UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALLEN WESLEY GOOSSEN, a/k/a Allen Wesley Goosen, Defendant-Appellant. No. 16-2252 (D.C. No. 1:16-CR -00857-MCA-1) (D.N.M.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before PHILLIPS , KELLY , and MURPHY , Circuit Judges.

_________________________________ Defendant-Appellant Allen Goossen pled guilty to distribution of heroin (Count 1) and possession with intent to dist ribute heroin (Count 2) in violation of 21 U.S.C. § 841(b)(1)(C) and was sentenced to 90 months’ imprisonment and three years’ supervised release on each count, to run concurrently. 1 R. 156–59. He appeals from the district court’s upward variance from the Sentencing Guidelines range, arguing that his sentence violates th e Fifth and Sixth Ame ndments and that it is procedurally and substantively unreas onable. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S. C. § 1291, and we affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 31, 2018 Elisabeth A. Shumaker Clerk of Court2 Background Mr. Goossen sold heroin to an unde rcover police officer on December 17, 2014, and he possessed hero in packaged for distributi on when he was arrested on January 5, 2015. 2 R. 12–13. At sentenci ng, the district cour t found (based on an earlier evidentiary hearing) that Mr. Goossen injected a friend with heroin on November 30, 2013, which caused his friend’s death. 1 Sentencing Tr. at 13, United States v. Goossen, No. 1: 16-cr-00857-MCA-1 (D.N.M. Oct. 31, 2016), ECF No. 65. The district court determined that Mr . Goossen’s total o ffense level under the guidelines was 12 and that his criminal hi story was II, resulting in a guideline range of 12 to 18 months’ impris onment. Id. at 22–23. The district court then decided, pursu ant to 18 U.S.C. § 3553(a), to vary upward from the guideline range. Id. at 49. Specifically, the court explained that the guideline range inadequately satisfied the n eed for the sentence imposed “to afford adequate deterrence to crim inal conduct” under § 3553(a )(2)(B) and “to protect the public from further crimes of the defenda nt” under § 3553(a)(2)(C). Id. at 49–50. For support, the district court relied on the following factual findings: (1) Mr. Goossen injected his friend w ith heroin approximately 13 m onths prior to the instant offenses, (2) the injection led directly to his friend’s deat h, (3) heroin is the same narcotic as the instant offe nses, and (4) Mr. Goossen con tinued to distribute heroin

1 Mr. Goossen later pled guilty to tr afficking of a controlled substance (resulting in death) in New Mexico state c ourt for the role he played in his friend’s death. State v. Goossen, No. D-1116- CR-201500512-1 (N.M. Dist. Ct. Feb. 13, 2017).3 (as evidenced by the instant of fenses) even after his friend’ s death. Id. at 50. The court found that those circumstances wa rranted an upward variance of 15 levels, raising Mr. Goossen’s total offense level to 27 and the guideline range to 78 to 97 months’ imprisonment. Id. at 50–51. It then sentenced Mr. Goossen to 90 months’ imprisonment on each count, to run concurren tly. Id. at 51. The statutory maximum term of imprisonment under 21 U.S. C. § 841(b)(1)(C) is 240 months.

Discussion Mr. Goossen challenges his sentence on Fifth and Sixth Amendment grounds and also argues that it is procedurally and substantively unreasonable. The constitutionality of a sentence is reviewed de novo, United St ates v. Wilfong, 475 F.3d 1214, 1217 (10th Cir. 2007), and the re asonableness of a se ntence is reviewed for abuse of discretion, United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). “A district court a buses its discretion when it renders a judgment that is arbitrary, capricious, whimsical, or mani festly unreasonable.” Huckins, 529 F.3d at 1317 (quoting United States v. Muñoz-Nava, 524 F.3d 11 37, 1146 (10th Cir. 2008)). A. Mr. Goossen’s Sentence Does Not Viol ate the Fifth or Sixth Amendments A district court may, constitutionally, fi nd facts that lead to a sentence falling within the statutory punishment ranges for a crime. E.g., United States v. Redcorn, 528 F.3d 727, 746 (10th Cir. 2008). Here, the district court did not violate Mr. Goossen’s constitutional rights when it consid ered uncharged conduct in imposing its sentence, because the uncharg ed conduct did not subject Mr. Goossen to a mandatory4 minimum sentence or a sentence beyond the statutory maximum for his crime. See United States v. Zar, 790 F. 3d 1036, 1054–55 (10th Cir. 2015). Mr. Goossen relies primarily on United States v. Allen, 488 F.3d 1244 (10th Cir. 2007), to support his claim that the district court’s upward variance based on uncharged conduct is uncons titutional. The question posed in Allen, however, was not whether consideration of the defenda nt’s conduct was improper; rather, it was “whether the weight given to those actions was excessive.” 