction” but that this did not include de fendants who contested material facts at trial. Id ., Vol. II at 113. Gove rnment counsel also noted at the sentencing hearing that “throughout the trial [H urst] availed himself of his right to cross-examine each and every witness, including the minor vict im, who, we all know, was put through the trauma of having to come in and tell her story in frontof strangers.” Id ., Vol. III at 357. In conclusion, govern ment counsel argued that Hurst “stopping short of submitting a case to the jury and then pleading guilty, after the overwhelming evidence that was presented of guilt, [wa]s not true a cceptance of responsibility.” Id

. Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2526 After hearing from both sides, the districtcourt concluded “that the removal of those credits” for acceptance of responsibility “[wa]s appropria te in this in stance . . . for the reasons that have been expresse d and incorporated in the government’s argument and brief, which the Court is adopting as its own here today.” Id . at 360. Thus, in sum, the district court did not rule as a matter of law that any defendant who proceeds to trial is precluded from receivi ng a two-point reduction for acceptance of responsibility pursuant to § 3E1.1(a). Rather , the district court concluded that Hurst was not entitled to that reduction because he contested material f acts at trial and only decided to plead guilty at the conclu sion of all the government’s evidence. Hurst also argues in his a ppeal that “to the extent the court did not make a legal ruling and instead chose notto apply the credit, the c ourt abused its discretion.” Aplt. Br. at 27. Hurst argues in support th at the two-point reduction “was appropriate because [he] repeatedly attempted to plead guilty pursuant to an agreement before trial, repeatedly gave a factual basis for his guilt, did not contes t any element of the offense, and ultimately pleadedguilty before the jury bega n deliberations or reached a verdict.” Id . “All of this,” Hurst argues, “‘cl early demonstrate[s] an acceptance of responsibility.’” Id . (quoting § 3E1.1, cmt. n.2). Hurst further argues “that the only reason [he] exercised his right to a jury tr ial was because the dist rict court rejected the prior plea agreements and, after th at, there was no plea offer available.” Id

. The only Tenth Circuit case that Hurst points to in s upport of his arguments is United States v. Gauvin , 173 F.3d 798 (10th Cir. 1999). In Gauvin , the district court granted the defendant a reduction for ac ceptance of responsibility pursuant to Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2627 § 3E1.1(a) because the defendant “admitted to all the conduct with which he was charged” and “simply disputed whether his acknowledged factua l state of mind met the legal criteria of intent to harm or cause apprehension.” Id . at 806. The government filed a cross-app eal challenging the district c ourt’s grant of the offenselevel reduction. This court affirmed, holding that the dist rict court’s decision “was not clearly erroneous.” Id . In reaching that conclusion, this court stated that while it “might not have reached the same decision” as the district court, “the deference afforded the sentencing judg e” compelled it to affirm. Id

. Although Hurst argues that Gauvin supports his position, we conclude that
Gauvin is distinguishable for at least two r easons. First, unlik e the defendant in
Gauvin , Hurst did not, at least during the tria l proceedings, admit to all the conduct with which he was charged. Instead, Hurst denied the conduct alleged by the government and, in turn, put the government to its burde n of proof. Second, our post- Gauvin decisions “confirm that the main takeaway from Gauvin is not that a defendant is necessarily en titled to an offense level reduction under § 3E1.1 when they can present similar factual circumstance s to that case, but th at the deference we show sentencing courts will usually resolve su ch cases in favor of the district judge’s conclusion.” United States v Nevarez , 55 F.4th 1261, 1266 (10th Cir. 2022). In other words, given the same fact s as were presented in Gauvin , we would likely affirm a district court’s decision to eith er deny or grant the reduction. Id

