UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. No. 12-3289 JORDAN SMITH, Defendant - Appellant. (D.C. No. 6:11-CR-10187-MLB-2) (D. Kan.)

___________________ _________________ ORDER AND JUDGMENT *

___________________ _________________ Before HARTZ , BALDOCK , and EBEL , Circuit Judges. **

___________________ _________________ Defendant Jordan Smith plead ed guilty to two counts of wire fraud in violation of 18 U.S.C. § 1343. Applying the 2011 Guid elines Manual, the presentence report (PSR) assigned Defendant a total offense level of 16 and a criminal history category of VI, yielding a guideline sentencing range of 46–57 months. See U.S.S.G. § 5A. At sentencing, the district court varied upward and sentenced Defendant to a term of 180 months’ imprisonment on each § 1343 count. The court imposed these sentences to run

* This order and judgment is not binding precedent, except u nder the doctrines of law of the case, res judicata, and collateral estoppel.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

** After examining appellant’s brief and the a ppellate 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 ordered submitted wit hout oral argument. FILED United States Court of Appeals Tenth Circuit 

### October 24, 2013 Elisabeth A. Shumaker Clerk of Court-2- concurrently with each other and consecutively to a Kansas state sentence Defendant is serving for burglaries and thefts underlyi ng the wire fraud offe nses. On appeal, Defendant challenges his sentence as both pr ocedurally and substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 12 91 and 18 U.S.C. § 3742, we reverse and remand for resentencing. I. Defendant acknowledged in his plea agreem ent that, as part of his scheme to defraud, he burglarized residenc es and businesses and stole pe rsonal property. He then listed and sold the proper ty on Craigslist or ha d others do so for hi m. Defendant admitted 36 victims of his scheme incurred a total loss of $115,964.78. Although Defendant was only 21 years old at the time he committed the instant offenses, he had already amassed an extraordinary criminal history. The PS R listed 11 convictions for misdemeanor theft (two of which Defendant committed while a mi nor), 5 for felony theft, 5 for burglary, 15 for parking or traffic violations, 2 for id entity theft, and 2 for domestic battery. Defendant was already serving a nine-year stat e sentence for the bu rglaries and thefts underlying his wire fraud scheme when the PSR was prepared, as the state court had revoked his original 108-month suspended st ate sentence for these crimes. Oddly, although the PSR considered these crimes re levant conduct and used them to increase Defendant’s offense level under the Guidelin es, nowhere does the PSR mention U.S.S.G. § 5G1.3(b), which requires that a guideline sentence run concurrent to an undischarged sentence for relevant conduct used to incr ease a defendant’s offense level.-3- Prior to sentencing, the district court f iled a Federal Rule of Criminal Procedure 32(h) letter. The court stated it was “considering a variance from the guideline sentence of up to and including the maximum 20 year s imprisonment on each of the counts of conviction to run consecutively” to each ot her and “consecutively to any state sentence the defendant is serving.” The court jus tified the possible variance on a number of factors. These included Defendant’s hist ory and characteristics, which indicated a dedication to the criminal lifestyle, the fact the crimes