PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. HENRY J. ADAMS, III, Defendant - Appellant. No. 13-3207

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRI CT OF KANSAS (D.C. No. 6:12-CR-10232-EFM-3)

David H. Moses, Case, Moses & Zimmerman , P.A., Wichita, Kansas, for Defendant – Appellant. David M. Lind, Assistant United States Atto rney, (Barry R. Gri ssom, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff – Appellee.

Before KELLY , MURPHY , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### May 15, 2014
Elisabeth A. Shumaker Clerk of Court2 Defendant Henry J. Ad ams III participated in a bank robbery on October 18, 2012. He was the lookout and recruited a friend to drive her car. After pleading guilty to the crime, he received an above- guidelines sentence of 140 months’ imprisonment. On appeal he argues that he should have recei ved an offense-level reduction for being a minor participant and that the district cour t abused its discretion in imposing an aboveguidelines sentence. We hold (1) that he was not entitled to a minor-participant reduction because he helped plan the robbery and acted as the lookout and (2) that the district court did not abuse its discretion when it varied hi s sentence upward. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND Defendant does not dispute the accoun t of the offense in the presentence investigation report (PSR). We summarize the essentials. Defendant told investigators that the idea to rob a bank came from Dlaney Nixon and Terry Revels. The two came to his house to discuss their plan. Defendant agreed to participate for a share of the money. He was assigned to be the lookout because he refused to enter the bank. On the day of the robbery Defendant recru ited a friend, Veronica Johnson, to drive him in her car, a blue Infiniti. All Johnson wa s told about the plan wa s that she should be ready “to do a ‘hustle.’” R., Vol. 2 at 37. Defendant and Johnson met Nixon and Revels and followed their white Cadillac in the Infin iti. The three men planned to abandon the Cadillac after the robbery and complete their escap e in the Infiniti. After a stop at3 Nixon’s house, both cars drove to a branch of Intrust Bank. When Nixon and Revels entered the bank, they each wore a mask and carried a black bag. One of them, holding what appeared to be a handgun , yelled at the tellers to “get down, get down,” while the other yelled “where’s the money?” Id. at 35 (internal quotation marks omitted). They took about $3,500 in cash from the bank. De fendant and Johnson waited in the Infiniti during the robbery. Nixon and Revels fled the bank in th eir Cadillac, with Defendant and Johnson close behind. Their escape was stalled, however, when the road was blocked by a passing train. During the delay Revels got ou t of the Cadillac and put a black bag in the Infiniti. When he retu rned to the Cadillac, Defendant le ft the Infiniti and joined him. After they resumed their drive they saw a police officer, and Nix on and Revels began dividing up the money in the remaining blac k bag. The police signaled the Cadillac to stop, but the men kept driving for a few miles. When they eventua lly stopped, the three men fled on foot in different directions. Officers pursued and caught Nixon, who was taken into custody. The officers had observed him throw mone y away before they reached him. Revels broke into a house where he tied up and threat ened a 15-year-old boy, but he was scar ed away when the boy’s father returned. The fa ther alerted the police, who fo und Revels hiding in a pickup truck and arrested him. He had a significan t amount of money on hi s person. Defendant and Johnson were found in the Infiniti not far from the abandoned Cadillac. (How Defendant got back to the Infi niti is not explained in the br iefs or record.) The officers4 who found them asked whether there were a ny weapons in the vehicle, and Defendant said that there was a gun. A search of th e car uncovered a black bag under the driver’s seat that contained clothing, money, and a re alistic looking, but fake , handgun. All four suspects were taken to the coun ty sheriff’s office, where Defe ndant confessed to his role in the crime. Defendant was indicted on one count of armed bank robber y under 18 U.S.C. §§ 2113(a) and 2113(d). He pleaded guilty in th e United States District Court for the District of Kansas on March 25, 2013. The PSR calculated that his total offense level was 22 and that he had a criminal-history scor e of 19, comfortably more than the score of 13 necessary to place him in cr iminal-history category VI, the highest category. The resulting guideline sentencing range was 84 to 105 months’ imprisonment. The PSR did not recommend an upward variance or depart ure. Defendant’s single objection to the PSR was that it did not give him a two-level reduction in offense level for being a minor participant. On August 2, 2013, three days before th e sentencing hearing, the district court provided written notice that it was considering an above-guidelines sentence in light of Defendant’s criminal history. At the sent encing hearing Defendant argued that he was entitled to a reduction in offense level for bein g a minor participant and that he should receive a sentence at the low end of the gui deline range. The cour t denied Defendant’s request for a minor-participant reduction, reas oning that “[h]e took the role as a lookout, as opposed to going into the bank, but the law is clear that all participants are equally5 culpable for the events th at they planned and knowingly participated in.” Id. , Vol. 3 at 14. It also imposed an abov e-guidelines sentence of 140 months’ imprisonment followed by four years of supervised release. The district court explained that an important reason for its sentence was Defendant’s extensive criminal history—he had “50 percent more points than are necessary to place him in a category VI,” id. at 26, and he had “a long range of offenses that scored no points.” Id. at 34. It observed that “one way to look at this history of criminal offenses is that it reveals an escalating level of offenses.” Id. at 26. Further, it expressed concern that Defenda nt had repeatedly reoffended shortly after completing a sentence or while on probation. It concluded that Defendant’s recidivist pattern indicated the need for a sentence that would deter furt her criminal conduct, pr omote respect for the law, and protect the public from further crimes , three of the sentencing factors set forth in 18 U.S.C. § 3553(a). The court also considered other factor s under § 3553(a): it said that the nature of the offense was serious because it was an armed bank robbery; that the sentence should “provide [Defendant] with t ools to promote and engage in a lawful lifestyle,” includin g drug treatment, id. at 39; and that Defenda nt’s sentence should reflect that he was as culpab le for the bank robbery as Revels and Nixon. Defendant objected to the above-gu idelines sentence. In response to a question from Defendant ’s attorney about wh ether the district court had followed the recomme nded methodology for calcula ting a departure, the court explained:6 My sentence is an upward departure, but it’s also a variance based on the factors I previously stated that I think are appropriate to reflect that. . . . I think it’s a sentence that reflects prim arily the factors I have to consider under [18 U.S.C. § 3553(a)], so I view it as more of a variance ultimately than an upward departure in that nuance of criminal law. Id. at 41. The day after the sentencing hearing, the court indicated in its written Statement of Reasons that it varied upward under 18 U.S.C. §§ 3553(a)(1) and (a)(2) to reach its sentence. It did not indicate that it had departed. II. DISCUSSION We first address Defendant’s argument th at he was entitled to an offense-level reduction for being a minor participant in the ro bbery and then turn to his claim that the district court erred when it impos ed an above-guidelines sentence. A. Minor-Participant Sentence Reduction The sentencing guidelines state that the district court should decrease the defendant’s offense level by two if he was “a minor participant in an y criminal activity.” USSG § 3B1.2(b) (2013). Defe ndant argues that he was entitled to that decrease. But the reduction is intended only for “a defendant who plays a part in committing the offense that makes him substantia lly less culpable than th e average participant.” Id. § 3B1.2 cmt. n.3(A). And a defendant is not entitled to a mi nor-participant reduction merely because “he is the least culpable among several partic ipants in a jointly undertaken criminal enterprise.” United States v. Lockhart , 37 F.3d 1451, 1455 (10th Cir. 1994). The defendant bears the burden of proving by a preponderance of the evidence that he was a minor participant in the crime. See id. at 1455. “A trial court’s determination as to7 whether a defendant was a . . . minor participan t is a factual finding that we review only for clear error.” Id