. In our view, Hurst’s case is more similar to United States v. Wiggins , 501 F. App’x 408 (6th Cir. 2012). In Wiggins , the defendant “attempted to plead guilty Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2728 pursuant to a plea agreement, but the distri ct court rejected th is plea at the initial sentencing hearing.” Id . at 414. The defendant “pro ceeded to trial where he was convicted on two counts related to [a] conspiracy” to manuf acture and distribute methamphetamine. Id . at 410. At sentencing, th e district court denied the defendant’s “request for a U.S.S.G. § 3E1.1 Acceptance-of-Responsibility Reduction.” Id . at 414. The defendant appealed a nd argued that the district court’s denial of his request was “a legal issue— [w]hat is required to constitute acceptance of responsibility—that [wa]s ent itled to de novo review.” Id . at 414–15 (internal quotation marks omitted). Th e Sixth Circuit rejected that argument, concluding that “it overlook[ed] the factual nature of the i nquiry: whether he ‘clearly demonstrate[d] his acceptance of responsib ility for his offense.’” Id . at 415 (quoting U.S.S.G. § 3E1.1(a)). The Sixth Circu it in turn concluded that “[t] he district court did not err in refusing to give [the defendant] the Acceptance-of-Responsibility Reduction because his conduct did not clearly demons trate his acceptance of responsibility for conspiring to manufacture and di stribute methamphetamine.” Id . The Sixth Circuit also noted “that even if th e district court had accepted hi s guilty plea, he would not be entitled to the reduction as a matter of right.” Id . Ultimately, “[ g]iving deference to the sentencing judge,” the Sixth Circui t “conclude[d] that th e district court’s determination that [defendant] did notclearly demonstrate acceptance of responsibility was not clearly erroneous.” Id

. In the end, we conclude that the district court in this case di d not clearly err in denying Hurst a two-level reduction pursuant to § 3E1.1(a). Although it is true that Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2829 Hurst entered into both an original and a revised plea ag reement with the government, the district court rejected bot h of those agreements out of concern for the proposed sentence that was agreed upon by the par ties. Thereafter, Hurst withdrew his guilty plea, proceeded to trial, forced the governmentto present all of its evidence against him, and did not admit to any of the conduct with which he was charged until the government had presente d all of its eviden ce against him. Moreover, during the government’s case -in-chief, Hurst cross-examined each government witness, including the minor vi ctim. Thus, Hurst clearly disputed the government’s case and his guilt of the charged offense. “Given this conduct,” Hurst’s “reasons for” proceedin g to trial are “immaterial.” See United States v. Landron-Class , 696 F.3d 62, 77 (1st Cir. 2012); see also United States v. Samuels , 521 F.3d 804, 817 (7th Cir. 2008) (concluding that dist rict court did not err in denying § 3E1.1 reduction because defendant proceeded to trial and put the government to the burden of proving elem ents to which he had agreed at his attempted plea).
C In his third issue on appeal, Hurst argues that “[t]he districtcourt’s imposition of the statutory maximum sentence of 180 months was substan tively unreasonable.” Aplt. Br. at 30. “‘We review a district court’s sentencing decision for substantive reasonableness under an abuse- of-discretion standard, looki ng at the totality of the circumstances.’” Walker , 74 F.4th at 1201 (quoting United States v. Cookson , 922 F.3d 1079, 1090 (10th Cir. 2019)). “‘A dist rict court abuses its sentencing discretion Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 2930 only if the sentence exceeded the boun ds of permissible choice.’” Id . (quoting United States v. Barnes , 890 F.3d 910, 915 (10th Cir. 2018)). “‘Applying this standard, we give substantial deference to the district court and will only overturn a sentence that is arbitrary, capricious, wh imsical, or manifestly unreasonable.’” Id

