FILED

United States Court of Appeals

Tenth Circuit

May 28, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

ANTHONY REY,

 Defendant - Appellant.

No. 14-1445

(D.C. No. 1:14-CR-00106-REB-1)

(D. Colorado)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before BRISCOE, Chief Judge, MURPHY, and BACHARACH, Circuit Judges.

_________________________________

The defendant, Mr. Anthony Rey, was convicted of possessing a firearm

and ammunition after conviction of a felony. In considering the sentence, the

court calculated the guideline range (57-71 months) based in part on a conviction

91⁄2 years earlier. In considering the guideline range and other statutory factors,

the court ultimately sentenced Mr. Rey at the bottom of the guideline range (57

months). In this appeal, we are asked to decide: Did consideration of a 91⁄2-year-

* The Court has determined that oral argument would not materially aid our

consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

Thus, we have decided the appeal based on the briefs.

Our order and judgment does not constitute binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel.

Appellate Case: 14-1445 Document: 01019436820 Date Filed: 05/28/2015 Page: 1 
old conviction render the sentence substantively unreasonable? We conclude the

conviction was not too old and that the sentence was substantively reasonable. As

a result, we affirm.

I. Standard of Review

The parties disagree on the standard of review. The defendant urges

application of the abuse-of-discretion standard; the government argues that we

should apply the plain-error standard because the defendant failed to raise its

present argument in district court. For the sake of argument, we can apply the

standard urged by the defendant: the abuse-of-discretion standard. Under this

standard, we reverse only if the district court imposed a sentence that was

“‘arbitrary, capricious, whimsical, or manifestly unreasonable.’” United States v.

White, 782 F.3d 1118, 1129 (10th Cir. 2015) (quoting United States v. MunozNava, 524 F.3d 1137, 1146 (10th Cir. 2008)). In applying this standard, we can

presume that a sentence is substantively reasonable when it falls within the

guideline range. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006). With this presumption, we can reverse only if the district court selected a

sentence that was outside the bounds of permissible choice. United States v.

Regan, 627 F.3d 1348, 1352 (10th Cir. 2010).

II. Application of the Standard of Review

Applying this standard, we conclude that the district court chose a sentence

within permissible bounds. Because the court imposed a prison term within the

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guideline range, we presume that the sentence was substantively reasonable. See

Kristl, 437 F.3d at 1054.

This presumption is rebuttable. See id. Mr. Rey tries to rebut the

presumption, arguing that his conviction 91⁄2 years earlier was too old to be

meaningful. The court could have discounted the conviction because of the

number of years that had passed. But the court also had the discretion to consider

the conviction notwithstanding the passage of 91⁄2 years. After all, the conviction

fell within the Sentencing Commission’s cutoff period (10 years). See U.S.

Sentencing Guidelines Manual § 4A1.2(e)(2).

Though the conviction was 91⁄2 years old, the court pointed to four facts that

supported a relatively harsh sentence:

1. The conviction arose from an incident in which Mr. Rey menaced a

person with a shotgun.

2. Mr. Rey had a criminal history that was extensive and disturbing.

3. He had a history of violence, weapons possession, abuse, and failure

to comply with court conditions.

4. Four prior crimes were not taken into account under the sentencing

guidelines.

Sent. Tr. at 46-48. Balancing these factors, the court chose to sentence Mr. Rey at 

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the bottom of the guideline range. That choice fell within the district court’s

discretion. As a result, we affirm.

Entered for the Court

Robert E. Bacharach

Circuit Judge

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