UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DAVID EARL CARPENTER, JR., Defendant - Appellant. No. 21-6070 (D.C. No. 5:20-CR -00242-PRW-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ This appeal involves the length of Mr. Da vid Earl Carpenter, Jr.’s sentence. He argues the sentence was substantively unr easonable because it was too long. We disagree and affirm the sentence. 1. The court sentenced Mr. Carp enter to ten years in prison. Mr. Carpenter pled guilty to being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). The district court senten ced him to ten years’ incarceration,

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 16, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 12 which was the statutory maximum term of imprisonment for his offense. At sentencing the district court calcul ated Mr. Carpenter’s advisory guideline in accordance with the presen tence report (PSR). The PSR had calculated his base offense level under U.S.S.G. § 2K2.1(a)(2) to be 24. It then subt racted three levels for acceptance of responsib ility, resulting in a total offense level of 21. Mr. Carpenter’s lengthy and extensive criminal history resulted in a total criminal history score of 20, which placed him in cr iminal history category VI. The resulting advisory guideline imprisonment range was 77 to 96 months. Neither party objected to the calculated guideline range. Neithe r party moved for a departure from that
range. Mr. Carpenter’s attorney argued at sentencing for a sentence at or near the bottom of the guideline range. She acknowledge d his substantial cr iminal history but attributed it to his mental health struggles and the tr aumatic experiences of his childhood. She stated he was “in a stab le place” on his medications and had “very positive, pro-social qualities about him.” R., Vol. 3 at 10. She emphasized the non-violent nature of the § 922(g)(1) o ffense and claimed he had possessed the gun for his own protection. She also noted that this was his first federal prosecution and that he would receive treatment in prison that would give him “something to work for” and “something to look forward to . . . [e]ven at th e bottom end of the guidelines.” Id. at 12. Once Mr. Carpenter was released, she argued, his probation officer could help him reinforce the positiv e, pro-social behavior he could achieve through the treatment he would receive in prison. Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 23 For its part, the government emphasized the need to protect the public, arguing that given his extensive criminal record resulting in many stat e-court convictions, “every month that the Court incarcerates [Mr. Carpenter] will be a month when he would otherwise be co mmitting new crimes.” Id. at 14. In particular, the government noted his violent conduct wh en he had domestically abused his girlfriend. The district court found that Mr. Carp enter’s case was “primarily about incapacitation and protecting the public,” because he had “an unbroken line of criminal conduct beginning from . . . the ag e of 13,” including “assaults and batteries and breaking and entering and acquiring d eadly weapons,” along with “domestic abuse” where he “strangled [h is] pregnant girlfriend until she passed out,” resulting in “probably the worst [criminal] record I’ve ever seen.” Id. at 16-17. Given this history, the district court stated it was “impossible to think about the possession of the gun in this charge as benign.” Id. at 17. Because his pr evious “short terms of [state] incarceration ha[d] done nothing [to improve his behavior] . . . a lengthy term of incarceration [was] necessary.” Id. The district court va ried upwardly 24 months from the top of the guideline range and se ntenced him to 120 months’ incarceration, to be followed by a three-year te rm of supervised release.
2. The sentence is s ubstantively reasonable. Mr. Carpenter argues that de spite his extensive criminal history, his ten-year sentence is substantively unreasonable. We review a challenge to the substantive reasonableness of a sentence fo r an abuse of discretion. See Gall v. United States , Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 34 552 U.S. 38, 51 (2007). In conducting this re view, we consider “t he totality of the circumstances, including the extent of any variance from the Gu idelines range.” Id. To determine if the length of a sent ence is unreasonable, we examine the totality of the circumstances “in light of the 18 U.S.C. § 3553(a) factors.” United States v. Caiba-Antele , 705 F.3d 1162, 1165 (10th Cir. 2012) (internal quotation marks omitted). Those factor s are: (1) the nature and ci rcumstances of the offense and the history and characteristics of the defendant, (2) the need for a sentence to reflect the seriousness of th e crime, deter future crimin al conduct, protect the public, and provide rehabilitation, (3 ) the legally available senten ces, (4) the U.S. Sentencing Guidelines, (5) the Sentencing Commission’s po licy statements, (6) the need to avoid unwarranted disparities among sentences, and (7) the need for restitution. See 18 U.S.C. § 3553(a). We reverse only if the resulting sentence was “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Garcia , 946 F.3d 1191, 1211 (10th Cir. 2020) (internal quotation marks omitted). In our view, Mr. Carpenter’s ten-year se ntence fell within th e district court’s discretion. The district c ourt relied heavily on his exte nsive and violent criminal history and the need for a substantial fe deral sentence both to deter his future criminal conduct and to protect the public. See United States v. Mateo , 471 F.3d 1162, 1164-66, 1170 ( 10th Cir. 2006) (affirming substan tial reasonableness of district court’s upward variance from guideline range of 15 to 21 months to the statutory maximum of 120 months, noting defendant’s “frequent brus hes with the law [that] indicate[d] a commitment to a criminal lifestyle,” the defe ndant’s “sentences for prior Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 45 convictions [that] ha[d] not been effective at deterring him from engaging in criminal behavior[,] and [the fact that] the public require[d] protection from [his] demonstrated penchant for criminality” (internal quotation marks omitted)). Mr. Carpenter argues the guideline range already accounted for his criminal history because the guidelines assigned him a criminal history score of VI. But the district court could reasona bly have considered his unus ually extensive criminal history in reaching its sentencing decision. See United States v. Barnes , 890 F.3d 910, 921 (10th Cir. 2018) (c oncluding that a district c ourt can justify a variance by relying on facts that the guidelines had already accounted for). He also argues the district court failed to explain why a lo wer sentence, such as a within-guideline sentence, would not ha ve achieved the purposes of sentencing. See United States v. Henson , 9 F.4th 1258, 1285 (1 0th Cir. 2021) (no ting “the court’s chosen sentence must be sufficient, but not greater than necessa ry, to comply with the purposes of criminal punishment, as expressed in § 3553(a)(2)” (internal quotation marks omitted)), petition for cert. filed (U.S. Dec. 28, 2021) (No. 21-6736). After describing the § 3553(a) factors a nd noting its review of the sentencing memorandum and other materi als Mr. Carpenter submitted, see R., Vol. 3 at 8-9, the district court specifically found that a lengthy term of incarceration was necessary, given his prior, shorter state incarcerations that had failed to improve his behavior or lead to his rehabilitation. Mr. Carpenter’s prior, adult st ate-court sentences were for terms of between one and ten years. See R., Vol. 2 at 11-17. The district court’s Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 56 stated reasons are sufficien t for our meaningful appella te review and adequately support the extent of the variance. Finally, counsel argues that “Mr. Carpen ter is a unique individual impacted by adverse childhood experiences with an extensive crimin al past including domestic abuse who struggles with me thamphetamine addiction.” Aplt. Opening Br. at 19. But in reaching its sentencing decision the district court considered both Mr. Carpenter’s “tough upbringing” and his “drug problem,” and still found that “a lengthy term of incarceration [was] necess ary,” given his failure to improve his criminal behavior. R., Vol. 3 at 17. See United States v. Lente , 759 F.3d 1149, 1173 (10th Cir. 2014) (“Evidence of childhood trauma, psycholog ical issues, or youthful indiscretion is most powerful when acco mpanied by signs of recovery.”). Giving “due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance,” Gall , 552 U.S. at 51, we discern no abuse of discre tion here. The ten-year sentence was substantively reasonable. We therefore affirm the district court’s judgment.

Entered for the Court

Per Curiam Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 6