*

This order and judgment is not binding precedent except under the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

May 11, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 09-2190

v. (D. New Mexico)

WAYLON JIM,

Defendant - Appellant.

(D.C. No. 07-CR-00380-MCA-1)

ORDER AND JUDGMENT*

Before TACHA, ANDERSON, and BRORBY, Circuit Judges.

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

unanimously that oral argument 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 ordered submitted without oral argument.

Following a jury trial, defendant and appellant Waylon Jim was convicted

of two counts of involuntary manslaughter while operating a motor vehicle while

under the influence of alcohol, in violation of 18 U.S.C. §§ 1112 and 1153 and

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N.M. Stat. § 66-8-102. He was sentenced to fifty-seven months’ imprisonment,

followed by two years of supervised release. Mr. Jim appeals his sentence,

arguing it is substantively unreasonable. We affirm.

BACKGROUND

At approximately 4:00 a.m. on September 1, 2006, Navajo Nation Police

Department Officer Garrett Thomas responded to a call that an accident had

occurred on the Navajo reservation at Route 9 near Puebla Quintado, New

Mexico. When he arrived at the scene of the accident, Officer Thomas found

Mr. Jim sitting on the ground. Officer Thomas noticed that Mr. Jim smelled of

alcohol, had bloodshot eyes, and slurred his speech when responding to the

officer’s questions. Officer Thomas observed several 12-ounce cans of beer

scattered around the accident site.

Mr. Jim told the officer that he had been driving the car and that he had

been drinking with his passengers, his cousins (Jonah and Regis Sandoval), and

his brother-in-law (Jameson Toledo). The officer found two passengers outside

the car with severe injuries. Regis Sandoval was pronounced dead at the scene,

and Mr. Toledo died en route to the hospital. The weather conditions were clear

and dry. Mr. Jim claimed that he crashed the car after swerving to avoid an elk;

however, no elk tracks were found at the scene.

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A blood draw revealed that Mr. Jim’s blood alcohol level some four hours

after the accident was .095. An expert in the field of forensic toxicology testified

that, at the time of the accident, Mr. Jim’s blood alcohol concentration was

between .14 and .18. The legal limit in New Mexico is .08.

Mr. Jim was charged with two counts of involuntary manslaughter while

operating a motor vehicle under the influence and two counts of involuntary

manslaughter while driving recklessly. He pled not guilty and proceeded to trial,

where the jury convicted him of the two involuntary-manslaughter-while-drivingunder-the-influence counts.

In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”) which calculated an advisory sentence under the

United States Sentencing Commission, Guidelines Manual (“USSG”). The PSR

recommended a two-level enhancement for obstruction of justice, pursuant to

USSG § 3C1.1(a). This resulted in a total offense level of 26 which, when

coupled with a criminal history category of I, yielded an advisory sentencing

range of sixty-three to seventy-eight months.

On October 20, 2008, Mr. Jim filed a sentencing memorandum in which he

objected to the obstruction of justice enhancement and sought both a USSG

§ 5H1.6 six-level downward departure based on his family circumstances and a

downward variance from the advisory range in accordance with United States v.

Booker, 543 U.S. 220 (2005). More specifically, Mr. Jim argued his family

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circumstances were “exceptional” because he provided financial support to his

ailing parents and three minor children, and he argued that a Booker variance

from fifty-seven months to a twenty-seven-month sentence would be sufficient,

but not greater than necessary, to satisfy the sentencing goals of 18 U.S.C.

§ 3553(a). The government responded, urging the court to apply the obstruction

of justice enhancement and sentence Mr. Jim in accordance with the advisory

guideline sentence calculated in the PSR.

On January 22, 2009, Mr. Jim appeared before the district court for

sentencing. He argued that the evidence at trial did not support the obstruction of

justice enhancement. The district court agreed and removed that enhancement,

which reduced his total offense level to 24 and the advisory guideline range to

fifty-one to sixty-three months. Mr. Jim’s counsel then argued for the downward

departure based on family circumstances, which the government opposed on the

ground that every defendant had family circumstances and Mr. Jim’s were hardly

exceptional. After hearing testimony from various family members, the court

denied the downward departure on the basis of family circumstances:

I find there is nothing extraordinary in the circumstances of this

defendant. Yes, there are very, what appear to be, immediate

demands that the family has. And I don’t mean demands in a sense

that they are asking. I simply mean there are needs here that have

been clearly demonstrated concerning assistance to the father who is

disabled and not able to undertake the tasks, physical tasks that he

used to do in terms of hauling wood, matters perhaps related to

maintaining his home, recognizing that the family lives on the

Navajo Reservation and not in a city or in an urban setting. So I

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recognize the needs or the demands of such circumstances we create

here, certainly the fact that there are children here that would have

one parent absent, but I don’t find these are extraordinary matters

that exist here in situations such as this, where a defendant stands

convicted and is facing a period of imprisonment.

