After examining appellant’s brief and the appellate record, this panel has *

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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judgment is not binding precedent, except under the doctrines of law of the case,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, or 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.

F I LED

United States Court of Appeals

Tenth Circuit

April 24, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEPHEN REX ALLEN,

Defendant-Appellant.

No. 06-2110

(D.C. No. CR-04-788 JB)

(New Mexico)

ORDER AND JUDGMENT

*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Stephen Rex Allen pled guilty to violating 18 U.S.C. § 2113’s prohibition

on attempted and completed bank robberies and was sentenced to 151 months

imprisonment and 3 years of supervised release. On appeal, he contends the

district court erred in calculating his sentencing range under the federal guidelines

and that his sentence is unreasonable. We affirm.

 Prior to sentencing, the United States Probation Office developed a
 See U.S.S.G. § 2X1.1 (“(a) Base Offense Level: The base offense level from 1

the guideline for the substantive offense, plus any adjustments from such guideline for

any intended offense conduct that can be established with reasonable certainty. (b)

Specific Offense Characteristics (1) If an attempt, decrease by 3 levels, unless the

defendant completed all the acts the defendant believed necessary for successful

completion of the substantive offense or the circumstances demonstrate that the

defendant was about to complete all such acts but for apprehension or interruption by

some similar event beyond the defendant's control.”)

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presentence report (PSR) for Mr. Allen. He was assigned a base offense level of

20 and a 2 level increase pursuant to U.S.S.G. § 2B3.1(b)(1) because his objective

was the taking of a financial institution’s property, for an initial adjusted offense

level of 22. Because he was a career criminal, he was assigned an adjusted

offense level of 32 pursuant to U.S.S.G. § 4B1.1, and a downward adjustment of 3

for acceptance of responsibility, see U.S.S.G. § 3E1.1, for a total offense level of

29. With a criminal history category of VI, his final offense level led to a

recommended guideline imprisonment range of 151-188 months. 

Prior to sentencing, Mr. Allen filed a sentencing memorandum asserting he

was entitled to a three level reduction in his offense level pursuant to U.S.S.G. §

2X1.1 on the ground that his crime was an attempt rather than a completed

offense. The district court denied Mr. Allen’s request. At the conclusion of the 1

hearing, the court stated it had “taken account of the sentencing goals that are in

[18 U.S.C.] Section 3553(a)” and the guidelines recommendation, and sentenced

Mr. Allen to 151 months imprisonment, the low end of the guidelines range. 

Rec., vol. V at 39.
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Mr. Allen appeals the denial of a reduction under § 2X1.1 and, in the

alternative, argues his 151 month sentence was unreasonably long in light of the

18 U.S.C. § 3553(a) factors. When reviewing the district court’s application of

the guidelines, we review legal findings de novo and factual findings for clear

error. United States v. Martinez, 418 F.3d 1130, 1133 (10th Cir. 2005). Where

the district court errs in applying the guidelines we “must remand . . . unless the

error is harmless.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). 

If the district court's application of the guidelines was correct or any errors

harmless, then we decide whether the sentence was substantively reasonable. 

United States v. Hernandez-Castillo, 449 F.3d 1127, 1129-30 (10th Cir.2006). 

We first address Mr. Allen’s contention that the guidelines were

misapplied. The Probation Office initially calculated an offense level of 22,

assigning 20 levels for bank robbery and a 2 level upward adjustment for his

objective of taking bank property. Because Mr. Allen qualified as a career

offender under § 4B1.1(a), however, his final offense level was set by § 4B1.1(b). 

See U.S.S.G. § 4B1.1(b) (Career criminal offense levels calculated pursuant to §

4B1.1(b) supersede lesser levels that would be “otherwise applicable.”). In Mr.

Allen’s case, he was assigned an offense level of 32 as required by U.S.S.G. §

4B1.1(b), less a 3 level downward adjustment for acceptance of responsibility, for

an adjusted offense level of 29. The district court sentenced him accordingly. 

