UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LUCAS WHITMORE, a/k/a Lucas Whitemore, Defendant - Appellant. No. 23-6208 (D.C. No. 5:23- CR-00204-R-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , KELLY , and EID , Circuit Judges.

________________ _________________ Lucas Whitmore appeals his 60-month se ntence imposed in his conviction for being a felon in possession of a firearm in violation of 18 U.S. C. § 922(g)(1). Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm. I. Background In a span of approximately four m onths, Mr. Whitmore was arrested three times while illegally possessing a firearm. During a traffic stop in October 2022, he

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### September 19, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 12 appeared to be intoxicated and an invent ory search of his car discovered a loaded pistol. In December 2022, a witness reported that Mr. Whitmore had fired multiple rounds into the ground during an argument with a woman. Officers recovered four spent shell casings at that scene. A short time later, when officers stopped him, Mr. Whitmore once again appeared to be in toxicated. Officers found another loaded pistol in his car, which was later matched to the four recovered shell casings. In February 2023, citizens reported a vehi cle speeding down the wrong side of the highway. That vehicle eventually crashed. When officers arrived at the scene, they found Mr. Whitmore attempting to hide ju st off the roadway. He once again appeared to be intoxicated. Although Mr. Whitmore claimed he had not been driving, the keys to the crashed vehicle were in his pocket. A se arch of his vehicle uncovered a third loaded pist ol and a loaded magazine. Mr. Whitmore was charged in federal cour t with being a felon in possession of a firearm based on the December 2022 incident. 1 He pleaded guilty. A probation officer prepared a presente nce report (PSR) that calcu lated Mr. Whitmore’s total offense level as 19 and his crim inal history score as 6, pl acing him in criminal history category III. His previous convictions included kidnapping, racketeering involving violent acts, and conspiracy to distribute a controlled substance. The PSR also noted that, while on federal supervis ed release in 2018, 2019, and 2020, Mr. Whitmore was subject to eight violation re ports, including for drug use.

1 The State of Oklahoma also char ged Mr. Whitmore with possessing the firearms and driving under the influence of alcohol. Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 23 The PSR calculated Mr. Whitmore’s gui deline sentencing range as 37 to 46 months’ imprisonment. But it noted that th e district court may wish to vary upward from that range, citing the following: (1) Mr. Whitmore’s reckless discharge of a firearm during the offense, which was not accounted for in the guidelines calculation, and (2) an adequate reflection of the need to protect the public from further criminal conduct by Mr. Whitmore and to deter him from future criminal activity. The PSR cited United States Sentencing Commission statistics indicating that firearms offenders with Mr. Whitmore’ s criminal history category and in his age group have a recidivism rate above 60% 2 and that he had possessed a firearm on three separate occasions between October 2022 and Febr uary 2023. Mr. Whitmore filed a sentencing memora ndum and objected to an upward variance as proposed in the PSR. At th e sentencing hearing, defense counsel acknowledged the district cour t may be concerned by Mr. Whitmore’s discharge of a firearm and his multiple DUI offenses, but he asked the court to impose a sentence within the guidelines range. Defense counsel explained that Mr. Whitmore possessed firearms out of a concern for his safety and asserted that he had endangered no one by firing the gun. He also noted Mr. Wh itmore’s rough upbringing, his supportive family, his intervals of productive, law-abid ing conduct, and his post-release business plans. Defense counsel indicated that Mr. Whitmore was open to treatment for his