Tr. of Sentencing Proceedings at 23-24, R. Vol. 3, Part 5 at 545-46.

The district court then considered Mr. Jim’s request for a twenty-sevenmonth sentence pursuant to the § 3553(a) sentencing factors. The court rejected

that request:

[L]ife was lost as a result of your actions, and there must be

consequences here. The jury found that you were guilty and there

must be consequences. Your attorney has asked for a consideration

of a sentence of approximately 27 months, but I’m going to decline

that request because I think that a sentence of 27 months is not

sufficient here to satisfy, in my view, the goals inherent in the

sentencing factors under Section 3553(a).

This was a terrible, terrible accident, something that is very tragic,

the loss of life. . . . But Mr. Jim there has to be consequences to the

conduct.

. . . 

In your case, Mr. Jim, it is the belief of this Court that a sentence of

57 months is sufficient, but not greater than necessary to accomplish

the sentencing goals inherent in Title 18, Section 3553(a).

Id. at 24-26. After imposing the fifty-seven-month sentence, the court again

reiterated to Mr. Jim the court’s reasoning for selecting that sentence:

In arriving at the sentence here and declining your attorney’s request

that the Court impose a sentence of 27 months, I must note and

emphasize the seriousness of the crimes that occurred here. Two

lives were lost. The sentence of 57 months, in my view, reflects

properly the seriousness of the offense. It is sufficient to protect the

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public and to provide deterrence, in my view adequate deterrence; it

takes into consideration, obviously, the history and characteristics of

you, sir. But importantly, it also considers the nature and the

circumstances of the offense here.

Id. at 29. In this appeal, Mr. Jim challenges that fifty-seven-month sentence as

unreasonable.

DISCUSSION

Following Booker and the cases derived therefrom, we review all sentences

for reasonableness under a deferential abuse of discretion standard. See Rita v.

United States, 551 U.S. 338, 351 (2007); see also United States v. Smart, 518

F.3d 800, 805 (10th Cir. 2008) (“[W]e now review all sentences–whether inside,

just outside, or significantly outside the Guidelines range–under a deferential

abuse-of-discretion standard.”). Reasonableness has two parts: procedural

reasonableness and substantive reasonableness. Mr. Jim only challenges the

substantive reasonableness of his sentence.

“A sentence is substantively unreasonable if the length of the sentence is

unreasonable given the totality of the circumstances in light of the 18 U.S.C.

§ 3553(a) factors.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.), cert.

denied, 129 S. Ct. 428 (2008). “Sentences imposed within the correctly

calculated Guidelines range . . . may be presumed reasonable on appeal.” Id.

Mr. Jim can rebut that presumption by demonstrating that the 18 U.S.C. § 3553(a)

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Mr. Jim does not make that argument on appeal, despite his argument

before the district court that the court should have departed downward six levels

pursuant to USSG § 5H1.6, involving family circumstances.

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factors justify a lower sentence. United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006) (per curiam) We do, however, accord great discretion to the

district court’s view:

[G]iven the district court’s institutional advantage over our ability to

determine whether the facts of an individual case justify a variance

pursuant to § 3553(a) (given that the sentencing judge, for example,

sees and hears the evidence, makes credibility determinations, and

actually crafts Guidelines sentences day after day), we generally

defer to its decision to grant, or not grant, a variance based upon its

balancing of the § 3553(a) factors.

Haley, 529 F.3d at 1311 (citing Gall v. United States, 552 U.S. 38, 51-52 (2007)). 

Mr. Jim does not argue on appeal that the district court incorrectly

calculated the Guideline sentence. Thus, he does not argue that the court should

have granted him a Guidelines-based downward departure.1

 Rather, the focus of

his appellate argument is that the district court erred in failing to grant him a

downward variance in light of the § 3553(a) factors of deterrence, incapacitation,

retribution and rehabilitation. After reviewing the entire record, including the

sentencing transcript, we are convinced that the district court did not abuse its

discretion in sentencing Mr. Jim to fifty-seven months. The court specifically

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In the sentencing proceeding, the district court specifically referred to the

§ 3553(a) sentencing factors no less than five times, and it reiterated several times

the gravity of the crime involving the loss of two young people.

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considered the § 3553(a) factors,2 and those factors fully support the sentence

imposed. We discern no substantive unreasonableness.

CONCLUSION

For the foregoing reasons, we AFFIRM the sentence in this case. 

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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