UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERIC A , Plaintiff - Appellee,

v. GREGORY YARNE LL WILLIAMS, Defendant - Appellant. No. 23-6034 (D.C. No. 5:20-CR-00149-PRW-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT 

________________ _________________ Before PHILLIPS , BALDOCK , and ROSSMAN , Circuit Judges. 

________________ _________________ Gregory Yarnell Williams pleaded guilty to one count of possessing methamphetamine with intent to distr ibute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and one count of be ing a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court initially imposed

 This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its pe rsuasive value consistent with Fed. R. App. 32.1 and 10th Cir. R. 32.1.

 After examining the briefs and appellate record, this panel has determined unanimously that oral argum ent would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordere d submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### December 12, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 12 concurrent 284-month sent ences on each count. Mr . Williams appealed, and this court vacated th e judgment and remanded for resentencing. See United States v. Williams (Williams I) , 48 F.4th 1125, 1128 (10th Cir. 2022). On remand, the district court imposed a 2 72-month sentence for the drug count and a 120-month sentence for the firear m count, again running concurrently. On appeal, Mr. Williams argues his sent ence is substantiv ely unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I The background facts are detailed in Williams I , 48 F.4th at 1128–32. A summary suffices for this appeal. A In May 2020, investigators observed Mr. Williams pick up a package flagged as suspicious by the United States Postal Inspection Service. Id. at 1128. A month later, investigators intercepted a different package addressed to the same residence and discovered it contained suspected methamphetamine in vacuum-sealed bundles. Id. at 1129. The investigators repackaged the shipment for delivery, an d law enforcement officers subsequently observed Mr. Williams bring the package inside the residence and leave in his SUV shortly thereafter. Id. Officers stopped the SUV, arrested Mr. Williams, and ob tained a search warrant for the residence, where they found the resealed package, two scales, a heat sealer, Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 23 a surveillance system, and a loaded revolver. Id. Subsequent testing showed the intercepted package cont ained 1,222 grams of actual methamphetamine. Id. Mr. Williams was convicted after pleading guilty to one count of possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and one co unt of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Williams’s advisory Sentencing Guidelines range was 360 months to life imprisonment. The district court granted a downward vari ance from the Guidelines range and imposed concurrent 284-month sentences on each count. This court vacated Mr. Williams’s sentence and remanded to the district court to (1) make further drug- quantity findings regarding the § 841 violation and (2) resentence Mr. Willia ms on the § 922 violation without the Armed Career Criminal Act enhancement. B On remand, the United States Pro bation Office filed a supplement to the presentence investigation report (PSR). Probation calculated Mr. Williams’s total offense level as 38: Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 34  Base Offense Level – § 841(a) violation 1 36

 Specific Offense Characte ristics – § 2D1.1(b)(1) +2

 Specific Offense Characte ristics – § 2D1.1(b)(12) +2

 Acceptance of Responsibility – § 3E1.1(a) 2 -2

 Total Offense Level 38 R.II at 48–50. At criminal history cate gory VI, Mr. Williams’s Guidelines range was 360 months to life. Mr. Williams filed a sentencing me morandum requesting a downward variance from the Guide lines range under 18 U.S. C. § 3553(a). As relevant here, Mr. Williams urged the court to consider his good conduct since the original sentencing, “including work in a UNICOR facility, educational programming, and the lack of instituti onal misconduct sanctions.” R.I. at 211. He also pointed to data from the Judiciary Sentencing Information

1 The PSR supplement grouped the § 841(a) and § 922 counts under U.S.S.G. § 3D1.2(c).

2 At the original sentencing, the government did not move for the additional one-level decrease pursuant to § 3E1.1(b). As the government explains in its Response Brief, the government declined to move for the additional one-level poin t decrease “[b]ased on a letter submitted to the district court in which Mr. Williams downplayed his involvement in the distribution of the drugs and claimed th e firearm did not belong to him, that the house was not used for drug distribut ion, and that ‘this was a one time thing for methamphetamin e.’” Resp. Br. at 6. Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 45 (JSIN) database showing the mean le ngth of imprisonment for similar methamphetamine offenders 3 is 240 months. At the resentencing hearing, the di strict court initially calculated Mr. Williams’s Guidelines range based on an offense level of 36 and a criminal history category of VI, yielding a Guid elines range of 324 to 405 months of imprisonment on the drug count and 120 months of incarceration on the firearm count. After hearing argu ments from Mr. Williams and the government, the district court grante d in part and denied in part the downward variance. The district court began by explai ning why it originally imposed a 284-month sentence—the subject of the direct appeal in Williams I . That sentence “wasn’t driven by the gui deline range,” the district court explained, “because it wa s . . . way below the guide line range.” R.III at 37. Rather, [the court] was largely co ncerned at the time about . . . the criminal history cate gory of VI and that sort of continuous, but escalati ng conduct related to drug trafficking, the fact that Mr. Williams was kind of past the age that you woul d normally see aging out [of this type of criminal activity], and yet nothing was changing and the prior in terventions just hadn’t

