FILED

United States Court of Appeals

Tenth Circuit

September 15, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 07-7047

SHELBY WAYNE SELLS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. NO. 6:03-CR-00069-RAW-SPS-2)

Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal

Public Defender, with her on the brief), Denver, Colorado, for DefendantAppellant.

Ryan M. Roberts, Assistant United States Attorney (Sheldon J. Sperling, United

States Attorney, with him on the brief), Muskogee, Oklahoma, for PlaintiffAppellee.

Before MURPHY, McKAY, and BALDOCK, Circuit Judges.

MURPHY, Circuit Judge.
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I. Introduction

A jury convicted Shelby Sells of conspiring to possess methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 846; knowingly maintaining a

place for the manufacture, distribution, or use of methamphetamine, in violation

of 21 U.S.C. § 856(a)(1); and being a felon in possession of ammunition, in

violation of 18 U.S.C. § 922(g)(1). United States v. Sells, 477 F.3d 1226, 1233-

34 (10th Cir. 2007) (“Sells I”). The district court sentenced Sells to concurrent

terms of 240 months on the drug and drug-house convictions and a consecutive

term of 120 months on the ammunition conviction, resulting in a total sentence of

360 months’ imprisonment. Id. at 1234; see also U.S.S.G. § 5G1.2(d) (providing

that if the bottom of the United States Sentencing Guidelines (the “Guidelines”)

range is above the statutory maximum on any particular count of conviction, the

district court shall run the sentences of separate counts consecutively to the extent

necessary to achieve a sentence within the advisory Guidelines range). In

arriving at that sentence, the district court attributed to Sells, for purposes of

calculating his sentencing range under the Guidelines, all methamphetamine

produced by the conspiracy. Sells I, 477 F.3d at 1242. This court reversed and

remanded the matter to the district court to resentence Sells after first making

“particularized findings as to (1) the scope of the criminal activity [Sells] agreed

to undertake regarding the conspiracy, and (2) the total amount of drugs involved

that were foreseeable to him.” Id.; see also U.S.S.G. § 1B1.3(a)(1)(B). On
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remand, the district court again attributed to Sells all methamphetamine

manufactured by the conspiracy, concluding Sells agreed to participate in the

entirety of the conspiracy and all drugs associated with the conspiracy were

foreseeable by him. Accordingly, the district court reimposed a total term of

imprisonment of 360 months. Sells appeals, contending his sentence is both

procedurally and substantively unreasonable. Exercising jurisdiction pursuant to

18 U.S.C. § 3742 and 28 U.S.C. § 1291, this court affirms the sentence imposed

by the district court.

II. Background

We will not repeat the facts underlying Sells’s convictions, as they are

detailed in our previous opinion. Sells I, 477 F.3d at 1231-34. For purposes of

the present appeal, it is sufficient to note a jury found Sells guilty of, inter alia, 

conspiring with his son Anthony, to manufacture, possess, and distribute

methamphetamine and maintaining, together with Anthony, a drug house to

further those purposes. Id. at 1234. In a sentencing proceeding that occurred

prior to the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), the district court sentenced Sells to a 360-month term of imprisonment. 

Sells I, 477 F.3d at 1234. The district court calculated a Guideline range of thirty

years to life, based primarily on the entire amount of methamphetamine involved
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in the conspiracy. Id. at 1234, 1242. Operating under the then-mandatory

Guidelines, the court sentenced Sells to thirty years’ imprisonment. Id. at 1234.

Sells appealed, arguing (1) the district court should not have attributed the

entire amount of drugs to him because it made neither a finding about the scope

of the criminal activity he personally agreed to undertake nor a finding as to the

amount of drugs reasonably foreseeable to him; and (2) constitutional Booker

error occurred because the district court used judge-found facts to sentence him

under the then-mandatory Guidelines. Id. at 1242. This court agreed with both

contentions, accepting the government’s concession that prejudicial Booker error

occurred and determining the district court failed to make particularized findings

as to the scope of the particular criminal activity Sells agreed to undertake or as

to the amount of drugs reasonably foreseeable to him. Id.; see also U.S.S.G.

