UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JEFFREY SCOTT TAYLOR, Defendant - Appellant. Nos. 22-1392 & 22-1442 (D.C. No. 1:22-CR-00162-RM-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ The district court sentenced Jeffre y Scott Taylor to 108 months of incarceration for unlawfully possessing a firearm. See 18 U.S.C. § 922(g)(1). A different district court judge sentenced hi m to an additional 24 months for violating the terms of his supervised release, to be served cons ecutively. Mr. Taylor has appealed from both judgments, but he challenges only the 108-month sentence,

* After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument, and Mr. Taylo r’s motion to schedule oral argument is denied. This order and judgment is not bindi ng precedent, except und er the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 19, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 12 arguing it is procedurally unreasonable. Exercising jurisdic tion under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.
I. BACKGROUND Mr. Taylor has a long hist ory of firearm offenses. In 2003, he pled guilty to possession of a firearm by a prohibited person in violation of § 922(g)(1). He was sentenced to 120 months, to be followed by th ree years of supervised release. When Mr. Taylor completed the prison senten ce on August 30, 2012, he began his supervised release. In 2013, while on supervised release, Mr. Taylor committed and pled guilty to a new § 922(g)(1) offense. 1 In addition, when the Probation Office sought revocation of his supervised release, he admitted to violating his s upervised release conditions. A presentence investigation report (“PSR”) ca lculated his Guidelines range as 77 to 96 months on the § 922(g)(1) offense, and recommended 96 months. District Judge Kane sentenced him to 80 months. Judge Kane then revoked his supervised release and sentenced him to an additional 12 months , to be served cons ecutively, for a total sentence of 92 months. The judge made the revocation senten ce consecutive because Mr. Taylor’s firearm offense and other br eaches of his supervised release terms constituted a “breach of trust with the pr obation service.” ROA No. 22-1442, Vol. 3
at 35.

1 He also pled guilty to being a felon in possession of ammunition. Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 23 In 2020, Mr. Taylor completed his 2013 prison sentence. In 2022, while on supervised release, he committed and pled gu ilty to yet another § 922(g)(1) offense. He also again admitted to violating his s upervised release. Judge Moore presided over the new § 922(g)(1) case . The revocation proceedi ngs remained with Judge
Kane. Judge Moore sentenced Mr. Taylor firs t. The PSR calculated his Guidelines range for the new § 922(g)(1) conviction at 37 to 46 months. 2 But in view of Mr. Taylor’s significant criminal hist ory, the Probation Office recommended an upward variance to 120 months, the statutory maximum. Th e Government concurred. Mr. Taylor argued for 41 months. At the sentencing hearing, the pros ecutor mentioned the additional sentence Mr. Taylor might receive from Judge Kane at the revocation hearing. Judge Moore responded that any additiona l revocation sentence was not his concern and that it would surprise him if Judge Kane gave Mr . Taylor less than the 12-month sentence he had imposed for the 2013 revocation. Th e judge said, “I’m going to do what I’m going to do, and then Judge Kane can do [wha t] . . . he wants to do, given what I’ve done.” ROA No. 22-1392, Vol. 3 at 31. After hearing argument from defense counsel, Judge Moore remarked that Mr. Taylor had been sentenced in 2013 to “92 [months] total, 80 plus 12,” and had