3 Mr. Williams maintained this da ta was specific to “individuals sentenced under the primary Guidelin e of § 2D1.1 for methamphetamine with a criminal history category of VI and who did not benefit from a substantial assistance motion under § 5K1.1.” R.I at 214. These metrics are not relevant to this appeal. Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 56 seemed to do anything. So the sentence was really driven by that and [the court’s] concern about the need to protect the public. R.III at 29. Still, the district court im posed a below-Guide lines sentence of 284 months “because just look ing at [Mr. Williams’s] ag e, . . . . he’s going to be quite an old man by the time he ge ts out.” R.III at 29. “[S]urely at that point in his life,” the cour t reasoned, “he will be ag ed out of this conduct.” R.III at 29. But the court “wanted to im pose a sentence that wasn’t a life sentence . . . . [t]hat wasn’t one where [Mr. Williams would think] that there was no prospect on the other end” such that he would “give up” on bettering himself while incarcerated. R.III at 37–38. The 284-month sentence, then, was selected to be “long enough to protect the pub lic from future crimes by [Mr. Williams],” but “was not so lengthy as to make [Mr. Williams] give up and think that [he is] never go ing to get out.” R.III at 38. According to the district court, “[v]irtually nothing has changed” since the original sentenci ng proceeding, and “[r]eally the only thing that’s cutting in [Mr. Williams’s favor on resentencing] is . . . that [his] conduct since being incarcerated has been good and [he has] taken advantage of programming in an attemp t to better [himself].” R.III at 38. The court reasoned that “[not] a ton of credit” sh ould be given to Mr. Williams for good conduct while incarcerated, beca use “you should behave while Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 67 incarcerated,” but the cour t “appreciate[d]” that Mr. Williams was taking advantage of BOP programming. R.III at 38. The district court sentenced Mr. Wil liams to prison for 272 months on the drug count and 120 months on th e firearm count, to run concurrently, yielding a sentence one year shorter th an the original sentence. The court acknowledged that in coming to its re sentencing decision, it “consider[ed] the need to avoid unwarranted sent ence disparities among similarlysituated defendants.” R.III at 27. Mr. Williams timely appealed. II “[A]ppellate review for reasonable ness includes both a procedural component, encompassing the method by which a sentence was calculated, as well as a substantive component, which relates to the length of the resulting sentence.” United States v. Smart , 518 F.3d 800, 803 (10th Cir. 2008). This appeal presen ts a single question following the remand in Williams I : whether the 272-month sentence imposed by the district court on resentencing is substantively unreasonable. “[A] substantive challenge conc erns the reasonableness of the sentence’s length and focuses on the di strict court's consideration of the § 3553(a) factors and the sufficiency of the justifications used to support the sentence.” United States v. Sanchez-Leon , 764 F.3d 1248, 1267 (10th Cir. Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 78 2014) (quoting United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011)). “When reviewing a sentence for substa ntive reasonableness, we focus on ‘whether the length of the senten ce is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).’” 4 United States v. Cookson , 922 F.3d 1079, 1091 (10th Cir. 2019) (quoting United States v . Friedman , 554 F.3d 1301, 1307 (10th Cir. 2009)). “A sentencing decision is substantiv ely unreasonable if it ‘exceed[s] the bounds of permissible choice, given the facts and the applicable law.’” United States v. Chavez , 723 F.3d 1226, 1233 (10th Cir. 2013) (quoting United States v . McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)). “We review the substantive reasonableness of a sentence under a deferential abuse-of-d iscretion standard.” 5 United States v. Richards , 958 F.3d 961, 968 (10th Cir. 2020); see also Smart , 518 F.3d at 805 (“[I]t has

4 Under 18 U.S.C. § 3553(a), district courts are requir ed to consider seven factors in sentencing: “(1) the na ture and circumstances of the offense and the history and characteristics of the defendant; (2 ) the need for a sentence to reflect the bas ic aims of sentencing, na mely (a) just punishment (retribution), (b) deterrenc e, (c) incapacitation, an d (d) rehabilitation; (3) the kinds of sentences available; (4) the Sentencing Commission Guidelines; (5) Sentencing Commission policy state ments; (6) the need to avoid unwarranted sentencing disparities; and (7) the need for restitution.” United States v. Cookson , 922 F.3d 1079, 1092 (10th Cir. 2019) (citation and quotation marks omitted).