2 The PSR stated that firearms offenders with a criminal history category of III, like Mr. Whitmore, have a 69.6% recidi vism rate, and those who are between the ages of 40 and 49 years upon re lease have a 64% recidivism rate. Mr. Whitmore was 45 at the time the PSR was prepared. Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 34 excessive drinking and urged that an above-guidelines sentence was not necessary in light of Mr. Whitmore’s past conduct a nd contributions, his quick acceptance of responsibility in this case, and the cond itions that would be imposed during his supervised release. Mr. Whitmore apologized for his bad d ecisions, explained why he feared for his safety, indicated he wanted to set a be tter example for his children, and asked the court for leniency. In response to the distri ct court’s inquiry, he stated that he had obtained the three guns from people he knew. The government acknowledged Mr. Whit more’s concern for his safety but asked the district court to sentence him at the top of the guidelines range given the combination of his drinking, repeated po ssession of firearms, and discharge of a firearm. The district court adopted the PSR w ithout change. Varying upward from the guidelines sentencing range, the court sentenced Mr. Whitmore to 60 months’ imprisonment. The court stated it ha d considered the PSR, Mr. Whitmore’s sentencing memorandum, and his and the gove rnment’s statements at the sentencing hearing. It explained the sentence as follows: I’ve gone back and reviewed your history from the docket sheet. You know, this is a sad case because . . . you are intelligent. You’re hard-working. You . . . didn’t have a lot of breaks going on. Obvi ously, you were raised in an environment that was . . . not good, but your history is one of . . . drugs and violence and alcohol. Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 45 And . . . these latest incidents -- it’s just fortunate that nobody was . . . killed or badly injured. They . . . weren’t, but they very easily could have been. And, when I consider the senten cing factors set forth in 18 U.S. Code 3553, I agree with the probati on office that a variance upward is appropriate just for the protection of so ciety, to make sure that nobody is injured. And, hopefully, when you get out, you can go back and be a productive member of society and get a job and . . . take care of your family, but right now I just think it’s too dangerous. R., Vol. 3 at 37-38. In the written statemen t of reasons for the sentence, the district court checked the box for protection of the public from further crimes of the defendant, 18 U.S.C. § 3553(a)(2)(C), as the reason for the variance and further stated that it had consider ed Mr. Whitmore’s “criminal history and the nature and circumstances of the offens e.” R., Vol. 2 at 44. Mr. Whitmore appeals, arguing his 60- month sentence is substantively unreasonable.
II. Discussion A. Standard of Review and Legal Background We review the district court’s decisi on to impose a variant sentence for an abuse of discretion. See United States v. Smart , 518 F.3d 800, 802 (10th Cir. 2008); see id. at 806 (“[W]e now review all senten ces—whether inside, just outside, or significantly outside the Guidelines range —under a deferential abuse-of-discretion standard.” (internal quotati on marks omitted)). Because of the district courts’ “institutional experience of imposing large num bers of sentences,” “our standard of review must . . . giv[e] both formal and pr actical deference to the sentencing court’s Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 56 assessment of the f acts under § 3553(a).” Id. at 807. A sentenci ng court abuses its discretion if “the sentence is arbitrary, capricious, wh imsical, or manifestly unreasonable.” United States v. Durham , 902 F.3d 1180, 1236 (10th Cir. 2018) (internal quotation marks omitted). But “w e will defer to the district court’s judgment so long as it falls within the realm of rationally available choices.” Id. (ellipsis and internal qu otation marks omitted). In imposing a sentence, the district cour t “shall consider” the factors listed in § 3553(a). 18 U.S.C. § 3553(a). The statutory factors address: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) th e need for a sentence to reflect the basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, (c) incapacitation, a nd (d) rehabilitation; (3) the kinds of sentences available; (4) the Se ntencing Commission Guidelines; (5) Sentencing Commission policy statements; (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 internal quotation marks omitted). A court may im pose any sentence that is reasonable under these seven factors. Smart , 518 F.3d at 803. On appeal , our reasonableness review includes “a substantive component, which relates to the length of the resulting
sentence.” Id

. 3 “[W]e focus on whether the lengt h of the sentence is reasonable given all the circumstances of the case in light of the [§ 3553(a)] factors.” Cookson , 922 F.3d at 1091 (internal quota tion marks omitted). The dist rict court must provide