. (quoting United States v. Peña , 963 F.3d 1016, 1024 (10th Cir. 2020)). “We apply this deference ‘without regard to whethe r the district court impose[d] a sentence within or outside the advi sory guidelines range.’” Id . (quoting Cookson , 922 F.3d at 1090). “This substantial deference reflects th at the ‘sentencing judge is in a superior position to find facts and judge their import unde r § 3553(a) in the individual case.’” Id . at 1202 (quoting Cookson , 922 F.3d at 1091). All of this said, “we do ‘not just provide a rubber stamp of approval’ and ‘t herefore must determ ine if the district court’s proffered rationale, on aggregate, justifies the magn itude of the sentence.’” Id . (quoting Peña , 963 F.3d at 1024). In this case, the district court of fered the following explanation for the sentence it imposed on Hurst: This Court is required to impose a sentence that is sufficient but not greater than necessary to comp ly with the purposes of sentencing identified at 18, U.S.C. Section 3553(a)(2). In determining a sentence to be im posed in this case, this Court has considered the aforementioned f actors, statements, and submissions of the parties, the presentence in vestigation report, the nature and circumstances of the offe nse, and the history and characteristics of the defendant. And although advisory , the court has considered the guideline range for imprisonment as calculated under the United States Sentencing Guidelines. Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3031 Mr. Hurst, I firmly believe thatas a society we are judged by what we do for the least among us, pa rticularly the young, the elderly, and the vulnerable. And were th is the standard by which you were being judged here today, the punishm ent of which you are deserving for your crime far exceeds even the statut ory maximum, but that is not the standard. And, instead, this Cour t must impose a sentence that is sufficient but not greater than neces sary, and then apply and weigh the various 3553(a) factors that were previously mentioned. In so doing, I note that you are now 36 years old and stand before this Court convicted of sexual abuse in Indian country. At the age of 34, you raped a 13-year-old girl. You preyed on her through text messages, offered her drugs and alcohol, drove her to a remote location. You raped her in your vehicle, and th en you lied about it. While these facts alone warrant a lengthy senten ce, your criminal history provides greater support for this posture. Unfortunately, this is not your first felony convic tion. You have prior convictions consisti ng of drug and alcohol-re lated offenses, theft, and numerous assaults and/or domestic-related charges, many of which you received probation or a minimal te rm of imprisonment. Given the second and third chances of which you ha ve been afforded , this Court is rather perplexed as to why you woul d be so callous and reckless with what should have been opport unities for growth, change, and rehabilitation. You have taken fo r granted the chances of which you have been afforded and repeatedly thumbed your nose at our system so as to lead this Court to conclude that you simply have no respect for law and that prior efforts to deter you from engaging in criminal activity were unsuccessful. But in reviewing the PSR and a ll that I have been provided in preparation for today and having h eard the arguments of counsel and listened to the evidence that was pres ented, I have also concluded that you have had your share of challenges, all of which I have considered, those being: The burden and realities of being a principal caregiver, the lack of employment history, and re sulting economic instability, your history and struggles with drug and alcohol use and abuse, and your lack of education and educa tional opportunities. I ha ve no doubt that these challenges contributed to many of th e poor decisions that you made over the course of your life, which have led you to this moment. While sympathetic to your pli ght and assigning an appropriate weight to those favorable factors, none of those, individually or Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3132 collectively, are so great as to outweigh the harm that you have caused and this Court’s concern for the safety of the community. As I prepared for and reflected on your crime, I have struggled and often ask myself [w]hat is worse, the act that you perpetrated or the resulting and lasting trauma to yourvictim, which will undoubtedly— trauma, I should say, that she wi ll undoubtedly experience because of your perversion and pred atory behavior? And I go a step further and ask whether you will do it ag ain if not deterred. While the answers to those quest ions remain unclear, what is clear, again, is that you raped a 13-year-old girl, who though she may not qualify as a vulnerable victim for purposes of the two-level enchantment [sic], there is no doubt in my mind that yo u exploited those vulnerabilities. You took advantage of this young gi rl, who was often home alone because she was being rais ed by a single father who spent great deal of time working. What I also know, and that I find deeply troubling, is the age difference between you, a 34-year-old man, and your victim, a 13-yearold girl, at the time of this offense. While 18 U.S.C., Section 2243(a) onl y requires that the victim be four years younger than the defendant, in this case it is a 21-year-age difference, which is si mply unconscionable. So for these reasons, this Court will exercise its prerogative and sentence you above the advisory guidelin e so as to ensure the safety of the community, to deter you from fu rther engagement in criminal activity, and to reflect the seriousne ss of your offense, respect for the law, and, indeed, just punishment. To that end, it is the judgment of this Court that the defendant, Garrett Joseph Hurst, is hereby committed to the custody of the bureau of prisons to the statutorily au thorized maximum sentence of 180 months. ROA, Vol. III at 374-379. Hurst argues in his appeal th at “[t]he record here . . . does not meaningfully distinguish [him] from the ‘run-of-the-mill ’ defendant convicted of the same or Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3233 similar offense.” Aplt. Br. at 33. In support of this ar gument, Hurst points to three of our prior cases that he as serts are factually similar to or “more aggravated” than his case: United States v. Tillman , 504 F. App’x 729 (10th Cir. 2012), United States v. Lonjose , 663 F.3d 1292 (10th Cir. 2011), and United States v. Waseta , 647 F.3d 980 (10th Cir. 2011). As we shall proceed to discuss, all three of th ese cases are factually distinguishable from Hurst’s case. In Tillman , the defendant was convicted by a jury “of being an accessory after the fact to voluntary mansla ughter and sexual abuse of a minor” step-cousin. 504 F. Ap p’x at 732. At sentencing, the district court calculated Tillman’s total offense leve l as 24, his criminal history category as one, and his advisory Guidelines sentencing range as fifty-one to sixty-three months. Nevertheless, the district court varied upw ard from the Guidelines range and imposed a sentence of eighty months. Tillman filed a direct appeal arguing, in pertinent part , that the sentence imposed by the district court was substan tively unreasonable. We rejected Tillman’s argument. In doing so, we concluded that “the district cour t provided a reasoned explanation for why it viewed the guidelines sentence as inadequate punishment for . . . Tillman.” Id . at 734. Specifically, the district court noted that “Tillman . . . got” the minor victim “drunk . . . and then took advantage of her.” Id . (internal quotation marks and brackets omitted). The district court also noted that Tillman’s “act was the event that triggered the anger” of the victim’s “22-yea r-old brother,” who responded by choking and killing the victim. Id . (internal quotation marks omitted). Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3334 Lastly, the district court “r eferred to U.S.S.G. § 2A3. 2, comment 6, because Mr. Tillman, in having sex with his 13-year-old step-cousin, was a participant in and perhaps a precipitating fact in the death of a family me mber through his criminal conduct.” Id . (internal quotation marks omitted) . Given these rationales, we concluded that the sentence imposed by th e district court was not arbitrary, capricious, whimsical, or manifestly unreasonable. Id