§ 1B1.3(a)(1)(B). Accordingly, we reversed and remanded for resentencing. 

Sells I, 477 F.3d at 1242.

Upon remand, Sells filed a series of motions arguing, inter alia, that (1) he

should only be held responsible under § 1B1.3(a)(1)(B) for those amounts of

methamphetamine he personally sold; and (2) the district court should vary

downward from the Guidelines sentencing range. As to the question of his

responsibility for drug quantities other than those he actually handled, Sells

simply argued that because there was no evidence he ever participated in the

manufacturing of methamphetamine, he should not be held responsible for the
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drugs manufactured by Anthony. As to the issue of a variance, defense counsel

discussed the factors in 18 U.S.C. § 3553(a), placing particular emphasis on

Sells’s age. He argued a sentence of eleven years was appropriate for a man of

Sells’s advanced age and that such a sentence would sufficiently protect the

public and deter others from committing the same offense. Defense counsel also

asserted Sells’s prior convictions, which calculated out at a criminal history

category of VI under the Guidelines, involved relatively small amounts of drugs.

The probation officer prepared an addendum to the presentence report

(“PSR”), responding to Sells’s drug-quantity assertions. The probation officer

asserted the PSR correctly calculated Sells’s offense level by including all

amounts manufactured by the conspiracy:

[Sells] and [Anthony] were involved in a jointly undertaken criminal

endeavor involving the manufacture and distribution of

methamphetamine. . . . [A] search warrant was executed at the

“Sells’[s] property” and from [Sells’s] home [] officers recovered

items consistent with manufacture of methamphetamine. . . . [Sells]

introduced George Hanna to [Anthony] and at the time told Hanna

that if he was unavailable, that Hanna could purchase

methamphetamine from [Anthony]. Holly Brown, a former girlfriend

of [Anthony], testified that she had observed [Anthony] cook

methamphetamine on the Sells’[s] property approximately twohundred times. She further testified that every time [Anthony]

manufactured drugs [Sells] would come and collect an amount for

distribution. William Keith Edwards testified that [Sells] was often

present or nearby when the manufacturing was taking place. [Sells’s]

and [Anthony’s] homes were located on common property, near to

one another. [Sells] was aware that methamphetamine was being

distributed from the property and[,] based on testimony of Holly

Brown, that there were between twenty to twenty-five persons per

day visiting [Anthony’s] residence. It is unreasonable to believe that
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[Sells] was not aware and was not involved with the amount of

methamphetamine being distributed from Anthony’s residence. . . . 

It is reasonable to believe that he knew or should have known the

specifics regarding the total amounts of manufacturing and the

volume of distribution within the scope of the overall conspiracy.

In its responsive sentencing memorandum, the government likewise argued that

without regard to whether Sells himself engaged in the manufacture of

methamphetamine, the manufacturing by Anthony was integral to the conspiracy

which Sells joined and was reasonably foreseeable by Sells. In particular, the

government noted Sells and Anthony did not have a simple buyer-seller

relationship, but instead (1) jointly maintained a place for the manufacture and

distribution of methamphetamine, a property owned by Sells; (2) almost every

time Anthony manufactured methamphetamine, Sells obtained a portion of the

amount manufactured; and (3) Anthony and Sells jointly served customers,

demonstrating concerted activity. Because the conspiracy between Sells and

Anthony was a joint undertaking to both manufacture and distribute

methamphetamine, the government asserted attribution of all drugs to Sells was

proper under § 1B1.3(a)(1)(B).