underlyi ng the wire fraud were burglaries of dwellings and thus crimes of violence, and the need to protect the public from Defendant. At sentencing, the district court adop ted the PSR’s calculations, but varied upward. Both in his sentencing memorandumand at sentencing, Defendant argued that, under U.S.S.G. § 5G1.3(b), a within-guideline sentence must run concurrently with his undischarged state sentence. The district court never acknowle dged § 5G1.3(b), but rejected Defendant’s request for a concurrent sentence on four grounds. First, the court felt it was “not required to ignore [D]efendant’s conduct which is part and parcel of his federal crimes.” Second the court felt no do uble punishment was involved because it was sentencing Defendant for federa l crimes and not state crimes. Third, the court did not trust Defendant would have to serve his full st ate sentence. Fourth, the court stated “the bottom line” was concurrent federal and stat e sentences would not be sufficient in Defendant’s case. Based on these considerations, the dist rict court sentenced Defendant to 180 months’ imprisonment on each wi re fraud count, to run concurre ntly with each other and-4- consecutively to his state sentence. In e xplaining the sentence the court explicitly considered a number of the se ntencing factors under 18 U.S. C. § 3553(a). In analyzing unwarranted sentence disparity under § 35 53(a)(6), the court noted only that it had sentenced a codefendant to less time but “many factors differentiate[d] him and his conduct from this Defendant.” After imposing the sentence, the court asked if Defendant had any objections. Defendan t first stated he had no pr ocedural objections, but then objected to the length of his sentence. De fendant again argued applying his federal sentence consecutively to his un discharged state sentence was inconsistent with U.S.S.G. § 5G1.3(b) and punished him twice for the same crime. Furthe r, Defendant noted the combination of the upward variance and the consecutive nature of the sentence resulted in an effective sentence five to six times lo nger than the Gu idelines recommended. At no point in responding to Defendant’s objecti ons did the court acknowledge § 5G1.3(b). Rather, the court seemed perp lexed by Defendant’s § 5G1.3(b) objection, asking: “You think that wire fraud should be cons idered part of the state crime?” II. Defendant argues the district court (1) committed procedural error by failing to consider nationwide sentencing dispar ities under § 3553(a)(6 ), and (2) committed substantive error by, among othe r things, sentencing him inc onsistently with U.S.S.G. § 5G1.3(b) and United States v. Kieffer, 681 F. 3d 1143 (10th Cir. 2012). Our review of Defendant’s sentence proceeds in two steps. “The correct Guidelines calculation is the natural starting point from wh ich the sentencing court exercises its discretion under § 3553(a).” Kieffer, 681 F.3d at 1164 (internal quotations om itted). As such, we “‘must-5- first ensure that the district court committed no significant procedural error’ in calculating the advisory guideline range. That is, we must determine whether the method by which the court calculated that range is ‘procedur ally sound.’” Id. at 1165 (quoting United States v. Gall, 552 U.S. 38, 51 (2007)). Although the Guidelin es are now advisory, improperly calculating the guidelines range is an example of “likely ‘significant procedural error,’” as is failing to properly consider the 18 U.S.C. § 3553(a) factors. Id.