. In our view, the defendant’s cr iminal conduct and history in Tillman is distinguishable from Hurst’s criminal c onduct and history. For example, the defendant in Tillman was only eighteen years old atthe time of the offense of conviction, and there was only a five-year difference between him and the victim. In contrast, Hurst was thirty-four years old atthe time of the offense of conviction and there was a twenty-one year age difference between him and the victim. Further, the defendant in Tillman had a criminal history category of I. In contrast, Hurst had a criminal history category of VI. And it wa s Hurst’s extensive criminal history that played a significant role in the district court’s decisi on to vary upward from the guidelines sentencing range. Thus, in sum, Tillman is clearly distinguishable from
Hurst’s case. The next case cited by Hurst, United States v. Lonjose , involved a 22-year-old defendant who “engaged in a sexual relations hip for approximately two months with a girl between the ages of 12 and 16.” 663 F. 3d at 1295. “The girl told FBI agents that she had consented to the sexual encoun ters, but that she le t Defendant have sex with her so that they could remain friends.” Id . (internal quotation marks and Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3435 brackets omitted). “Defendant admitted to ha ving sex with the girl four times, but stated that he believed she was at least 17 years old, although sh e had never told him her age.” Id . The defendant was indicted on fourcounts of sexual abuse of a minor in Indian Country, but ultimately pleaded guilty to one count in exchange for the government’s agreement to di smiss the remaining three c ounts. At sentencing, the district court calculated the defendant’s total offense level as 24, his criminal history score as zero, his criminal history categor y as I, and a guideline imprisonment range of 51 to 63 months. The dist rict court sentenced the defenda nt to 51 months in prison and a three-year term of supervised release. Lonjose is distinguishable from Hurst’s case for a number of reasons. First, the eight-year age difference betw een the defendant and victim in Lonjose was substantially less than the twenty-one year age difference between Hurst and his victim. Second, the defendant in Lonjose did not engage in fo rcible sexual contact with the victim against her will, as did Hurs t in this case. Thir d, the defendant in Lonjose had no criminal history at all. Here , in contrast, Hurs t has an extensive criminal history, and, as we have noted, th at history was one of the key factors that prompted the district court to impos e an above-guideline-range sentence. The third and final Tenth Ci rcuit case cited by Hurst, United States v. Waseta , involved a defendant who pleaded guilty to se xual abuse of a minor or ward in Indian Country arising out of sexual misconduct with his minor stepson. 647 F.3d at 981. Although the specific offense of convicti on allegedly occurred during a two-month period in the summer of 1989, the presenten ce investigation report revealed that the Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3536 defendant had sexually abused his stepson on a regular ba sis from the time he was six years old until he was approxima tely seventeen years old. At sentencing, the district court calculated the defendant’s total offense level as 14, hi s criminal history score as zero, his criminal history cat egory as I, and hi s guideline imprisonment range as 15 to 21 months. United States v. Waseta , No. 10-2097, ROA, Vol. II at 12–13, 28 (10th Cir. 2010). The district court, after cons idering the § 3553 factors (which included the defendant’s own history of being sexually abused as a minor), concluded that the nature and characteristics of the offense demanded an upward variance from the guideline range. Id ., Vol. III at 38–52. Ultimately, the district court sentenced the defendant to a term of imprisonment of 46 months (the statut ory maximum sentence was 60 months). Comparing Hurst’s case to Waseta , the relevant offense conduct in Waseta was arguably more egregious than the releva nt offense conduct in Hurst’s case. Specifically, the relevant offense conduct in Waseta , as noted, included continuing sexual abuse of the defendant ’s minor stepson over a peri od of approximately eleven years. That said, because the defendant in Waseta pleaded guilty only to one act of sexual misconduct, that resulted in a lower total offense level than in Hurst’s case. The other reason that the guideline impris onment range, and in turn the actual sentence, was lower in Waseta than in Hurst’s case wa s because the defendant in