At the sentencing hearing, the district court noted it had “reviewed the

opinion by the circuit court and [was] now prepared to resentence [Sells], taking

into consideration the advisory guideline sentencing range set forth in the

presentence report.” In addition, the court stated it had reviewed the following:

“There’s [defense counsel’s] objections, there’s his sentencing memorandum,
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there’s his motion for downward departure, and there’s his supplemental motion

for downward departure. [The prosecutor] filed a response to [defense counsel’s]

motion and objections. There’s also a second addendum to the presentence

report.” After resolving several preliminary matters, the district court took up

this court’s directive to make particularized findings regarding (1) the scope of

the criminal activity Sells agreed to undertake, and (2) the amount of drugs that

was reasonably foreseeable to him. 

The district court began by inviting Sells’s counsel to address the issue. 

Defense counsel merely reiterated the position taken in Sells’s written

submissions, i.e., because there was no evidence Sells participated in the

manufacture of methamphetamine, he should only be held responsible for the

amounts he personally distributed. In so doing, Sells relied on a portion of Sells I

addressing Anthony’s claim that his conspiracy conviction was not supported by

sufficient evidence. In rejecting Anthony’s claim, this court held as follows: “[A]

reasonable jury could conclude based on [the evidence adduced by the

government] that Anthony had a tacit agreement with [Sells], whereby Anthony

manufactured methamphetamine and he and [Sells] would then distribute it.” 

Sells I, 477 F.3d at 1236.

The district court rejected Sells’s contention that he could not be held

responsible for the methamphetamine manufactured by Anthony simply because
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he had not actually participated in the manufacturing process. In a lengthy oral

ruling on this issue, the district court found as follows:

In this case, [Sells] and [Anthony] were involved in a jointlyundertaken criminal endeavor involving the manufacture and

distribution of methamphetamine.

On July 18, 2003, a search warrant was executed at the

Sells’[s] property, property owned by [Sells] only. From [Sells’s]

home, officers recovered items [consistent] with the manufacture of

methamphetamine. These items included glassware and rubber

gloves.

Testimony was offered during trial that [Sells] introduced

George Hanna to [Anthony] and at the time told Hanna that if [Sells]

was unavailable that Hanna . . . could purchase methamphetamine

from [Anthony].

Holly Brown, a former girlfriend of [Anthony], testified that

she had observed [Anthony] cook methamphetamine on [Sells’s]

property approximately 200 times. Ms. Brown further testified that

every time [Anthony] manufactured drugs, [Sells] would come and

collect an amount for distribution.

William Keith Edwards provided testimony that [Sells] was

often present or nearby when the manufacturing was taking place.

[Sells’s] and [Anthony’s] homes were located on common

property owned by [Sells]. They were in very close proximity to one

another. The two homes, the property itself, was to the court’s

recollection like a compound, about a ten-acre compound . . . .

[Sells] was aware that methamphetamine was being distributed

from the property [] based on the testimony of Holly Brown that

there were between 20 to 25 persons per day visiting [Anthony’s]

residence.

It is unreasonable to believe that [Sells] was not aware and was

not involved with the amount of methamphetamine being distributed

from Anthony’s residenc[e]. This court finds by a preponderance of
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the evidence that [Sells] was a participant in the drug conspiracy in

this case and had or should have had full knowledge of the entire

amount of illegal drugs involved. . . .

. . . .

. . . [T]he court does find by a preponderance of the evidence

that [Sells] was knowingly involved as a co-conspirator in this case

along with [Anthony]. This relates both to manufacture and

distribution of methamphetamine.

Information was presented during the course of the trial

implicating [Sells] in all aspects of the drug-manufacturing and

distribution enterprise. . . .

. . . .

This court finds by a preponderance of the evidence that

[Sells] is accountable for the entire amount of drugs due to the scope

of his agreement with co-conspirators and his involvement with those

co-conspirators.

Sells’s arguments with respect to the sentencing factors in 18 U.S.C.

§ 3553(a) were narrow, focusing on his age and criminal history. With regard to

his age, Sells argued that even a twenty-year sentence for someone sixty-two

years old was “still a horrendous, horrific sentence.” With respect to his criminal

history, Sells argued that the small amounts of drugs involved in the prior

offenses also helped justify a sentence lower than thirty years.