“ Only if the district court follows sound proced ure may we then consider whether the resulting sentence is reasonable in substance.” United States v. Cerno, 529 F.3d 926, 937 (10th Cir. 2008) (emphasis added). A. “Our preliminary task is to identify [D efendant’s] procedural challenges.” United States v. Lente, 647 F.3d 1021 , 1031 (10th Cir. 2011). Defe ndant properly characterized his sentencing-disparity argument as procedur al. Defendant, however, mischaracterized his § 5G1.3(b) argument, both at sentencing and now on appeal, as substantive. In calculating the advisory guidel ine sentencing range, “courts must correctly determine whether the Guidelines recommend concurrent sentences,” and “[f]ailure to do so results in procedural error .” United States v. Nania, 724 F.3d 824, 830 (7th Cir. 2013) (citing Kieffer, 681 F.3d at 1167–68) (emphasis added). The distri ct court’s failu re to account for U.S.S.G. § 5G1.3 in calculating Defendant’s within-guideline sentencing range is thus undoubtedly procedural, and we now address it as such. Although Defendant mischaracterized his § 5G1.3(b) argument as substantive, Defendant raised the § 5G1.3(b) issue bot h in his sentencing memorandum and at-6- sentencing. Further, the record reflects the district court un derstood Defendant’s argument was premised on the notion that impos ing his federal sentence consecutively to his state sentence meant he was being punish ed twice for the same conduct. Thus, Defendant effectively preserved this procedural challenge for appeal. United States v. Reyes Pena, 216 F.3d 1204, 1209 (10th Cir. 2 000). When a party preserves its challenge of a court’s sentencing procedure, “our standa rd of review is . . . abuse of discretion, under which we review de n ovo the district court’s lega l conclusions regarding the guidelines . . . .” United States v. Gan tt, 679 F.3d 1240, 1 246 (10th Cir. 2012). “[I]n general, a district court has broa d discretion to sentence a defendant to a consecutive or concurrent sentence.” United States v. Contreras, 210 F.3d 1151, 1152 (10th Cir. 2000). U.S.S.G. § 5G1.3(b), howe ver, limits this discretion. It requires a guideline sentence “run concurrently to the remainder of [an] undischarged term of imprisonment” where the undischarged term “resulted from another offense that is relevant conduct to the instant offense of co nviction . . . and that was the basis for an increase in the offense level for the instant offense.” U.S.S.G. § 5G1.3(b). Relevant conduct includes all acts committed by the de fendant for which he is to be held accountable in determining the applicable guideline range. U.S.S.G. § 1B1. 3(a) & cmt. 1. Although the Guidelines are now “effectiv ely advisory,” United States v. Booker, 543 U.S. 220, 245 (2005), the district court is nevertheless “requi red to account for [§ 5G1.3(b) where it applies] and, absent a variance based on the § 3553(a) factors, impose a concurrent term.” Kieffer, 681 F.3d at 1161.-7- Here, the PSR applied an 8-le vel increase to Defendant’s base offense level, as “the loss involved wa s more than $70,000, but less th an $120,001,” and a 2-level increase, “as the offense of conviction, including relevant conduct , involved 10 or more victims, but less than 50.” (emphasis adde d). These enhancemen ts resulted from the harm caused by the scheme underlying the instant wire fraud offenses, including the burglaries and thefts for whic h Defendant is serving his un discharged state sentence. Defendant’s undischarged state sentence ther efore resulted from relevant conduct to the instant wire fraud offenses and this relevant conduct was the basis for an increase in his resulting offense level under the Guidelines . See Kieffer, 681 F.3d at 1161 (holding district court erred in not considering as relevant conduc t various actions which occurred in different jurisdictions but were all part of a common and ongo ing wire and mail fraud scheme). The PSR stated only that Defendant’s guideline imprisonment range was 46–57 months. The PSR nowhere mentions that , under U.S.S.G. § 5G1.3(b), Defendant’s recommended within-guideline sentence must r un concurrently to the undischarged state sentence he was already serving for relevant conduct. Further, at sentencing, the court noted this relevant conduct had raised Defendant’s guide line range, but nowhere did it acknowledge that Defendant’s undischarged sentence for this same relevant conduct implicated § 5G1.3(b). In fact, in rejecting Defendant’s argument for a concurrent sentence the court stated, both at sentencing a nd then in its written sentencing decision, that it was “not required to ignore Defenda nt’s criminal conduct which was part and parcel of his federal crimes,” and that, si nce Defendant was not “sentenced for federal-8- burglary . . . . [n]o double punishment [w as] involved.” Defendant also objected at sentencing to running his federal sentence consecutively to hi s state sentence as inconsistent with § 5G1.3, but the court fa iled to understand this objection. Instead, it interposed the following question: “You think that wire fraud should be considered part of the state crime?” Th e bottom line is this: nothing in the record gives any indication the court realized that, under U.S.S.G. § 5G1. 