5 This abuse of discretion standar d applies regardle ss of whether the sentence on review was imposed on sentencing or resentencing. See United States v. Maldonado-Passage , 56 F.4th 830, 841–42 (10th Cir. 2022). Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 89 been well settled that we review a distr ict court’s sentenci ng decisions solely for abuse of discretion.”). “We may no t examine the weight a district court assigns to various § 3553(a) factors, and its ultimate assessment of the balance between them, as a legal conc lusion to be reviewed de novo.” Smart , 518 F.3d at 808. “Instead, we must . . . . defer no t only to a district court’s factual findings but also to its determin ations of the weight to be afforded to such findings.” Id. “[I]n many cases there will be a range of possible outcomes the facts and law at issue can fairly support . . . [and] we will defer to the district court’s judgment so long as it falls within the realm of . . . rationally available choices.” United States v. Durham , 902 F.3d 1180, 1236 (10th Cir. 2018) (quoting United States v. McComb , 519 F.3d 1049, 1053 (10th Cir. 2007)). As Mr. Williams acknowledges, we apply a “rebuttable presumption of reasonableness to a below-guide line sentence challenged by the defendant as unreasonably harsh.” Richards , 958 F.3d at 968–69 (quoting United States v. Balbin-Mesa , 643 F.3d 783, 788 (10th Cir. 2011)). A “[d]efendant may rebut this presumptio n by demonstrating the sentence is unreasonable when viewed against th e factors described in § 3553(a).” Id.
at 969. On appeal, Mr. Williams contends the district court gave insufficient weight at his resentencing to three sta tutory sentencing factors. According Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 910 to Mr. Williams, had the district co urt properly weighed the § 3553(a) factors, it would have found the following factors favored a lower sentence: (1) his history and characteristics, § 3553(a)(1); (2) his risk of recidivism, § 3553(a)(2); and (3) the need to avoi d unwarranted sentence disparities, § 3553(a)(6). As we explain—and pa rticularly given the deferential standard of review—we cannot conclude th e district court’s decision to vary 52 months below the Guidelines ra nge was an abuse of discretion. A Mr. Williams first argues the distr ict court “seemingly gave no material weight to the terrible childhood that Mr. Williams endured,” citing Mr. Williams’s childhood povert y and the “tough, gang-infested neighborhoods” where Mr. Williams grew up. Opening Br. at 10. As an initial matter, we acknowle dge the record supports the claim Mr. Williams endured a challenging child hood, and we have no reason to conclude the district cour t was unaware of this as pect of Mr. Williams’s history. The district court informed the pa rties that it had read “everything” in advance of resentencing, which ne cessarily included the presentence investigation reports and sentencing memoranda describing Mr. Williams’s childhood adversities. But the district court fu rther explained that a particular aspect of Mr . Williams’s “history and characteristics”—namely, his “significant criminal history”—“w as the real driving factor in the Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 1011 [court’s] original sentence,” and on resentencing, “nothing has changed in that regard.” R.III at 27, 30. Unde r these circumstances, we discern no error. As we have expl ained, “[w]e may not examine the weight a district court assigns to various § 3553(a) fact ors . . . de novo” but instead must defer to a district court’s determination of the weight to be afforded to those factors. Smart , 518 F.3d at 808. While the distr ict court had the discretion to grant Mr. Williams a downward vari ance based on his childhood, it did not abuse its discretion by declining to do so. B Mr. Williams next argues the di strict court overestimated Mr. Williams’s risk of recidivism and “fail[ ed] to appreciate the likelihood that a defendant like Mr. William s would desist [from crim inal activity] in his 50s or 60s.” Opening Br. at 11. He co ntends “the distri ct court reasoned that, if Mr. Williams has not aged out of crime by now, there is no reason to believe he will desist his criminal behavior until he is in his mid-70s, . . . . [b]ut this is not ho w recidivism works.” Opening Br. at 11. In support of this contention, Mr. Williams po ints to empirical data purportedly indicating “a significant proportion of defendants wh o continue to offend into their 40s will stop such criminal behavi or in their 50s or 60s.” Opening Br. at 11. The empirical data marshalled by Mr. Williams on appeal was not presented to the district court. See Resp. Br. at 18–19. We cannot say the Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 1112 district court abused its discretion by failing to consid er evidence not brought before it. Nor may we consider such evidence for the first time ourselves. See United States v. Suggs , 998 F.3d 1125, 1141 (10th Cir. 2021) (“[W]e are ‘a court of review , not of first view.’” (quoting Cutter v. Wilkinson , 544 U.S. 709, 718 n.7 (2005)); see