After indicating its awareness of its ability to vary, the court denied Sells’s

request for a variance, stating: “The court has considered each and all of the

factors submitted by the defendant in support of a . . . variance and cannot find

that as to each, or any combination thereof, there exists sufficient justification to
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warrant a . . . sentencing variance in this case.” The court then imposed a

thirty-year sentence. In closing, the district court recited the following:

In formulating the sentence imposed, this court has considered

the nature and circumstances of the offense as well as the

characteristics and criminal history of the defendant. The court has

further taken into consideration the sentencing guideline calculations

contained within the presentence report in addition to any objections,

clarifications, additions, or deletions to those guideline calculations

identified in the addendum to the report or announced in open court

today.

While the court recognizes it is not bound by the sentencing

guideline calculations, the court has considered them and finds them

to be advisory in nature. The sentence prescribed by this court

reflects the seriousness of the offense, promotes respect for the law,

and provides just punishment for the offense. This sentence affords

adequate deterrence to criminal conduct, protects the public from

further crimes of this defendant, and provides correctional treatment

for the defendant in the most effective manner.

The court has further determined that this sentence is

reasonable for this defendant and the crimes for which he’s been

convicted.

III. Analysis

A. Procedural Reasonableness

1. Calculation of Sells’s Sentencing Guidelines Range

“In a controlled substances case, a defendant is accountable for all

quantities of contraband with which he was directly involved and, in the case of a

jointly undertaken criminal activity, all reasonably foreseeable quantities of

contraband that were within the scope of the criminal activity that he jointly
1

In the alternative, Sells attempts to recast this case as one implicating his

due process right to be sentenced on the basis of accurate information. See

United States v. Jones, 640 F.2d 284, 286 (10th Cir. 1981) (holding criminal

defendants have a due process right to be sentenced on the basis of accurate

information). In support of this assertion, Sells contends the district court found,

as a matter of fact, that Sells personally participated in the manufacture of

methamphetamine. He further contends the record is devoid of evidence he

personally participated in the manufacture of methamphetamine, rendering clearly

erroneous the district court’s “finding” to the contrary. Rounding out his

syllogism, Sells asserts the district court relied on its erroneous “finding” as a

part of its sentencing calculus under § 3553(a), denying him his due process right

to be sentenced on the basis of accurate information.

In advancing this argument, Sells relies on the district court’s statement at

sentencing that “[i]nformation was presented during the course of the trial

implicating [Sells] in all aspects of the drug-manufacturing and distribution

enterprise.” Having closely reviewed the sentencing transcript, including the

statement identified by Sells, this court cannot agree that the district court made

the finding Sells seeks to attribute to it. Instead, taken as a whole, the district

court’s statements at sentencing make clear it hewed closely to the task this court

directed it to undertake in Sells I: “make particularized findings as to (1) the

scope of the criminal activity [Sells] agreed to undertake regarding the

(continued...)

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undertook.” United States v. Lauder, 409 F.3d 1254, 1267 (10th Cir. 2005)

(quotation and alterations omitted); see also U.S.S.G. § 1B1.3(a)(1)(B). Sells

asserts the district court miscalculated his advisory Guidelines range when it

attributed to him all methamphetamine manufactured by the conspiracy. In

particular, Sells asserts that because he did not personally participate in the

manufacture of methamphetamine, he should only be held accountable for those

quantities of methamphetamine he personally distributed.

Sells’s challenge to the district court’s drug-quantity determination is a

challenge to the procedural reasonableness of his sentence.1

 United States v.
1

(...continued)

conspiracy, and (2) the total amount of drugs that were foreseeable to him.” 