3(b), Defendant’s within-guideline sentence must run concurrent to his undischarged stat e sentence for relevant conduct. Rather, the record indicates the court believed § 5G1.3(b) inapplicable because the instant offenses were federal crimes and the relevant conduct were state crimes. Therefore, the district court committed procedural error in calcula ting Defendant’s adviso ry guideline range. The question then becomes whether the di strict court’s error—failing to apply U.S.S.G. § 5G1.3(b) in calculating Defendant’s advisory guideline range—is harmless. “Unless the district court indicated at senten cing that the sentence imposed would be the same under multiple sentencing approaches, one of which was the correct approach , we are compelled to remand for resentencing wh en we find that an improper [guideline construction] was applied.” Kieffer, 681 F.3d at 1169 (emphasis added) (internal quotations omitted). “Absent such an indi cation in the record, we have no way of knowing whether the district court would have imposed the same sentence under a proper application of the Guidelines.” Id. “[T]his is not to say procedural error in calculating an advisory guideline sentencing range can ne ver be harmless. But where the beginning point for a sentencing court’s anal ysis of the § 3553(a) factors is measurably wrong, the-9- ending point usually will result from an incorrect applicati on of the Guidelines.” Id. at 1170 (emphasis in original). Although the court varied upward and indicated it would gi ve a consecutive sentence no matter what (“the bottom line . . . is that concurrent federal and state sentences will not be sufficient under all th e circumstances”), at no point was this variance based on a proper understa nding of the Guidelines and in particular § 5G1.3(b). “To say that the district court would have im posed the same [consecutive] sentence given a new legal landscape places us in the zone of speculation and co njecture—we simply do not know what the district c ourt would have done.” Id. (i nternal quotations omitted). Had the court recognized it was varying from both the term and the concurrent nature of the sentence recommended by the Guidelines—a nd thus that it was varying upward, not by 123 months, but by more than 220 mont hs—the court may have reconsidered the sentence it imposed. The district court committed procedural e rror by failing to pr operly account for U.S.S.G. § 5G1.3(b) when se ntencing Defendant and the erro r was not harmless. We do note, however, that Defendant’s state sentence was the resu lt of a combination of state convictions. It is unclear whether certain of these state convictions—for example, his convictions for identity theft and “making false information” —were indeed part of the relevant conduct used to increase Defendant’ s offense level. On remand, the district court must sort out whether all, or if not a ll then how much, of Defendant’s state sentence was the result of relevant conduct used to calculate his federal offense level. Alternatively, the district court may dete rmine Defendant’s state sentence fits under-10- § 5G1.3’s application note 3(D), which gives the sentencing court, in a “complex” case where the defendant is subject to multiple prison sentence s, discretion to determine whether the federal sentence should run co nsecutively or concurrently to the undischarged state sentences. B. Defendant also argues the district court committed procedural error by “failing to properly consider potential se ntencing disparities of other simi larly situated defendants in other districts in other courts.” He argues th at § 3553(a)(6) explicitly calls for analysis of “disparities among defendants with similar reco rds who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), and that such disparity should be analyzed for “nationwide consistency,” see Ga ll, 552 U.S. at 49. Defendant argues the district court, in effect, did not consider § 3553(a)(6) be cause it considered on ly disparity between himself and a codefendant with a dissimilar record who wa s found guilty of dissimilar conduct. Because Defendant did not object to th is at sentencing, we review only for plain