Waseta had no criminal history at all, and thus his criminal history category was I. In contrast, Hurst has an extensive and violent criminal history, and his criminal history Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3637 category is VI. As noted, it was this crim inal history that in large part drove the district court to impose a sentence above the guideline imprisonment range. Aside from these three Tent h Circuit cases, Hurst also cites to eleven cases from other circuits, most of which are unpublished. See Aplt. Br. at 33–35. Although Hurst asserts that th e sentences imposed in thes e cases “confirm that [his] sentence is exceptionally and unreasonably long,” he fails to offer key details about these cases. Id . at 35. Specifically, Hurst provi des only a brief parenthetical describing the offense of conviction in each case but otherwise fails to discuss the underlying facts of the crimes or to provide the total offense level or criminal history of any of the defendants in these cases. W ithout that information, there is simply no basis for us to conclude th at Hurst’s sentence is, in co mparison, unreasonably long. Lastly, Hurst argues that “t he facts of [his] case are a far cry from the facts of another” Tenth Circuit “cas e in which the defendant also received a 180-month sentence,” i.e., United States v. Ortner , No. 21-5075, 2023 WL 382932 (10th Cir. Jan. 25, 2023). Aplt. Br. at 36. In 2016, the defendant in Ortner , who was then 53 years old, met S.W., who was then 14 years old. Ortner , 2023 WL 382932 at *1. Over the course of the next two years, the defendant began spending time with S.W. and her family, and the defendant and S.W. participated in tribal powwows and performed traditional dances. In early 2018, the defenda nt traveled from Wyandotte, Oklahoma, to Joplin, Missouri, on a work-rel ated trip and took S.W. with him. The defendant had sex with S.W. for the first time on this trip. A ccording to S.W., she Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3738 and the defendant thereafter ha d “multiple sexual encounters . . . in various locations including [the defendant’s] home and car.” Id . at *2. The defendant in Ortnerwas convicted by a jury, in relevant part, of transportation of a minor with intent to e ngage in criminal sexual activity (Count 1), sexual abuse of a child in Indian country (Count 2), and abusive sexual contact in Indian Country (Count 3). The district cour t calculated a total offense level of 39, a criminal history score of zero, 3 a criminal history cate gory of I, and a guideline imprisonment range of 262 to 32 7 months as to Count 1. United States v. Ortner , No. 21-5075, ROA, Vol. II, PSR at 9–10, 12 ( 10th Cir. 2022). As to Counts 2 and 3, the statutorily authorized maximum senten ces were less than the minimum of the applicable guideline ranges. Thus, the a dvisory guideline range was 180 months as to Count 2 and 24 months as to Count 3. Id . at 12. The district court ultimately sentenced the defendant “to concurrent terms of life as to Count 1; 180 months as to Count 2; [and] 24 months as to Count 3.” Ortner , 2023 WL 382932 at *1. The criminal conduct at issue in Ortnerappears to us to have been more egregious than the criminal conduct comm itted by Hurst in this case. Specifically, the defendant in Ortner , who was nearly forty years olde r than the victim, transported the victim across state lines in order to have sex with her fo r the first time, and thereafter coerced her to have sex on multiple other occasi ons after they returned to