United States v. Sells, 477 F.3d 1226, 1242 (10th Cir. 2007). That is, the district

court’s statements at sentencing can only reasonably be read for the proposition

that Anthony’s conduct in manufacturing methamphetamine was an essential part

of an integrated drug enterprise, that Sells undertook to join the conspiracy fully

aware that the manufacture of methamphetamine was integral to the success of the

overall conspiracy, and that all of the drugs manufactured by Anthony were

foreseeable to Sells. As set out below, the district court’s findings in this regard

are all supported by the trial record and, thus, not clearly erroneous. Because the

district court did not make the finding Sells asserts it made, Sells’s due process

claim necessarily fails.

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Ellis, 525 F.3d 960, 964 (10th Cir. 2008) (holding a sentence “is procedurally

unreasonable if the court . . . improperly calculated[] the Guidelines range”

(quotations and alterations omitted)). In determining whether the district court

correctly calculated Sells’s advisory Guidelines range, we review the district

court’s legal conclusions de novo and its factual findings for clear error, giving

due deference to the district court’s application of the Guidelines to the facts. 

United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006). A district court’s

determination of the quantity of drugs attributable to a defendant, including the

subsidiary questions of whether drugs were reasonably foreseeable to a defendant

and within the scope of the jointly undertaken criminal activity, is a determination

of fact reviewed only for clear error. Lauder, 409 F.3d at 1267.

Section 1B1.3(a)(1)(B) makes clear that in calculating a defendant’s

offense level under the Guidelines, a defendant must be held accountable for the

conduct of his co-conspirators, including conduct in which the defendant did not
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personally participate, as long as the conduct was within the scope of the jointly

undertaken criminal activity and was reasonably foreseeable to the defendant. 

U.S.S.G. § 1B1.3 cmt. n.2 (describing responsibility of defendants for the conduct

of others in cases of jointly undertaken criminal activity); United States v.

Albarran, 233 F.3d 972, 980 (7th Cir. 2000) (“As a co-conspirator, a defendant

can be held accountable for transactions in which he or she did not personally

participate if such a deal was reasonably foreseeable to him or her.”); United

States v. Carrozza, 4 F.3d 70, 75 (1st Cir. 1993) (“[Defendant] is potentially

liable for the foreseeable criminal acts of others in furtherance of that enterprise

even though he did not personally participate in them.”). The record here

provides ample support for the district court’s finding that Anthony’s

manufacturing activities were within the scope of the criminal activity Sells

agreed to undertake and were foreseeable by Sells. George Hanna testified that

he met Sells in prison and, after their release, began buying methamphetamine

from him. Sells informed Hanna that if he was unavailable, Hanna could

purchase methamphetamine from Anthony. Hanna further testified he purchased

drugs from both Sells and Anthony from the property owned by Sells. As noted

by the government, this evidence demonstrates Sells and Anthony jointly served

clients from the pool of drugs manufactured by Anthony. Holly Brown,

Anthony’s former girlfriend, testified that almost every time Anthony

manufactured drugs, Sells would collect an amount to distribute. Furthermore,
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the jury convicted Sells of jointly maintaining, with Anthony, a place for the use,

manufacture, and distribution of methamphetamine.

The testimony and jury findings set out above are more than sufficient to

support the district court’s factual finding that Anthony’s manufacturing activities

were within the scope of the criminal enterprise Sells agreed to undertake and

were foreseeable to Sells. Cf. U.S.S.G. § 1B1.3 cmt. n.2 (“In determining the

scope of the criminal activity that the particular defendant agreed to jointly

undertake . . . the court may consider any . . . implicit agreement fairly inferred

from the conduct of the defendant and others.”). For that reason, Sells’s

procedural sentencing claim based on the correctness of his advisory Guidelines

range fails.

2. Failure to Adequately Address Sells’s Variance Request

A sentencing court is required to “state in open court the reasons for its

imposition of the particular sentence.” 18 U.S.C. § 3553(c); see also Gall v.

United States, 128 S. Ct. 586, 597 (2007). This requirement is an aspect of

procedural reasonableness. United States v. Romero, 491 F.3d 1173, 1175-76

(10th Cir.), cert. denied, 128 S. Ct. 319 (2007). Although the district court need

not “march through [18 U.S.C.] § 3553(a)’s sentencing factors,” United States v.