3 We may also review a sentence for pr ocedural error—“the method by which a sentence was calculated”—su ch as failing to adequate ly explain a sentence or failing to consider the stat utory sentencing factors. Smart , 518 F.3d at 803. Mr. Whitmore does not raise pr ocedural error on appeal. Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 67 sufficient reasoning to support a variance. Smart , 518 F.3d at 807. And while the degree of a variance is rele vant to our analysis, a va riance need not be based on extraordinary facts. Id. Moreover, our disagreement with the district court’s weighing of the facts will not suppor t an abuse-of-discretion holding. Id. at 808.
B. Mr. Whitmore’s Contentions Mr. Whitmore argues his 60-month above -guidelines sentence, which he asserts includes a significant variance, is substantively unreasonable because the district court relied on a single sentenci ng factor—the protection of the public from further crimes by Mr. Whitmore, see § 3553(a)(2)(C)—while downplaying and failing to give the proper weight and consid eration to the mitigat ing factors raised by defense counsel. We disagr ee that the district court relied on a single sentencing factor. We also do not read the court’ s decision as downplaying mitigating factors rather than weighing them against other factors. The court began its explanation of the sentence by stating it had considered the PSR, Mr. Whitmore’s sentencing memorandum, and the parties’ statements at the sentencing hearing. 4 It indicated it had also re viewed Mr. Whitmore’s criminal history. 5 The court then discussed both positive and negative aspects of

4 The district court confirmed during th e sentencing hearing that it had read and understood the portion of Mr. Whitm ore’s sentencing memorandum explaining why he was concerne d about his safety.

5 As noted, that history included c onvictions for kidnapping, racketeering involving violent acts, and cons piracy to distribute a contro lled substance, as well as numerous violations of conditi ons of his federal supervis ed release between 2018 and 2020. Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 78 Mr. Whitmore’s history and characteristics. See § 3553(a)(1). It noted his difficult childhood and that he is both intelligent a nd hardworking. The court found these positive equities made the cas e sad because Mr. Whitmore ’s history of drugs, violence, and alcohol weighed against them . Turning to the ci rcumstances of the offense and its seriousness, see § 3553(a)(1), (a)(2)(A), the court concluded that Mr. Whitmore could have killed or badly in jured someone and commented that it was fortunate no one had been hurt. Then the district court addres sed the need for the sentence imposed to afford ad equate deterrence and to protect the public from further crimes by Mr. Whitmore. See § 3553(a)(2)(B), (C). 6 The court agreed with the PSR’s analysis of these i ssues, which discussed Mr. Wh itmore’s reckless discharge of a firearm, his possession of a firearm on three separate occa sions during a short time period, 7 and recidivism statistics for fi rearms offenders in Mr. Whitmore’s criminal history and age categories. Finally , in the written stat ement of reasons, the district court referenced pr otection of the public from fu rther crimes, Mr. Whitmore’s criminal history, and the nature and circum stances of the offense as the bases for the variance. See § 3553(a)(1), (a)(2)(C). Thus, we agree with the government th at Mr. Whitmore’s characterization of the district court’s sentenci ng justification as based entir ely on one sentencing factor

6 The deterrence factor in § 3553(a)(2 )(B) includes the n eed to deter the defendant from future crimes. See United States v. Walker , 844 F.3d 1253, 1257 (10th Cir. 2017).