3 Notably, even though the defendant’s criminal history sc ore was zero, the presentence investigation report noted that he had a 2018 Oklahoma state conviction for second-degree rape. United States v. Ortner , No. 21-5075, ROA, Vol. II, PSR at 9 (10th Cir. 2022). Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3839 their home state. But, im portantly, the defendant in Ortner received a significantly more severe sentence than did Hurst. Thus , Hurst is simply wro ng in suggesting that the sentence imposed in Ortnerestablishes that his se ntence is substantively unreasonable. Hurst also argues in his a ppeal that “the record doe s not contain any support for the conclusion that the fact s of [his] case are materially different from the facts of the ‘run-of-the-mill’ case.” Ap lt. Br. at 37. In particular , Hurst asserts that he “has no criminal history of sex offenses,” and he in turn argues that the district court “gave too much weight to [h is] prior offenses, which were nothing like the offense in this case.” Id

. In actuality, however, the facts of Hurs t’s case and his crim inal history are anything but “run-of-the-mill.” To begin with, the age difference between Hurst and his victim, which the district court cited as one of the reasons for imposing an aboveguidelines sentence, was not “run-of-the-mill. ” In comparison, th e defendants in all but one of the other Tenth Circuit cases c ited by Hurst were much closer in age to their victims than was Hurst. The only Tenth Circuit case cited by Hurst that involved a greater age difference was Ortner , and the defendant in that case was sentenced to life in prison. Further, Hurst’s criminal history was far from “run-of-the-mill.” Indeed, Hurst’s criminal history was lengthy, rela tively continuous throughout his adult years, and frequently involved violence perpetrated against female victims. Further, some of Hurst’s criminal offe nses either presented a dange r to the public or exhibited Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 3940 a disregard for law enforcemen t. As the district cour t aptly noted in sentencing Hurst, his criminal history clearly established that he had no respect for the law and that the prior efforts by la w enforcement and the state courts to deter him from engaging in criminal activ ity were unsuccessful. In his final argument, Hurst asserts th at “there was no record support for the court’s speculation that” he “had committed or would commit other offenses if not sentenced to 15 years in prison. ” Aplt. Br. at 37. Hurst ar gues in support that “[t]he court’s reliance on the dash cam and th e women’s underwear for a contrary conclusion was improper (and clearly e rroneous) because [his] dad offered an uncontradicted and credible explana tion for both items of evidence.” Id