See Rec., vol. V at 39 (“The offense level is 29 . . . [and t]he guideline
 “Acceptance of Responsibility,” U.S.S.G. § 3E1.1, is the only adjustment that 2

diminishes offense levels set by the table in § 4B1.1(b). See U.S.S.G. § 4B1.1(b) (“If

an adjustment from § 3E1.1 (Acceptance of Responsibility) applies, decrease the

offense level by the number of levels corresponding to that adjustment.”). We have

concluded from this specific authorization of an acceptance of responsibility reduction

in § 4B1.1 that the Sentencing Commission expressly declined to incorporate other PreChapter Four adjustments into the career criminal calculations. See Jeppeson, 333 F.3d

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imprisonment range is 151-188.”). 

Pursuant to § 1B1.1, provisions of the guidelines are to be “applied in” a

specified “order.” U.S.S.G. § 1B1.1. In the first two steps, the court must

determine the applicable offense guideline and the appropriate base offense level,

and apply “specific offense characteristics, cross references, and special

instructions contained in the particular guideline in Chapter Two.” U.S.S.G. §§

1B1.1(a) and (b). After applying any relevant Chapter Three adjustments, §

1B1.1(c), the guidelines require that the court then apply applicable adjustments

in Parts A and B of Chapter Four, § 1B1.1(f). We have previously held the

sequential instructions of § 1B1.1 dictate that any pertinent Chapter Three

adjustments are to be incorporated into the “otherwise applicable” offense level,

and not into the level provided by Part Four’s career offender provision. United

States v. Jeppeson, 333 F.3d 1180, 1183 (10th Cir. 2003). Logically, then,

Jeppeson requires that the Chapter Two specific offense characteristics must also

be incorporated into the court’s initial determination of the “otherwise applicable”

offense level, and not into the latter career offender level determined by Chapter

Four. Because the attempt provision at issue here is found in Chapter Two, it 2
at 1184.

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modified Mr. Allen’s initial offense level but not the determinative Chapter Four

offense level and resulting guidelines range. We therefore need not decide

whether the district court erred in refusing to apply the § 2X1.1 reduction for

attempt, because even if it did the error was harmless.

Mr. Allen also contends the 151 month sentence imposed by the district

court was unreasonably lengthy in light of the 18 U.S.C. § 3553(a) factors. We

are not persuaded. The district court explicitly compared the facts of this case to

those of other career criminals convicted of bank robbery and sentenced by the

court. See Rec., vol. V at 40-41. In light of Mr. Allen’s serious criminal history

and the other 3553(a) factors, the court concluded a sentence at the bottom of the

guidelines range was appropriate. Although Mr. Allen provides specific examples

of lesser sentences for completed bank robberies, he notes that in at least two of

those cases the individual had no prior criminal history. See Aplt. Br. at 25 n.1. 

The guidelines seek parity “among defendants with similar records who have been

found guilty of similar conduct,” 18 U.S.C. 3553(a), and these sentences therefore

have limited relevance for Mr. Allen, who carries the additional burden of his

significant criminal history. The single case he cites involving a career criminal

was expressly considered by the district court during its sentencing of Mr. Allen. 

See Aplt. Br. at 25 n.1; Rec., vol. V at 40. We are not convinced Mr. Allen’s
 Mr. Allen asks us to consider United States v. Williams, 435 F.3d 1350 (11th 3

Cir. 2006), in which the Eleventh Circuit concluded a below guidelines district court

sentence was reasonable in light of allegedly analogous facts. This precedent, however,

provides little value in evaluating the reasonableness of a within guidelines sentence. 

The breadth of reasonable sentences may broadly encompass both guidelines and nonguidelines sentences, and we cannot ascertain whether the court in Williams would have

concluded a within guidelines sentence was unreasonable. Thus, even if we were to

attach great precedential weight to Williams, its holding provides limited guidance in

the exercise of our appellate review of Mr. Allen’s within guidelines sentence.

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sentence was unreasonable.3

Accordingly, we AFFIRM. 

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge