UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DERRICK IVAN JIM, Defendant-Appellant. No. 18-2144 (D.C. No. 1:10-CR-02653-JB-1) (D.N.M.)

ORDER AND JUDGMENT *

Before BACHARACH , SEYMOUR , and McHUGH , Circuit Judges.

The United States District Court for the District of New Mexico sentenced Derrick Ivan Jim to life imprisonment for his c onviction on two counts of aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241( a)(1), and 2246(2)(A). Mr. Jim now appeal s, arguing the life sent ence is substantively unreasonable. 1

* This order and judgment is not binding prece dent, except under the doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 In United States v. Antelope , 430 U.S. 641, 645 (1977), the Court held “that federal legislation with respect to Indian Tribes, alt hough relating to Indians as such, is not based upon impermissible racial cla ssifications.” Mr. Jim believes Antelope was wrongly decided and preserves for Supreme Court review his argument that the racial FILED United States Court of Appeals Tenth Circuit 

### February 25, 2020 Christopher M. Wolpert Clerk of Court2 I. In 2012, a federal jury convicted De rrick Ivan Jim of aggravated sexual abuse occurring in the Nava jo Nation. The district court sentenced him to 360 months’ imprisonment based on a guidelin e range of 360 mont hs to life. The district court recognized th at the victim was seriously injured by th e viciousness of Mr. Jim’s rape, but the c ourt believed that the victim ’s injuries were accounted for in the underlying guideline for aggravated sexual abus e. Mr. Jim appealed his conviction and the government cross ap pealed the senten ce, contending the district court should have applied a two-leve l enhancement pursu ant to U.S.S.G. § 2A3.1(b)(4)(B) for causing the victim serious bodily injury. We affirmed the conviction but reversed the sentence, explaining that it is not double-counting to include a sentence enhancement for both “the egre giousness of [a defendant’s] conduct in committing a sex offense and for the injuries inflicted during that offense because those enhancements addr ess different and di stinct matters.” United States v. Jim , 786 F.3d 802, 816 (10t h Cir. 2015) (empha sis in original). At the resentencing heari ng, the district court recognized that the victim had sustained serious bodily injury within the me aning of the two-level enhancement. Applying the enhancement re sulted in a new offense level of 43. 2

classification created by the Major Crimes Ac t, 18 U.S.C. § 1153, renders the statute unconstitutional. 2 The two-level enhancement for causing the vi ctim serious bodily injury increased Mr. Jim’s offense level from 42 to 44. However, the highest offense level contemplated by the sentencing guidelines is 43.3 Combined with a criminal hi story of II, the new guideline became a life sentence rather than the previous ra nge of 360 months to life. Th e district court declined Mr. Jim’s request for a downw ard departure of four of fense levels, declined a downward variance from the applicable guideline range , and accordingly imposed a within-guidelines senten ce of life imprisonment. Mr. Jim now appeals the district court’s sentence, arguing that his life se ntence is substantively unreasonable. “[S]ubstantive reasonableness review broa dly looks to whether the district court abused its discretion in weighing pe rmissible [18 U.S.C.] § 3553(a) factors in light of the ‘total ity of the circumstances.’” United States v. Sayad , 589 F.3d 1110, 1118 (10th Cir. 2009) (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). Under the applicable abuse of di scretion standard, “a district court’s sentence is substantivel y unreasonable only if it is arbitrar y, capricious, whimsical, or manifestly unreasonable.” Id. at 1116 (internal quotation marks and citation omitted).
II . A. Substantive Reasonable ness of Resentencing Mr. Jim first contends hi s life sentence is subs tantively unreas onable given that the district court pr eviously determined that a 360-month sentence would serve the purposes of sentencing, and that no new facts were presented at resentencing. But this overl ooks the fact that the di strict court incorrectly determined the guideline ra nge when it initially se ntenced Mr. Jim. On4 resentencing, the new guidelin e was a singular recommenda tion of life in prison. “If the sentence imposed is within the properly calculated Guidelines range, we may apply a presumption of reasonableness to the se ntence on our appellate review.” United States v. Regan , 627 F.3d 1348, 1352 (10th Cir. 2010) (citation omitted); see also Rita v. United States , 551 U.S. 338, 347 (2007) (“[A] court of appeals may apply a presump tion of reasonableness to a district court sentence that reflects a proper applic ation of the Sentencing Guid elines.”). The district court’s proper calculation of Mr. Jim’s guideline range is not in dispute here, so we apply a presumption of reasonableness to his within -guidelines sentence. Mr. Jim can rebut this presumption “by demons trating its unreasonabl eness in light of the § 3553(a) factors.” United States v. Martinez-Barragan , 545 F.3d 894, 905 (10th Cir. 2008) (citation omitted). Mr. Jim’s first argument fa ils to consider the increa se by two offense levels at resentencing for the vi ctim’s serious bodily inju ry. Once this court found procedural error in Mr. Jim’ s initial sentencing, the sl ate was wiped clean and the district court was required at resentencing to reconsid er all § 3553(a) factors in light of Mr. Jim’s newly corr ected offense level of 43. See United States v. Smith , 930 F.2d 1450, 1456 (10th Cir. 1991) (remanding fo r resentencing and “direct[ing] the sentencing court to begin anew . . . [as] fully de novo resentencing is entirely appropriate”) (internal quotation marks omitted). Analysis of a proper senten ce must start from the corre ctly calculated guideline5 range. See Gall , 552 U.S. at 49 (“[A] district court should begi n all sentencing proceedings by correctly calculating the appl icable Guidelines ra nge . . . to secure nationwide consistency, the Guidelines should be the st arting point and the initial benchmark.”) (citation om itted); 18 U.S.C. § 3742(g). “The sentencing judge s hould set forth enough to sati sfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita , 551 U.S. at 356 (citation omitted). The district court here did just that , both at Mr. Jim’s resentencing hearing and in the court’s subsequent 34-page Opinion and Order. Given the district co urt’s thorough reconsid eration of all circ umstances relevant to Mr. Jim’s sentence, 3 we cannot conclude that hi s sentence is substantively unreasonable merely be cause it increased from 360 mont hs to life imprisonment when the district co urt resentenced Mr. Jim according to th e newly determined guideline recommendation of life in prison.