488 F.3d at 1259. That is, Allen was decided on substantive r easonableness grounds, not constitutional grounds. Id. at 1252. Moreover, Allen is distinguishable from th e instant case. In Allen, the upward variance was unreasonabl e because it was based on uncharged conduct (attempted sexual abuse of a ch ild or solicitation of murder) that was unrelated to the offense of conviction (met hamphetamine distribution). Id. at 1259– 60. In this case, Mr. Goo ssen’s uncharged conduct (her oin distribution resulting in death) is much more closely related to th e offenses to which he pled guilty (heroin distribution). Additionally, the Allen court did not question the reasonableness of considering the defendant’s uncharged con duct in imposing a sentence. Id. at 1259 (“It might well have been reasonable for th e district court to consider Mr. Allen’s uncharged conduct . . . .”). It took issue instead with the district court’s use of the guideline range for the uncharged conduct as the proper measur e of the variance, finding that this amounted to “sentenc[ing] a defendant for an entirely different, and far more serious, crime.” Id. at 1260. Here, however, the district court did not vary5 upward based on the sentence that would ha ve been imposed had Mr. Goossen been convicted for causing his friend’s death. Instead, it varied upward because Mr. Goossen’s uncharged conduc t affected the ad equacy of the guideline-suggested sentence for his charged conduc t. Specifically, the fact that Mr. Goossen continued to distribute heroin after causing his frie nd’s death demonstrated that Mr. Goossen would not be adequately de terred, and the public not adequately protected, by the same sentence that would be appropriate in a mine-run heroin distribution case. Consequently, the upward variance here diffe rs significantly from the one in Allen, where the sentence imposed was essentially the same as if the defendant had actually been convicted of hi s uncharged conduct. Mr. Goossen also cites Alleyne v. United States, 570 U.S. 99 (2013), for support. But Alleyne con cerned judicial factfinding th at increased a defendant’s mandatory minimum sentence; it does not appl y here, where the dist rict court did not find any facts that altered the defendant’s statutory se ntencing range. See United States v. Cassius, 777 F.3d 1093, 1097 (10th Cir. 2015). Mr. Goossen’s only other support for his constitutional argument comes from Jones v. United States, 135 S. Ct. 8 (2014) (Scalia, J., dissenti ng from denial of certiorari), where Justice Scalia argued that “any fact necessary to prevent a sent ence from being substa ntively unreasonable” must be admitted by the defendant or f ound by a jury. 135 S. Ct. at 8. That, however, is not the law in this circuit. See Redcor n, 528 F.3d at 745–46. Accordingly, we reject Mr. Goossen’s challenge to the constitutionality of his

sentence.6 B. Mr. Goossen’s Sentence Is Procedurally Reasonable “Procedural reasonableness addresses wh ether the district court incorrectly calculated or failed to calcu late the Guidelines sentence, treated the Guidelines as mandatory, failed to consider the § 3553(a) factors, relied on clea rly erroneous facts, or failed to adequately explain the senten ce.” Huckins, 529 F.3d at 1317. Here, Mr. Goossen contends that the di strict court failed to adequa tely explain its sentence. “Regarding the district court’s duty ‘to ad equately explain the chosen sentence,’ ‘[t]he sentencing judge should set forth enough to satisfy the appellate court that he [or she] has considered the parties’ argum ents and has a reasone d basis for exercising his [or her] own legal decisionmaking author ity.’” United States v. Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014) (alterations in or iginal) (citation omitted) (quoting Rita v. United States , 551 U.S. 338, 356 (2007)). As an initial matter, it is unclear wh ether Mr. Goossen properly raised this objection at the sentencing hearing. While Mr. Goossen objected to the sentence as “procedurally and substantively unreas onable,” his argument focused on the magnitude of the variance and the propriety of considering uncharg ed conduct, not on the adequacy of the district court’s explanation. S ee Sentencing Tr. at 56–59. Regardless, we are satisfied that the district court considered the parties’ arguments and adequately expl ained its sentence. The part ies extensively briefed the issue of whether and how the district court should consider Mr. G oossen’s role in his friend’s death, and Mr. Goossen’s objections at the sentencing h earing consisted of arguments that had been briefed. See 1 R. 36–131. The distri ct court heard oral7 argument on the issue twice: on ce at an evidentiary hearing prior to sentencing, 3 R. 91–180, and again at the sent encing hearing itself. And th e district court explained its reasons for varying upwar d from the guideline range, citi ng with particularity two § 3553(a) factors and reitera ting the factual findings that warranted the variance. Given the circumstances, it cannot be said that the district court’s sentence was arbitrary, capricious, whimsical, or ma nifestly unreasonable. We find that the sentence was procedurally reasonable and not an abuse of discretion. C. Mr. Goossen’s Sentence Is Substantively Reasonable “Substantive reasonableness involves wh ether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” Un ited States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007). “In reviewing a district court’s d ecision to deviate from the Guidelines, we ‘consider the extent