generally United States v. Wilson , 839 Fed. App’x. 269, 271 n.7 (10th Cir. 2021) (“Because Mr. Wilson’s letter was not before the district court at the time that the court imposed Mr. Wilson’s sentence, its contents cannot properly factor into our decisional calculus.”). To the extent Mr. Williams argues ge nerally that, given his age, the sentence imposed was greater than ne cessary to protect the public from further crimes, we see no reversible e rror. The district court observed “Mr. Williams was . . . past the age that yo u would normally see aging out [of criminal activity], and yet nothing was changing and the prior interventions just hadn’t seemed to do anything .” R.III at 29. The district court thoughtfully considered ho w best to weigh Mr. Williams ’s risk of recidivism alongside § 3553(a)’s mandate to “imp ose a sentence sufficient, but not greater than necessary.” See R.III at 26 (describing the court’s “overarching concern” as “impos[ing] a sentence th at’s sufficient, bu t not greater than necessary to comply with th e purposes of sentencing.”); see also R.III at 33 (explaining the court “was thinking ve ry much about how long does [Mr. Williams] need to stay in” in light of his age and criminal history). The Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 1213 record shows the court was aware of it s obligation to impose a parsimonious
sentence. See United States v. Martinez-Barragan , 545 F.3d 894, 904 (10th Cir. 2008) (“When crafting a sentence, the district court must be guided by the ‘parsimony principle’-that the sent ence be ‘sufficient, but not greater than necessary, to comply with the purposes’ of criminal punishment, as expressed in § 3553(a)(2).” (quoting 18 U.S.C. § 3553(a))). Conducting the balancing inquiry, the court reasoned “a very lengthy sentence [is] necessary in light of [Mr. Williams’s] criminal history and [his] refusal to give up criminal conduct, despite be ing given many, many chances.” R.III at 37. On this record, we conclude the district court’s decision was one of the “rationally available choices” before it. See Durham , 902 F.3d at 1236 (quoting McComb , 519 F.3d at 1053). C As for the need to avoid unwarra nted sentencing disparities, Mr. Williams contends the district court ga ve insufficient weight to the JSIN data submitted at sentencing. Mr. Williams asserts, based on those statistics, the average sentence for defendants “similarly situated to Mr. Williams” is 240 months—many-mo nths lower than the 272-month sentence imposed by the district court on resenten cing. Opening Br. at 12. “It is unquestionably true that und er § 3553(a)(6), a sentencing court must consider ‘the need to avoid unwarranted sentence disparities among Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 1314 defendants with similar records who have been found guilty of similar conduct. ’” United States v. Garcia , 946 F.3d 1191, 1214–15 (10th Cir. 2020) (quoting 18 U.S.C. § 3553(a)(6)). Here, th e district court acknowledged “the need to avoid unwarranted sentence disparities among similarly-situated defendants” in explaining its considerat ion of the § 3553(a) factors, though it did not reference the JSIN data. R. III at 27. Mr. W illiams accurately describes the JSIN data; at the time of Mr. Williams’s resentencing, it showed defendants with a total offense level of 36 and a criminal history category of VI were sentenced on average to 240 months for trafficking methamphetamine. But recall, the cour t observed it was “concerned . . . about . . . this sort of continuous, but escalating conduct related to drug trafficking . . . past the age that you would normally see aging out [of this conduct].” R.III at 29. The national JSIN statistics cited by Mr. Williams, without more, did not account for—and could not alone re solve—the district court’s expressed apprehensions in this case. See Garcia , 946 F.3d at 1215 (“[Appellant’s] bare national statistics do not shed light on the extent to which the sentences that the statistics pertain to involve defendants that are similarly situated to [Appellant] . . . . notably, whether those defendants have been involved a similar longstanding pattern of . . . serious lawbreaking, which not infrequently involved unlawful po ssession of inherently dangerous Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 1415 firearms.”). Particularly considering the § 3553(a) factors “in light of the ‘totality of the circumstances,’” United States v. Sayad , 589 F.3d 1110, 1118 (10th Cir. 2009) (quoting Gall v. United States , 522 U.S. 38, 51 (2007)), and mindful of the district court’s concerns expressed on this record, we reject Mr. Williams’s argument based on th e JSIN data. The sentence imposed here—which is below Gu idelines and presumptiv ely reasonable—falls squarely within the range of outcomes permitted by the facts and the law. See Durham , 902 F.3d at 1236; Richards , 958 F.3d at 968–69. III The judgment of the district court is AFFIRMED

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ENTERED FOR THE COURT Veronica S. Rossman Circuit Judge Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 15