3 Mr. Jim also contends that his sentence is substantively unreasonable because (1) the district court inaccurately stated that Mr. Ji m had not taken steps to address his alcohol problem; and (2) the court unfairly weighed M r. Jim’s insistence on going to trial against him at sentencing. The record shows that the district court considered Mr. Jim’s history of alcohol problems at both sentencing heari ngs and determined not to impose an upward or downward variance. Based upon Mr. Jim’ s intoxication at the time of the rape, the court could have reasonably determined that Mr. Jim had not take n adequate steps to address his alcohol problem. In addition, we are not convin ced that the court punished Mr. Jim for choosing to go to trial. Instead the record demonstrates that the court properly considered both Mr. Jim’s decision to lie under oa th and his refusal to accept responsibility for the crime. See United States v. Portillo-Valenzuela , 20 F.3d 393, 395 (10th Cir. 1994) (“[D]enying the reduction fo r acceptance of responsibility is not a penalty for exercising any rights. The reduction is simply a reward for those who take full responsibility.”).6 B. Substantive Reasonableness of Se ntencing Under the Guidelines Next, Mr. Jim contends th e district court abused its discretion in weighing the § 3553(a) factors and overemphasize d the sentencing guidelines in its resentencing. In part icular, Mr. Jim first posits that the distri ct court used the guidelines as a proxy for the need to avoid unwarra nted disparities among defendants convicted of the same crime and that such emphasis on the guidelines is inappropriate given the ra rity of aggravated sexual abuse cases that proceed to trial. He also contends th at life sentences are rese rved for rape cases more heinous than his case. We address each of th ese arguments in turn. i. Use of the Guidelines as a Proxy Give n the Rarity of A ggravated Sexual

Abuse Cases Going to Trial When setting the guideline ranges , the Sentencing Commission “clearly considered” the avoidance of disparities in sentencing. Gall , 552 U.S. at 54. Moreover, one factor that di strict courts must consider when im posing a sentence is “the need to avoid unwarranted se ntence disparities among defendants.” 18 U.S.C. § 3553(a)(6). Mr. Jim asserts that because aggr avated sexual abuse cases rarely go to trial, the gui delines should not serve as a proxy for the unwarranted disparities consideration. But Mr. Jim’s position is undermined by the wellestablished role of the guide lines in sentencing and the district cour t’s detailed consideration at resentenci ng of all relevant factor s, including both upward and downward pressures on Mr. Jim’s sentence. The cour t also considered and7 distinguished the cases Mr. Jim cites in support of a dow nward variance from the guidelines. Section 3553(a) sets forth the relevant factors distri ct courts must consider in imposing a sentence. 4 The district court here care fully analyzed each of these factors both at the resentencing hearing and in its Opinion and Or der. In fact, the district court identified and considered fourteen factors placing downward pressure on Mr. Jim’s sent ence, but concluded that ne ither a downward departure nor a downward variance from the guideli nes was warranted. In light of the district court’s deta iled explanation of its decisi on, we are not persuaded the court used the guidelines merely as a proxy in im posing Mr. Jim’s sentence. ii. Life Sentences in Aggrav ated Sexual Abuse Cases Mr. Jim also argues his sentence is s ubstantively unreasona ble because life sentences are reserved for more heinous rape cases. In support of his position, Mr. Jim cites three cases in which the defendants receiv ed a lesser sentence than he did for aggravat ed sexual abuse: United States v. Martin , 528 F.3d 746 (10th Cir. 2008); United States v. Estep , 138 F. App’x 113 (10th Cir. 2005)