error. 1 Gantt, 679 F.3d at 1246. Plain error requires that Defe ndant show: (1) error; that

1 The Government argues Defendant invited e rror by agreeing at se ntencing that this factor weighed “neutral” given his codefe ndant’s sentence. Thus, it argues, this challenge should not be reviewed at all un der United States v. De Berry, 430 F.3d 1294, 1302 (10th Cir. 2005). “[T]he invited-error doctrine precludes a party from arguing that the district court erred in adopting a propositio n that the party had urged the district court to adopt.” Id. Although Defenda nt argued before the district court that sentence disparity weighed “neutral” under § 35 53(a) because he was not si milarly situated to his codefendant, the court first initiated any such error in its 32(h) letter, which focused on sentencing disparity only as between Defendant and his codefendant, rather than nationwide. Defendant thus di d not invite any such error bu t, rather, failed to recognize and object to it at sentencing. Accordingl y we review this claim for plain error.-11- is (2) obvious under current well-settled law; (3) affected the Defendant’s substantial rights; and (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id. The Government contends th at, under Gantt, the court committed no error in the first place because “the district court ne cessarily considered unwarranted sentence disparities among defendants nationwide becaus e it correctly calculated and carefully reviewed the guidelines range.” The Government’s argument is flawed. We stated in Gantt that “one can say as a general rule th at when a court considers what the guidelines sentence (or sentencing range) is, it necessar ily considers whether there is a disparity between the defendant’s sentence and the sentences imposed on others for the same offense.” Gantt, 679 F.3d at 1248–49. Th at rule, however, does not apply here, as the court failed to correctly calculate, much less consider, the proper guideline range because it failed to acknowledge that, under U.S.S.G. § 5G1.3(b), a within-guideline sentence in this case must run concurrent to Defendant’s undischarged state sentence. Because Gantt does not apply we must decide for ourselv es whether the court erred in analyzing sentencing disparity only as betwee n Defendant and his codefendant. We have said “[a] district court may consider sentencing disparities between codefendants.” United States v. Zapata, 546 F.3d 1179, 1194 (10th Cir. 2008). “However, the purpose of the Guidelines is to elim inate unwarranted disparities in sentencing nationwide, not to eliminate disparity be tween co-defendants.” United States v. Gallegos, 129 F.3d 1140, 1143 ( 10th Cir. 1997); accord Zapata , 546 F.3d at 1194. In Gallegos, we held the district court erred wh en it reduced the defendant’s sentence based-12- on a disparity between the defendant’s sent ence and the sentence of a codefendant who pleaded guilty to a lesser char ge. Id. at 1144. Further, “our cases establish that sentencing disparity between co-d efendants is an impermissible departure factor when the defendants being compared either (1) pled to or were convicted of different offenses or (2) played significantly different roles in the commission of the same offense.” United States v. Contreras, 180 F.3d 1204, 1210 (10th Cir. 1999). Although these cases were concerned with pre-Booker departures, we see no reason why the rule should not apply with equal force in the contex t of a post-Booker variance. Here, Defendant pleaded guilty to tw o counts of wire fraud whereas his codefendant pleaded guilty to one. Further, Defendant played a much more significant role in the wire fraud scheme and underlying burglaries and thefts. Although the court was permitted to consider the sentencing di sparity between Defenda nt and his dissimilar codefendant, it erred in relying on that par ticular disparity alone without considering sentencing disparities nationwid e. Although Defendant’s se ntencing disparity argument is before us on plain-error re view, we need not analyze the ot her elements of plain error. Given our finding that the court committed reversible error in failing to account for U.S.S.G. § 5G1.3(b) in calcu lating Defendant’s advisory gu ideline sentencing range, on remand the district court will have the oppo rtunity to correctly analyze Defendant’s sentence in the context of na tionwide sentencing disparity . See United States v. Mitcheltree, 940 F.2d 1329, 133 4 (10th Cir. 1991) (holding we need not reach the issue of whether an error constitutes plain e rror where we reverse on other grounds).-13- We therefore REVERSE and RE MAND with instructions that the district court vacate Defendant’s sentence and resentence him in accord w ith this Order and Judgment. 2 Entered for the Court,