. We reject these arguments. The district court, in announcing its sentence, said nothing about Hurst having possibly committe d prior acts of sexual violence. Thus, Hurst’s references to the “dash cam and the women’s un derwear” are irrelevant on that score. The district court did, how ever, express concern about Hurst committing future acts of sexual violence upon release from prison. Specifically, the district court stated it had asked itself “whether yo u will do it again,” i. e., commit a similar act of sexual violence, “if not deterred.” ROA, Vol. III at 378. But, importantly, the district court then immediately stated that“the answers to t hose questions remain unclear,” and it instead focused on the specific facts of Hurst’s offe nse of conviction. Id . Thus, the district court did not base its sentence onany speculation that Hurst would commit future acts of sexual violence. Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 4041 In sum, we conclude that the evidence c ontained in the record on appeal amply supports the district court’ s decision to impose an above- guidelines sentence, and in turn plainly refutes Hurst’s assertion that the sentence imposed by the district court was substantively unreasonable.
D In his fourth and final issue on appeal , Hurst argues that the district court procedurally erred by faili ng to explain why a thirteen -year period of supervised release was appropriate. Because Hurst did notraise this issue below, we review it only for plain error. See United States v. Nunez-Carranza , 83 F.4th 1213, 1218 (10th Cir. 2023) (“We review Nunez-Carranza’ s sentencing challenge for plain error because he did not ask the district cour t, at sentencing, fo r a more detailed explanation as to why the court rejected his request for a downward variance.”). “To obtain relief,” Hurst must, theref ore, “‘establish 1) error 2) that was plain, and 3) that affected his substantial rights.’” Id. at 1218 (quoting United States v. Leib , 57 F.4th 1122, 1128 (10th Cir. 2023)). If Hurst can make th ese showings, “this court then would have discretion to grant relief if the error had a serious e ffect on the fairness, integrity or public reputation of judicial proceedings.” Id . (quoting Leib , 57 F.4th at 1128) (internal quotation ma rks and brackets omitted). It is undisputed that “[a] district court must explai n its reasons for imposing a
sentence.” United States v. Martinez-Barragan , 545 F.3d 894, 902–03 (10th Cir. 2008). That obligation “ste ms from 18 U.S.C. § 3553(c), which requires that ‘[t]he court, at the time of sentencing, shall stat e in open court the r easons for its imposition Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 4142 of the particular sentence.’” United States v. Zanghi , 209 F.3d 1201, 1204–05 (10th Cir. 2000) (quoting 18 U.S. C. § 3553(c) and remanding to provide reasons for imposition of supervised release afte r review of a preserved error). In this case, the district court offered no explanation on the record at the time of sentencing for why it selected a thirteen-year term of s upervised release. To be sure, the district court’s announcement of the thirteen-year term of supervised release was immediately preceded by the district court’s detailed e xplanation for why it selected the 180-month term of imprisonment. But we have held that “[i]t is not appropriate simply to assume that the se ntencing court’s reason for imposing a prison term likewise extends to its decisi on[] regarding superv ised release.” Id . at 1205. Given the plain statutory obligation outlined in § 3553(c), we have no choice but to conclude that the district court plainly er red in failing to announce its reasons for selecting the thirteen-year te rm of supervised release. Hurst must still, however, establish that the district court’s error affected his substantial rights. In this context, that means that Hurst must demonstrate that there is a reasonable probability th at, but for the error, the district court would have imposed a lesser term of supervised release. See United States v. Farley , 36 F.4th 1245, 1253 (10th Cir. 2022). In attempting to make this showing, Hurst concedes that “[u]nder 18 U.S.C. § 3583(k), the distri ct court was required to sentence [him] to a minimum term of 5 years of s upervised release and up to life.” 4 Aplt. Br. at 39.

4 Section 3583(k) states, in relevant part, that “t he authorized term of supervised release for any offense under se ction 1201 involving a minor victim, and Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 4243 Hurst also concedes that U.S.S.G. § 5D1. 2(b)(2) “include[s] a ‘policy statement’ providing that ‘[i]f the instan t offense of conviction is a se x offense, . . . the statutory maximum term of supervised release is recommended.’” Id . (quoting U.S.S.G. § 5D1.2(b)(2), Policy Statement). Neverthe less, Hurst argues that “there is ample reason to think the error was prejudicial” b ecause, “[g]iven the wide range available to the court when selecting a term of superv ised release,” it is “probable to think the court would select a differentterm of supervised releas e if required to explain the basis of its decision.” Id . at 40–41. We are not persuaded. The record in this case is replete w ith statements on the record from the district cour t expressing concern about the nature of the offense of conviction, Hurst’s lengthy a nd violent criminal history, and the possibility of Hurst committing future criminal acts upon release from imprisonment. At the same time, there is literally nothing in th e record that could reasonably lead us to conclude that the district court, if required to offer a sp ecific explanation for th e term of supervised release, would choose a lo wer term. Indeed, given th e concerns expressed by the district court on the record and the po licy statement contained in U.S.S.G. § 5D1.2(b)(2), it is instead reasonable to think that the district court might impose the statutory maximum term of supervised release, i.e., life. We ther efore conclude that

for any offense under section 1591, 1594(c) , 2241, 2242, 2243, 2244, 2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 24 22, 2423, or 2425, is any term of years not less than 5, or lif e.” 18 U.S.C. § 3583(k). Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 4344 Hurst has failed to establish that the district court’s er ror affected his substantial rights. 5
IV The judgment of the dist rict court is AFFIRMED.

5 Because the district court imposed a term of supervised release that was lower than that recommended in U.S.S.G. § 5D1.2(b)(2)’s policy st atement, it is also difficult, if not impossible, to conclude that any error on th e part of the district court in failing to specifically explain the re asons for doing so seri ously affected the fairness, integrity, or public re putation of judicial proceedings. Appellate Case: 22-7041 Document: 010111008100 Date Filed: 03/01/2024 Page: 44