4 Factors to be considered in imposing a sentence include: “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, (c) incapacitati on, and (d) rehabilitati on; (3) the kinds of sentences available; (4) the Sentencing Commission Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarrant ed sentencing disparities; and (7) the need for restitution.” United States v. Cookson , 922 F.3d 1079, 1092 (10th Cir. 2019) (internal quotati on marks and citation omitted); See 18 U.S.C. § 3553(a) (requiring the district court to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set fort h in [§ 3553(a)(2)]”).8 (unpublished); and United States v. Chee , No. 98-2038, 1999 WL 261017 (10th Cir. May 3, 1999). But thes e cases are all distinguish able based on the offense level and criminal history category from which the senten ces were calculated, and on the fact that the defenda nts all received sentences within the applicable guidelines range. See Martin , 528 F.3d at 749, 754; Estep , 138 F. App’x at 117; Chee , 1999 WL 261017 at *6. Moreover, s ubstantive reasonableness of the sentence was not an i ssue on appeal in any of the three cases. Mr. Jim also asserts that life sent ences for aggravated sexual abuse cases and “sentences significantly above 360-months that are likely to result in the defendant dying in pr ison” generally appl y “where victims ar e minors, and often where the sexual abuse invol ved multiple victims or was ongoing for a year or more.” Aplt. Br. at. 33. However, sentencing was an issue on appeal in only one of the six cases Mr. Jim cites in support of this argument, United States v. Mix , 457 F.3d 906, 909 (9th Cir. 2006). 5

5 The defendants in the othe r five cases appealed only their convictions, and two of the five opinions noted th at the sentence the defendant received was within the guideline range for the defe ndant’s offense level and criminal history category. United States v. Yazzen , 187 F. App’x 800, 801 (10t h Cir. 2006) (unpublished) (noting the guideline range fo r an offense level 43 and criminal history category of II—Mr. Jim’s same leve l and category—is mandato ry life imprisonment); United States v. Charley , 189 F.3d 1251, 1259 (10th Cir. 1999) (noting that the district court applied th e guidelines in sentencing the defendant to life imprisonment); United States v. Begay , 550 F. App’x 604, 606 (10th Cir. 2013) (unpublished) (noting the de fendant received a 50-year sentence where victim was a minor and paraplegic); United States v. Chaco , 520 F. App’x 694, 695 (10th Cir. 2013) (unpublis hed) (noting the defenda nt received a 516-month sentence where vict im was a minor); United States v. Yazzie , 743 F.3d 1278, 12869 Mix is also distinguishable . There, the Ninth Circ uit upheld as reasonable an above-guidelines sentence im posed by the district court. Mix , 457 F.3d at 909. The district court in Mix imposed life senten ces as to seven c ounts (five counts of aggravated sexual abuse and two counts of kidnapping) to run concurrently with two consecutive 120-month se ntences for two counts of assault with a dangerous
weapon. Id . at 909–10. In addition, the cour t imposed an upw ard variance from the guideline range based upon “the heinous, brutal, continued nature” of the crime. Id. at 910 (quoting the distri ct court opinion). Affirm ing the life sentence, the Ninth Circuit conc luded that the distri ct court “imposed a sentence outside of the Guidelines based upon consideration of § 3553(a) factors th at the district court believed had not b een adequately taken acco unt of by the Guidelines calculation.” Id. at 911–12. Here, the district cour t did not vary from the guideline calculation by imposing a life sentence . The court carefully c onsidered the sentencing guidelines, § 3553(a) factors, and ci rcumstances putting both upward and downward pressure on Mr. Jim’ s sentence. We therefore c onclude that the district court did not abuse it s discretion in imposi ng a life sentence.

(9th Cir. 2014) (noting th e district court imposed a 420-month sentence where victim was a minor).10 III. Mr. Jim also appeals th e district court’s imposi tion of a special condition of supervision that the cour t had previously specifica lly excluded during its oral pronouncement of the sentence. Notably, at Mr. Ji m’s second senten cing hearing, the district court agreed to remove a special condition of Mr. Jim’s sentence related to his contact wi th children under the age of eighteen. The government concedes it was error to th ereafter impose this conditi on, agreeing that the oral pronouncement controls. See United Stat es v. Villano , 816 F.2d 1448, 1450–51 (10th Cir. 1987) (en ba nc). Accordingly, we remand to the district court to amend the judgment to remove the condition. For the foregoing reas ons, we AFFIRM the se ntence imposed by the district court but REMAND for furthe r proceedings regarding the special conditions of Mr. Jim’s supervised release.

Entered for the Court Stephanie K. Seymour Circuit Judge