Bobby R. Baldock United States Circuit Judge

2 Having conclude d the district court committed revers ible procedural error, we do not address whether Defendant’s federal sentence was substantively reasonable. Cerno, 529 F.3d at 937. When the district court re cognizes running Defendant’s federal sentence consecutively to his undischarged state se ntence amounted to an effective upward variance, not of 123 months, but of more than 220 months , and has the opportunity to analyze this variance in the context of nationwide sentenci ng disparities, the court may indeed reconsider the length a nd nature of Defendant’s senten ce. See United States v. Fitch, 659 F.3d 788 (9th Ci r. 2011) (affirming 211-month upwa rd variance where district court found by clear and convincing evidence at sentencing that the defendant murdered his wife to create and sustain his fraud); United States v. Pizzolato, 655 F.3d 403 (5th Cir. 2011) (affirming on waiver gr ounds a 172-month upward vari ance where the defendant operated a four-year Ponzi scheme involvi ng 180 victims who lost a total of $19,500,000).United States v. Smith, No. 12-3289 EBEL , J., concurring

I agree that we must vacate Defendant-A ppellant Jordan Smith ’s sentence because of procedural errors. Moreover, regardless of whether Smith’s federal sentence runs consecutively or concurrently to his nine -year state sentence, the 180-month aboveguideline federal sentence the district court imposed for his two wire fraud convictions was substantively unreasonable. The 180-month sentence was a significant upward variance, more than three times the top of Smith’s advisory guideline range and adding, in absolute terms, ten years to the usual fou r- to five-year sentence that the Sentencing Commission envisioned for a mine-run defend ant with the same offense level and criminal history as Smith. Th e district court varied upward to this degree because the court determined that Smith was incorrigible. I cannot agree, in light of Smith’s young age (twenty-three at the time of sentencing); the fact that Smith has never, before his current burglary-and-wire fra ud scheme, served any time in prison, only suspended sentences, and short stints in jail and on work release 1 ; and because his prior criminal

1 See United States v. Mishoe, 241 F.3d 21 4, 220 (2d Cir. 2001) (noting that, “if a defendant served no time or only a few months for the prior offenses, a sentence of even three or five years for the cu rrent offenses might be exp ected to have the requisite deterrent effect”); United States v. Qualls , 373 F. Supp. 2d 873, 877 (E.D. Wis. 2005) (“Generally, a lesser period of imprisonmen t is required to deter a defendant not previously subject to lengthy in carceration than is necessary to deter a defendant who has already served serious time yet continues to re-offend.”); United St ates v. Hammond, 240 F. Supp. 2d 872, 880 (E.D. Wis. 2003) (noting that “if a defe ndant’s prior sentences were measured in months or days, a federal senten ce of just a few years would likely provide a significant deterrent”).-2- conduct does not indicate that Smith committed the same offenses over and over again. There is no question that Smith has amassed a long list of prior convictions, despite his young age. But those convictions were gene rally for petty crimes and traffic offenses, which Smith’s criminal history sc ore already takes into account. Recognizing that determining whether a sentence is substantively unreasonable is a sui generis endeavor grounded in the specific facts in a given case, see United States v. Ressam, 679 F.3d 1069, 1087-88 (9th Cir. 2012 ), Smith’s sentence is similar to the sentence struck down as unreasonable in Unite d States v. Tucker, 473 F.3d 556 (4th Cir. 2007). There, the defendant was convicted of bank fraud; her guideline sentencing range was 24 to 30 months in prison. Id. at 557-58. The district court varied upward ten years to impose a 144-month sentence in order to protect the public, after the court concluded that the defendant was “a scheming thief” and “apparently always would be.” Id. at 564- 65 (internal quotation marks, alteration omitted). The Fourth Circuit vacated that sentence, holding that, “[a]lt hough the risk of recidivism could justify an upward variance, the extreme [ten-year] increase [in th at case] reflects an exercise of judicial discretion of the kind that the Sentencing Act was designed to avoid.” Id. at 564. In support of its decision, Tucker noted that the Supreme Court had pr eviously stressed the importance of maintaining “‘a strong conn ection between the sentence imposed and the offender’s real conduct—a connection impor tant to the increased uniformity of sentencing that Congress intende d its Guidelines system to achieve.’” Id. (quoting United States v. Booker, 543 U.S. 220, 246 (2005)); see also United States v. Allen, 488 F.3d 1244, 1258-59 (10th Cir. 2007) (noting “that courts of appeals have regarded-3- extreme variances on the basis of such f actors [as the defendant’s likelihood of recidivism or reform] unreasonable”). That reasoning applies to Smith’s sentence, as well. I realize that we must a fford the district court’s se ntencing decision significant deference, see Gall v. United States, 552 U.S. 38, 41, 49, 51- 52 (2007), and that it will be a rare sentence that is substantively unreason able, see United States v. Fraser, 647 F.3d 1242, 1247 (10th Cir. 2011). And Smith’s cas e does present circumstances that would justify an upward variance. But the extent of the variance impos ed in this case is just too great for a sentence “sufficient, but not greater than necessary” to ac hieve the purposes of a federal sentence, 18 U.S.C. § 3553(a). S ee Gall, 552 U.S. at 50 (noting that “a major departure” from the advisory gu ideline range “should be sup ported by a more significant justification than a minor” variance). Smith’s 180-month sentence, even run concurrently to his state sentence, is substantively unreasonable.