2 The advisory Guideline ra nge for the 2022 offense wa s lower than for the 2013 offense because the PSR calculated both the cr iminal offense and history levels to be lower than those calculated for the 2013 offense. Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 34 completed that sentence, but then “arm[ed] himself” while on supe rvised release. Id. at 40-41. Conceding it would be difficult to justify a within-G uidelines sentence, Mr. Taylor’s counsel argued for a senten ce within 70 to 87 months. Judge Moore responded, “[e]xcept that it’s less than the 92 [months]. Why?” Id. at 47. Counsel said the court’s 92-month figure from 20 13 included the revocation sentence from 2013 and that if the court considered the 12-month revocation sentence in addition to the 80-month § 922(g)(1) sentence, the cour t should “include it on both ends.” Id. That is, if the court used 92 months as a benchmark for the new sentence on the § 922(g)(1) count, it should also account for the anticipa ted sentence Judge Kane was expected to impose in the revocation proceedings. Judge Moore disagreed, stating Mr. Taylor was “not looking at it in these little individual pots,” but instead at how much to tal time he has to serve “for having a gun on supervised release,” which in the 2013 case was “92 months.” Id. at 48. The judge asked, “Why should I gi ve him less than that?” Id. Counsel repeated that it was reasonable to expect that Judge Kane would impose at least 12 months and the court should take that anticip ated sentence into account. Judge Moore responded that he was not concerned with what Judge Ka ne might do, that Mr. Taylor was “a man for whom 92 months of imprisonment does nothing,” and that he saw no reason to impose fewer than 92 months fo r the § 922(g)(1) offense. Id. After allocution from Mr. Taylor, Judge Moore stated he had considered the sentencing factors in 18 U.S.C. § 3553(a). He noted Mr. Ta ylor’s 30-year history of firearms offenses and stated that his record “warrants an at or near statutory Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 45 maximum” sentence. ROA No. 22-1392, Vol. 3 at 58. He then imposed a sentence of 108 months, explaining the variance wa s based on “protection of the public,” “respect for the law,” “deterrence,” “the nature and circumstan ces of the offense,” and “the relevant conduct in this case.” Id. at 62. Five weeks later, Mr. Taylor appeared before Judge Kane for sentencing on the supervised release revocation. He did not contest the probation officer’s recommendation of 24 months, wh ich is the statutory maxi mum, but he argued this revocation sentence should be concurrent with his 108-month sent ence. Judge Kane considered the § 3553(a) factors, includi ng the nature and circumstances of the offense, the need to pr otect the public, and Mr. Taylor’s background and characteristics, and imposed a 24-month te rm, to be served consecutively to the 108-month sentence. Mr. Taylor appeals the 108-month sentence. 3
II. DISCUSSION A defendant may challenge a senten ce on procedural and substantive unreasonableness grounds. See Gall v. United States , 552 U.S. 38, 49 (2007). “The procedural component concerns how the di strict court calculated and explained the sentence, whereas the substant ive component concerns whether the length of the sentence is reasonable in light of the statutor y factors under 18 U.S. C. § 3553(a).” United States v.

3 In his opening brief, Mr. Taylor disc laims any separate challenge to the revocation sentence. See Aplt. Opening Br. at 2. Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 56 Adams , 751 F.3d 1175, 1181 (10th Cir. 2014). Mr. Taylor challenges only the procedural reasonableness of his 108-month senten ce for his violation of § 922(g)(1). 4“[W]e review the procedural reasonableness of [a] sentence for abuse-ofdiscretion, reviewing de novo the district court’s legal conclusions regarding the guidelines and its factual fi ndings for clear error.” United States v. Lawless , 979 F.3d 849, 853 (10th Cir. 2020); see Gall , 552 U.S. at 51. “A district court abuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Huckins , 529 F.3d 1312, 1317 (10th Cir. 2008) (quotations omitted). Mr. Taylor’s procedural challenge stems from the way Judge Moore considered his 2013 sentence. Judge M oore concluded that imposing a sentence greater than the total prison time imposed in the 2013 case was appropriate because the 2013 sentence had not deterred Mr. Tayl or. Mr. Taylor contends Judge Moore improperly relied on a 92-month “arbitr ary sentencing baseline” because the aggregate 2013 sentence incl uded a 12-month revocation se ntence. Aplt. Opening
Br. at 14.

4 The Government contends that Mr. Ta ylor presents a su bstantive and not a procedural challenge to his sentence. Mr. Taylor disavows any substantive reasonableness argument, so even if the Government’s characterization is correct, Mr. Taylor has waived a substantive challe nge. We assume without deciding that Mr. Taylor has made a proce dural reasonableness argument a nd address it accordingly. Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 67 No Waiver of Procedural Reasonableness Challenge As a preliminary matter, we reject the Government’s argument that Mr. Taylor waived appellate review of his argument by failing to present it in district court and failing to argue for plain error review here. A defendant “must object [in district court] to any pro cedural flaws or receive, on appeal, only plain error review.” United States v. Jackson , 82 F.4th at 943, 949 (10th Cir. 2023). The record shows Mr. Taylor sufficiently objected in district court to preserve this issue. Although Mr. Taylor did not argue in district court for the 96-month sentence he now contends would be reasonable, he did argue the sentencing court should either have used the 80-month sentence he receive d for his 2013 § 922(g)(1) conviction as a baseline or granted him credit for the pris on time Judge Kane was expected to impose on the 2022 revocation. 5 We therefore review this pr eserved issue for an abuse of discretion.