Rines, 419 F.3d 1104, 1107 (10th Cir. 2005), it “must provide [this court] with a

record by which [we] can discern whether the district court considered the
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[§ 3553(a)] factors.” United States v. Traxler, 477 F.3d 1243, 1249 (10th Cir.),

cert. denied, 128 S. Ct. 254 (2007).

In his opening brief on appeal, Sells asserted his sentence was procedurally

unreasonable because the district court did not adequately address his request for

a variance. In particular, Sells asserted he made non-frivolous arguments in

support of a downward variance—his age and the assertion his criminal history

was not as serious as Guidelines calculations made it appear—which the district

court did not specifically address. He recognized, however, that because he did

not raise the issue before the district court, he was entitled to relief on this issue

only if he could demonstrate the district court committed plain error. See United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.), cert. denied, 128 S. Ct.

113 (2007). Plain error occurs when (1) the district court errs, (2) the error is

obvious, and (3) the error affects a defendant’s substantial rights. United States

v. Olano, 507 U.S. 725, 732 (1993). If these three prerequisites are met, this

court should exercise its discretion to correct the forfeited error only if the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

At oral argument and in a post-argument filing, Sells conceded this claim

of error is foreclosed by our recent opinion in United States v. Cereceres-Zavala,

499 F.3d 1211, 1216-18 (10th Cir. 2007). We agree that Cereceres-Zavala

forecloses Sells’s assertion that the district court committed plain procedural
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sentencing error when it failed to offer a detailed explanation of its denial of

Sells’s request for a downward variance. Cereceres-Zavala held that in a

run-of-the-mill case involving a sentence within the advisory guidelines range, it

is unnecessary for the district court to specifically address on the record, by

reference to the factors set out in 18 U.S.C. § 3553(a), a request for a sentence

outside the Guidelines range. 499 F.3d at 1216-18. Instead, it is sufficient for

the district court to state how it had arrived at the advisory Guidelines range and

generally note it had considered in gross the factors set out in § 3553(a). Id. at

1217-18; see also Rita v. United States, 127 S. Ct. 2456, 2468 (2007)

(“Circumstances may well make clear that the judge rests his decision upon the

[United States Sentencing] Commission’s own reasoning that the Guidelines

sentence is a proper sentence (in terms of § 3553(a) and other congressional

mandates) in the typical case, and that the judge has found that the case before

him is typical.”).

Sells’s arguments in support of a variance were not complex. Instead, he

simply argued that (1) a sentence at the bottom of the Guidelines range was too

severe a penalty for a man of his age and (2) his criminal history was not as

serious as it might appear at first blush. Rita, 127 S. Ct. at 2468-69 (noting the

existence of a relationship between the complexity of a case and the obligation of

a district court to more extensively detail its sentencing rationale). Before

imposing sentence, the district court specifically stated it had considered these
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arguments and had concluded they did not justify, either singly or considered

together, a downward variance. Furthermore, the sentence ultimately imposed by

the district court was based on a correctly calculated Guidelines range, a stated

consideration of the § 3553(a) factors, and an understanding that the Guidelines

are advisory. In the context of this particular case, the district court’s statements

are sufficient and Sells’s sentence is procedurally reasonable. See id. at 2468

(holding that the law vests discretion in a sentencing judge as to how much is

necessary to say in explaining the reasons for imposing a particular sentence).

B. Substantive Reasonableness

Sells contends his sentence is substantively unreasonable because it is

longer than necessary to satisfy the purposes set out in 18 U.S.C. § 3553(a)(2). In

particular, Sells argues that because of his age (fifty-nine years old when

convicted and sixty-two years old when resentenced), a thirty-year prison

sentence is more than is necessary to provide just punishment, deter criminal

conduct by others, or protect the public from future criminal acts on his part.

