*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

January 25, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

JEFFREY W. PETERS,

Defendant-Appellant.

No. 09-3155

(D.C. No. 2:08-CR-20142-KHV-1)

(D. Kan.)

 

ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f). 

In this direct criminal appeal, Defendant Jeffrey Peters raises a challenge to

the substantive reasonableness of his sentence. Defendant pled guilty to two

counts of possessing a firearm as an unlawful user of a controlled substance in

violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Based on his prior convictions

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for assault, domestic assault, and possession of a controlled substance, as well as

the fact that he was on probation at the time he committed the instance offense,

Defendant’s criminal history was established as category III under the sentencing

guidelines. Combined with an offense level of twelve, this led to an advisory

guideline range of fifteen to twenty-one months of imprisonment. After

considering Defendant’s arguments for a variance below this guideline range, the

court sentenced Defendant to a fifteen-month sentence on each count, running

concurrently.

On appeal, Defendant argues the sentence imposed was substantively

unreasonable in light of the totality of the circumstances. He argues that the

guidelines calculation overstated his risk of recidivism and the danger he posed to

the public, while the sentence imposed did not take into account the minimal

culpability of the conduct for which he was convicted. He points out that none of

his prior convictions were felonies, nor did any of his prior convictions involve

the use of firearms or other weapons. He also argues that the offense was not

serious—he possessed two shotguns which he sold to undercover officers at a

pawn shop, but he did not use these shotguns illegally, carry them for extensive

periods of time, or conceal his possession of them. He further asserts that he

fully complied with the terms and conditions of his pretrial release and

demonstrated the ability and resolve to overcome his long-term drug addiction

problems during that time. In light of all of these factors, Defendant argues, the

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district court should have imposed a below-guidelines sentence.

We review the substantive reasonableness of a sentence under an abuse of

discretion standard, United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008),

and we conclude that the sentence imposed in this case did not constitute an abuse

of discretion. While Defendant’s criminal history may not have included any

felonies or convictions on firearm-related charges, it nonetheless included

multiple non-trivial offenses—including recent convictions on two counts of

domestic assault for an incident in which Defendant violently attacked his

girlfriend—which make us unwilling to agree with Defendant that his criminal

history overstated the danger he posed to the public. We are also not persuaded

that the nature and circumstances of the offense or Defendant’s history and

characteristics caused the district court’s judgment to fall outside “the realm of . .

. rationally available [sentencing] choices.” United States v. McComb, 519 F.3d

1049, 1053 (10th Cir. 2007). Considering the record as a whole, we see nothing

constituting an abuse of discretion in the district court’s rejection of Defendant’s

request for a downward variance. Defendant’s conviction and sentence are

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge

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