5 See ROA No. 22-1392, Vol. 3 at33 (arguing Mr. Taylor’s prior sentence was for 80 months, not 92, and “we can all safely assume Judg e Kane is going to impose some prison time in this case”); id . at 48 (“What I’m saying is if you’re going to consider [the cumulative term of incarceration] for the goose, you should also consider it for the gander. The goose being the 2013 case, and the gander being now. We know he’s going to get more prison [time] from Judge Kane, and I’m not asking this Co urt to predict what that would be [but] I think it would be reason able to predict it’s going to be at least 12 months . . . if the Court feels like it needs to give him mo re time in order to accomplish the trick . . . then consider th at he’s almost inevitably getti ng at least another year on top of whatever the Court is giving.”). Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 78 No Abuse of Discretion. “A sentence cannot . . . be considered reasonable if the manner in which it was determined was unreasonable.” United States v. Conlan , 500 F.3d 1167, 1169 (10th Cir. 2007) (quotations omitted). Mr. Taylor conte nds Judge Moore’s method of determining his senten ce was unreasonable. Mr. Taylor first assert s that because Judge Moo re sentenced him only for a § 922(g) conviction, the judge should have considered only the 2013 § 922(g) sentence of 80 months as a baseline. But he cites no authority limiting the judge’s discretion in this way. Judge Moore wa s concerned that the aggregate 92-month sentence imposed in 2013 had proved ineffect ual. He concluded that a greater sentence was required to accomplish th e court’s sentenci ng goals, including protecting the public and deterrence—a point Mr. Taylor’s counsel conceded was “a reasonable position to take.” R OA No. 22-1392, Vol. 3 at 49. Although 12 months of the 2013 92-m onth sentence had been imposed for a supervised release violation rather than a § 922(g) conv iction, the two parts were related. The “principal” violation that led to the revocation of Mr. Taylor’s supervised release was the same unlawful possession of a firearm underlying the § 922(g) violation. ROA No . 22-1442, Vol. 3 at 33. Ju dge Kane’s statement in 2013 that he was making the revocation senten ce consecutive because of a “breach of trust,” id. at 35, does not change this fact. 6 Thus, in assessing whether his

6 Mr. Taylor argues that the Guidelines ’ policy statements treat sentences for criminal conduct and violation of supervised release separatel y based on distinct factors, Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 89 incarceration for a firearms offense ha d deterred Mr. Taylor from committing new firearms offenses, Judge M oore reasonably considered the aggregate prison term resulting from the prior firear ms offense to conclude that “the 92 months . . . rolled off his back like water off a duck,” ROA No. 22-1392, Vol. 3 at 49. Mr. Taylor has not shown an abuse of discretion. Alternatively, Mr. Taylor argues that having used the aggregate 2013 sentence as a benchmark, the district court should also have cons idered the effect of the anticipated revocation sentence from J udge Kane on Mr. Tayl or’s new aggregate sentence. He does not contend that J udge Moore had to reduce his sentence by exactly 12 months or to speculate about the exact revocation sentence he would receive. Instead, he ar gues that Judge Moore erred by disregarding the future revocation sentence entirely. See Reply Br. at 17. The record shows that Judge Moor e knew Judge Kane would impose an additional sentence for the supe rvised release violation but chose not to consider that fact in determining the length of Mr. Tayl or’s § 922(g) sentence. Mr. Taylor has failed to convince us that choice was “arbitrary, capricious , whimsical, or manifestly unreasonable.” Huckins , 529 F.3d at 1317.

with the primary goal of the supervised-release sentence being to sanction the defendant’s breach of trust. See Aplt. Opening Br. at 16. But it doe s not follow that in fashioning a reasonable sentence, a court sentencing a defe ndant for a later offe nse may not consider whether an aggregate prior sentence had any de terrent effect on the defendant’s conduct. Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 910 In response to Mr. Taylor’s argument that he should have considered Judge Kane’s prospective revocati on sentence, Judge Moore noted his “obligation . . . to apply [the 18 U.S.C. §] 3553 factors” in sentencing Mr. Taylor. ROA No. 22-1392, Vol. 3 at 49. Section 3553 requires a court to “consider . . . the need for the sentence imposed ” to meet the statutory purposes, incl uding affording adequate deterrence and protecting the public from the defendant’s further crimes. 18 U.S.C. § 3553(a)(2) (emphasis added). Judge Moore consider ed these objectives by focusing on the § 922(g)(1) conviction and such factors as Mr. Taylor’s criminal history, without factoring in a sentence he might receive la ter for violating supervised release. Judge Moore could have considered the sentence Judge Kane might impose on the revocation count. See Dean v. United States , 581 U.S. 62, 67 (2017) (recognizing that § 3553 “permit[s] a court imposing a sentence on one count of conviction to consider sentences [to be] imposed on othe r counts”). But Mr. Taylor has cited no authority suggesting that Judge Moore was required to consider the potential revocation sentence, nor has he shown it was an abuse of discreti on not to do so. In sum, Mr. Taylor’s argum ents fails to establish “tha t the [district] court made a clear error of judgment or exceeded th e bounds of permissible choice in the circumstances.” United States v. Hald , 8 F.4th 932, 949 (10th Cir. 2021) (quotations omitted). We therefore reject his pr ocedural reasonableness challenge. Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 1011 III. CONCLUSION We affirm the challenged judgment and sentence.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge Appellate Case: 22-1392 Document: 010110986242 Date Filed: 01/19/2024 Page: 11