7 Earlier in the sentencing hearing, th e district court asked Mr. Whitmore how he was able to obtain three diff erent firearms in four months. Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 89 is too narrow. We therefore reject hi s contention that his 60-month sentence is unreasonable because the court excessively relied on a single sentencing factor. See Cookson , 922 F.3d at 1093 (stating “we have cautioned against excessive reliance on a single factor in sentencing”). To be sure, the district court ultimately gave considerable weight to protection of the pu blic from further crimes by Mr. Whitmore. But it is also clear that ot her factors contributed to th e court’s assessment of the danger he posed. And it had discretion to de termine the weight as signed to different factors. See id. at 1094; see also United States v. DeRusse , 859 F.3d 1232, 1238 (10th Cir. 2017) (rejecting c ontention “that the district c ourt went outside the wide range of rationally permissible choices av ailable at sentencing when it decided to give substantial weight to [a particular] factor in its de termination of an appropriate sentence”). We must de fer to that determinati on, and we cannot accept Mr. Whitmore’s invitation to reweigh the stat utory factors based on his assertion that the court failed to give the proper weight to mitigating factors. See United States v.
Ware , 93 F.4th 1175, 1181 (10th Cir. 2024); see also United States v. Barnes , 890 F.3d 910, 916 (10th Cir. 2018) (“[N]o algorithm exists th at instructs the district judge how to combine the factors or what weight to put on each one.”). Mr. Whitmore asserts that the district court failed to articulate how an above-guidelines sentence was not greater than necessary in light of other alternatives to combat his alcohol abuse. He faults the court for not discussing (1) substance abuse classes a nd driver’s license and vehicl e-use restricti ons that may be imposed by the State of Oklahoma, (2) alcohol monitoring and testing as Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 910 conditions of supervised release, and (3) his amenability to alc ohol-abuse treatment. We see no abuse of discreti on. Whether the State of Oklahoma would, in fact, impose the cited restrictions and mandatory classes was specu lative. And the district court’s recidivism concerns , as described in the PSR and adopted by the court, extended beyond Mr. Whitmore’s alcohol abus e to his statistical likelihood, as a firearms offender, to reoffend based on hi s age and his criminal history category. Nor are we persuaded that the extent of the variance—13 months above the high end of the guidelines range—is unr easonable given the totality of the circumstances in this case. “[T]he Guidelines range will always appear more extreme—in percentage terms—wh en the range itself is low.” Gall v. United States , 552 U.S. 38, 48 (2007). “[W]e uphold even substantial variances when the district court properly weighs the § 3553(a) factors and offers valid reas ons for the chosen
sentence.” Barnes , 890 F.3d at 916 (affirming downwa rd variances in co-defendants’ sentences from a guidelines range of 70 to 87 months to 24 mo nths and 12 months, id. at 914-15). And “we must give due defere nce to the district court’s decision that the § 3553(a) factors, on a whole, ju stify the extent of the variance.” Id. at 917 (internal quotation marks omitted). The di strict court expresse d concern regarding Mr. Whitmore’s violent criminal history and the seriousness of his offense conduct. That conduct included illegal firearms possession, alcohol abuse, and reckless driving. After his first arre st for possessing a firearm, he possessed a second firearm and discharged it four times during a con frontation. Still undete rred after his second arrest for illegal gun possess ion, he possessed yet anot her firearm while driving Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 1011 intoxicated on the wrong side of the highw ay and crashed his car. At sentencing, defense counsel candidly ackno wledged that the district court could legitimately be concerned about Mr. Whitmore’s offense con duct. Combined with the high rate of recidivism for firearms o ffenders in Mr. Whitmore’s age and criminal history categories, we cannot say that the district court’s decision to vary upward and impose a five-year sentence in this case was unreas onable “given all the circumstances of the case in light of the [§ 3553(a)] factors,” Cookson , 922 F.3d at 1091 (internal quotation marks omitted). Finally, we decline to conclude that the district court’s explanation of Mr. Whitmore’s sentence was so inadequate that his sentence is substantively unreasonable. “[T]he content of the district court’s explana tion is relevant to whether the length of the sentence is substantively reasonable.” Barnes , 890 F.3d at 917. “[W]e rely on the district court’s procedurally-required explanation in order to conduct meaningful appellate review of a sentence’s s ubstantive reasonableness.” Cookson , 922 F.3d at 1091 (interna l quotation marks omitted). Although the district court’s explanation of Mr. Whitmore’s senten ce was relatively brief, it was sufficient for this court to conduct m eaningful appellate review. Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 1112 III. Conclusion We affirm the district court’s judgmen t. We grant the alternative relief requested in Mr. Whitmore’s motion to seal seeking a decision in this appeal that does not disclose matters that should not be av ailable to the public.

Entered for the Court

Allison H. Eid Circuit Judge Appellate Case: 23-6208 Document: 51-1 Date Filed: 09/19/2024 Page: 12