of the deviation’ but gi ve ‘due deference to the district court’s decision that the § 3553(a) factors, on a whol e, justify the extent of the variance.’” Huckins, 529 F.3d at 1317 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). A district court must give a “specific reason” for vary ing from the guidelines. Id. (quoting 18 U.S.C. § 3553(c)(2 )). That is, it “must give serious consideration to the extent of any departure from the Guidelines and must explain [its] conclusion that an unusually lenient or an unusually harsh se ntence is appropriate in a particular case with sufficient justifications .” Gall, 552 U.S. at 46. The greater th e variance from the applicable guideline range, “the more compelling the reasons for the divergence8 must be.” Allen, 488 F.3d at 1253 (quo ting United States v. Valtierra-Rojas, 468 F.3d 1235, 1239 (10th Cir. 2006)). Mr. Goossen argues that the § 3553(a) fa ctors addressed by the district court — affording adequate deterren ce to criminal conduct and protecting the public from further crimes of the defendant — do not ju stify the extent of the upward variance. He contends that he does not pose “any greater danger to the public than any other person convicted of heroin trafficking” b ecause “[e]very heroin dealer knows that death may result from heroin usage.” Aplt. Br. at 30–31. This court rejected a similar argument in United States v. Valtie rra-Rojas, 468 F.3d 1235 (10th Cir. 2006). There, a defendant convicted of illegal reentry challenged the reasonableness of considering, during sentencing, his propens ity to reenter the Un ited States, claiming that “everyone convicted of illegal reentry has the propensity to return to the United States and would therefore be vulnerable to an increase d sentence for that reason alone.” 468 F.3d at 1241. Th is court found that the defe ndant’s reentry a mere four months after being deported de monstrated a greater propensity to reenter and that the defendant was “deserving of a somewhat gr eater punishment than, say, a defendant whose only return comes years after his deporta tion.” Id. Similarly, the district court here found that because Mr. Goossen ca used his friend’s death and continued distributing heroin afterward, he posed a greater danger to the public than the minerun heroin distribution defendant a nd additional deterrence was necessary. Even if “this court could conclude a different sentence wa s reasonable, we cannot exercise the discretion of the distri ct court and ‘decide de novo whether the9 justification for a vari ance is sufficient or the senten ce reasonable.’” Huckins, 529 F.3d at 1320 (emphasis omitted) (quoti ng Gall, 552 U.S. at 59). Giving due deference to the district court’s decision th at the § 3553(a) factors justify the extent of the variance, we find th at the sentence was substant ively reasonable and not an abuse of discretion. Finally, while it is not precedential, we note that the cour t faced a nearly identical challenge to the reasonableness of a sentence in United States v. Lake, 581 F. App’x 715 (10th Cir. 2014). In Lake, th e defendant pled guilty to conspiracy to possess with intent to dist ribute and to distribute contro lled substances (heroin). 581 F. App’x at 716. Like Mr. Goossen, the de fendant in Lake had also given heroin to an acquaintance, causing the ac quaintance’s death. See id . at 717. Varying upward from a guideline range of 6 to 12 months’ im prisonment, the district court sentenced the defendant to 95 months’ imprisonment because the de fendant had continued his illegal behavior after he had given heroin to (and caused the death of) the acquaintance. Id. at 718. The district c ourt in Lake cited the § 3553(a) factors in support of its variance, noti ng in particular that “this defendant’s observation of the possible negative consequences of heroin us e did not produce any notable changes in his criminal behavior” and that “the defenda nt established that he does pose a risk to the public and that an adequate sentence of imprisonment is needed in this case to protect the public from further crim es of this defendant.” Id. On appeal, this court found that th e sentence was both procedurally and substantively reasonable because “the di strict court adequa tely explained the10 sentence imposed and why a va riance was required,” “the di strict court explained its reasons, and it clearly indicat ed that it had considered the § 3553(a) sentencing factors,” and “the district court considered all the rele vant sentencing factors and demonstrated a clear familiar ity with all of the facts a nd circumstances surrounding Mr. Lake’s offense and his overa ll situation.” Id. at 720–21. Here, the district court — facing remarkably similar circumst ances — provided a nearly identical explanation for issuing a variance of a s lightly smaller magnitu de. Though we are not obligated to follow Lake, we find its reasoning persuasive. The government’s unopposed motion to s upplement the record on appeal with the judgment and sentence fro m the New Mexico state cr iminal case against Mr. Goossen, State v. Goossen, No. D-1116-CR-201500512-1 (N.M. Dist. Ct. Feb. 13, 2017), is GRANTED. AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge