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.) 

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ORDER AND JUDGMENT*

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Before BACHARACH, BALDOCK, and EID, Circuit Judges. 

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This appeal involves the length of Mr. David Earl Carpenter, Jr.’s sentence. 

He argues the sentence was substantively unreasonable because it was too long. We 

disagree and affirm the sentence. 

1. The court sentenced Mr. Carpenter 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 sentenced him to ten years’ incarceration, 

* After examining the briefs and appellate record, this panel 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 This order and judgment is not binding precedent, 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 16, 2022

Christopher M. Wolpert 

Clerk of Court

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which was the statutory maximum term of imprisonment for his offense. 

At sentencing the district court calculated Mr. Carpenter’s advisory guideline 

in accordance with the presentence report (PSR). The PSR had calculated his base 

offense level under U.S.S.G. § 2K2.1(a)(2) to be 24. It then subtracted three levels 

for acceptance of responsibility, 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 criminal history category VI. The resulting 

advisory guideline imprisonment range was 77 to 96 months. Neither party objected 

to the calculated guideline range. Neither 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 acknowledged his substantial criminal history but 

attributed it to his mental health struggles and the traumatic experiences of his 

childhood. She stated he was “in a stable 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) offense 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 the bottom end of the 

guidelines.” Id. at 12. Once Mr. Carpenter was released, she argued, his probation 

officer could help him reinforce the positive, pro-social behavior he could achieve 

through the treatment he would receive in prison. 

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For its part, the government emphasized the need to protect the public, arguing 

that given his extensive criminal record resulting in many state-court convictions, 

“every month that the Court incarcerates [Mr. Carpenter] will be a month when he 

would otherwise be committing new crimes.” Id. at 14. In particular, the 

government noted his violent conduct when he had domestically abused his 

girlfriend. 

The district court found that Mr. Carpenter’s case was “primarily about 

incapacitation and protecting the public,” because he had “an unbroken line of 

criminal conduct beginning from . . . the age of 13,” including “assaults and batteries 

and breaking and entering and acquiring deadly weapons,” along with “domestic 

abuse” where he “strangled [his] 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 previous “short terms of 

[state] incarceration ha[d] done nothing [to improve his behavior] . . . a lengthy term 

of incarceration [was] necessary.” Id. The district court varied upwardly 24 months 

from the top of the guideline range and sentenced him to 120 months’ incarceration, 

to be followed by a three-year term of supervised release. 

2. The sentence is substantively reasonable. 

Mr. Carpenter argues that despite his extensive criminal history, his ten-year 

sentence is substantively unreasonable. We review a challenge to the substantive 

reasonableness of a sentence for an abuse of discretion. See Gall v. United States, 

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552 U.S. 38, 51 (2007). In conducting this review, we consider “the totality of the 

circumstances, including the extent of any variance from the Guidelines range.” Id. 

To determine if the length of a sentence 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 factors are: (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 seriousness of the crime, deter future criminal conduct, protect the public, 

and provide rehabilitation, (3) the legally available sentences, (4) the U.S. Sentencing 

Guidelines, (5) the Sentencing Commission’s policy 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 sentence fell within the district court’s 

discretion. The district court relied heavily on his extensive and violent criminal 

history and the need for a substantial federal 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 substantial 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 brushes with the law [that] 

indicate[d] a commitment to a criminal lifestyle,” the defendant’s “sentences for prior 

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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 reasonably have considered his unusually extensive criminal 

history in reaching its sentencing decision. See United States v. Barnes, 890 F.3d 

910, 921 (10th Cir. 2018) (concluding that a district court 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 lower sentence, such 

as a within-guideline sentence, would not have achieved the purposes of sentencing. 

See United States v. Henson, 9 F.4th 1258, 1285 (10th Cir. 2021) (noting “the court’s 

chosen sentence must be sufficient, but not greater than necessary, 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 and noting its review of the sentencing 

memorandum and other materials 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 state-court sentences were for 

terms of between one and ten years. See R., Vol. 2 at 11-17. The district court’s 

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stated reasons are sufficient for our meaningful appellate review and adequately 

support the extent of the variance. 

Finally, counsel argues that “Mr. Carpenter is a unique individual impacted by 

adverse childhood experiences with an extensive criminal past including domestic 

abuse who struggles with methamphetamine 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] necessary,” 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, psychological issues, or youthful 

indiscretion is most powerful when accompanied 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 discretion here. The ten-year sentence was substantively 

reasonable. We therefore affirm the district court’s judgment. 

Entered for the Court 

Per Curiam 

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