When reviewing a sentence for substantive reasonableness, this court

employs the abuse-of-discretion standard. United States v. Munoz-Nava, 524 F.3d

1137, 1146 (10th Cir. 2008). That standard requires “substantial deference to

district courts.” United States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008). “A

district court abuses its discretion when it renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” Munoz-Nava, 524 F.3d at
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1146 (quotation omitted). Because the sentence the district court imposed on

Sells is within a properly calculated Guideline range, it is entitled to a rebuttable

presumption of reasonableness. United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006). The presumption of reasonableness is, however, “a deferential

standard . . . [Sells] . . . may rebut by demonstrating that the sentence is

unreasonable when viewed against the other factors delineated in § 3553(a).” Id.;

Rita, 127 S. Ct. at 2463 (noting the presumption of reasonableness is not a

“strong” presumption).

On appeal, Sells simply asserts his sentence is substantively unreasonable

because it is too lengthy in relation to his age. Because Sells will be eighty-eight

years old when his sentence expires, he asserts the sentence is longer than

necessary to comply with the purposes set out in § 3553(a)(2). See 18 U.S.C.

§ 3553(a) (providing a sentencing court shall impose a sentence sufficient, but not

greater than necessary, to reflect the seriousness of the offense, promote respect

for the law, and provide just punishment; adequately deter criminal conduct;

protect the public from further crimes of the defendant; and provide the defendant

with education training, medical care, or other correctional treatment). In support

of his argument, Sells cites to the concurring opinion in United States v. Pruitt,

502 F.3d 1154 (10th Cir. 2007), and a dissenting opinion from the Sixth Circuit in

United States v. Eversole, 487 F.3d 1024, 1036-37 (6th Cir. 2007) (Merritt, J.,

dissenting).
2

A departure occurs “when a court reaches a sentence above or below the

recommended Guidelines range through application of Chapters Four or Five of

the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101 n.1

(10th Cir. 2007). A variance occurs “[w]hen a court enhances or detracts from

the recommended range through application of § 3553(a) factors.” Id.

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In deciding whether to depart from an otherwise applicable Guideline

range, a district court is specifically discouraged from considering a defendant’s

age. U.S.S.G. § 5H1.1. Nevertheless, in deciding whether to vary,2

 pursuant to

§ 3553(a), from that range, district courts have broad discretion to consider

individual characteristics like age. Gall, 128 S. Ct. at 601 (holding courts may

consider age for variance purposes despite its being a disfavored factor for

departure purposes); see also Muñoz-Nava, 524 F.3d at 1148–49 (same with

regard to employment record). That such a ground for a variance is available

certainly does not, however, mean it is compelled. Cf. United States v. Davis,

No. 05-3784, 2008 WL 3288384, at *6 (6th Cir. Aug. 12, 2008) (“To say that a

district court may account for a defendant’s age at sentencing, . . . is not to say

that [a defendant’s age] by itself warrants [a substantial variance].”).

The record in this case reveals that Sells is a recidivist, having been

convicted in Oklahoma state court of multiple instances of possession of

controlled substances with intent to distribute. Despite increasingly severe

sentences in state court for those successive convictions, Sells continued to

engage in the distribution of controlled substances. As detailed above, the

conspiracy underlying the instant convictions involved exceedingly large
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quantities of methamphetamine (the equivalent of almost 15,000 kilograms of

marijuana) and the maintenance of a place for the manufacture and distribution of

that drug. Furthermore, Sells entered into the instant drug conspiracy within a

matter of days after being released from Oklahoma state prison on a previous

drug-distribution conviction. Finally, Sells engaged in the instant drug

conspiracy at the age of fifty-nine. This fact casts significant doubt on Sells’s

sub silentio assertion that a shorter sentence is sufficient to deter future criminal

acts on his part because he is unlikely to commit additional crimes due to his age. 

Based on all of these facts, together with the presumption of reasonableness that

attaches to a within-advisory-Guidelines-range sentence, we have no difficulty

concluding the refusal to vary downward on the basis of Sells’s age was within

the wide bounds of the district court’s sentencing discretion and the sentence

imposed by the district court is substantively reasonable.

This court’s decision in Pruitt is not to the contrary. Although Pruitt

recites as a background fact the age of the defendant (she was forty-two years old

at the time of sentencing), 502 F.3d at 1156, there is absolutely no discussion in

either the majority or concurring opinions of how Pruitt’s age affected the

substantive reasonableness of her 292-month sentence. This is not surprising

since Pruitt did not argue to the district court that a 292-month sentence was

substantively unreasonable based on her age at the time of sentencing. Id. at 1160

(cataloging arguments made by Pruitt before the district court in support of her
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request for a downward variance). Thus, contrary to Sells’s arguments on appeal,

Pruitt offers no support for his position that his thirty-year sentence is

substantively unreasonable based solely on his age.

It is true that Judge Merritt’s dissenting opinion in Eversole contains

language supporting Sells’s contention that imposing lengthy sentences on

relatively older defendants convicted of drug crimes is substantively

unreasonable. 487 F.3d at 1036 (Merritt, J., dissenting) (“I regard a sentence of

almost 30 years for this 44-year-old man as an unreasonable life sentence . . . .”). 

As the basis for his dissent, Judge Merritt asserted that in imposing a sentence

within the advisory Guidelines range, the district court erred in striking the

balance at sentencing in favor of deterrence and punishment rather than in favor

of rehabilitation. Id. at 1036-37 (Merritt, J., dissenting); see also 18 U.S.C.

§ 3553(a) (providing that each of these three factors are factors a district court

must consider in arriving at an appropriate sentence). Because the Guidelines

provisions relating to sentencing for drug crimes did not, in his view, sufficiently

contemplate potential mitigating factors in drug cases, and therefore not

sufficiently account for the statutory requirement to consider the need to

rehabilitate the defendant, Judge Merritt asserted the district court erred in relying

on the Guidelines in reaching a sentence. Eversole, 487 F.3d at 1036-37 (Merritt,

J., dissenting).
3

As noted above, however, the requirement that the district court consider a

properly calculated Guidelines range in arriving at an appropriate sentence does

not prevent the district court from imposing a sentence outside the advisory

Guidelines range if the other factors set out in § 3553(a) call for such a result.

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The approach advocated by Judge Merritt is, however, clearly at odds with

this court’s binding precedents. As this court has made clear, “the Guidelines are

a factor the district court must consider under § 3553(a).” United States v.

Zamora-Solorzano, 528 F.3d 1247, 1251 (10th Cir. 2008); see also 18 U.S.C.

§ 3553(a)(4). Thus, even if a district court disagrees with the policy choices

underlying the applicable Guidelines, it must still consider the properly calculated

Guidelines range in arriving at an appropriate sentence.3

 Equally importantly,

both the Supreme Court and this court have made clear that it is not the job of an

appellate court to review de novo the balance struck by a district court among the

factors set out in § 3553(a). Gall, 128 S. Ct. at 597-602; United States v. Smart,

518 F.3d 800, 808 (10th Cir. 2008) (“We may not examine the weight a district

court assigns to various § 3553(a) factors, and its ultimate assessment of the

balance between them . . . de novo. Instead, we must give due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justify the extent

of the variance.” (quotation omitted)). Thus, as long as the balance struck by the

district court among the factors set out in § 3553(a) is not arbitrary, capricious, or

manifestly unreasonable, we must defer to that decision even if we would not

have struck the same balance in the first instance. The approach advocated by
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Judge Merritt, which calls for the appellate courts to substitute their views on the

proper balance of the factors set out in § 3553(a) for those of the sentencing

courts on the front lines, is patently at odds with Gall and Smart and does not

convince this court that Sells’s age, standing alone, mandates a lighter sentence.

IV. Conclusion

For those reasons set out above, the sentence imposed by the United States

District Court for the Eastern District of Oklahoma is hereby AFFIRMED.