. Defendant argues that he is entitled to a minor-participant reduction because Nixon and Revels did most of the planning, he never entered the bank, and his recruitment of Johnson was “merely opportunis tic.” Aplt. Br. at 9 (italics and underlining omitted). But decisions of this court support the di strict court’s finding that he was not a minor participant. The most analogous pr ecedential opinion is Lockhart . In that case the defendant had participated in a cocaine conspiracy by driving his codefendant to a bus station where the codefendant had arranged to pick up a bag of cocaine from an arriving passenger. See 37 F.3d at 1452–53. We held that the defendant was not a minor participant because he “knew that the purpose of driving to the bus station . . . was to obtain cocaine,” and he expected “to be compensated for his involvement in the conspiracy.” Id. at 1455. Defendant’s role here reveals a similar level of culpability: he knew the plan’s purpose— to rob a bank—and he provided transportati on and expected to be compensated for his role. An unpublished decision of our court, although not precedential, is also supportive. In United States v. Hernandez , 49 F. App’x 834 (10th Cir. 2002), we affirmed the district court’s ruling that a defendant who drove his codefendant to the location of the robbery, supplie d him with a gun, and planned to assist his escape was not entitled to a minor-participant reduction even though he did not “enter the credit8 union, . . . brandish the gun, or threaten credit union employees.” Id. at 836. The role of the defendant in Hernandez was greater than Defendant’s role, but not substantially so. In contrast, the one case cited by Defendant as supportive is readily distinguishable, both factually and procedurally. United States v. Deanovich , 34 F.3d 1077 (10th Cir. 1994) (unp ublished table decision), involved a conspirator who got cold feet. The defendant had “disassociated hims elf from the robber y [by refusing to participate] about 45 seconds to a minut e and a half before it occurred,” and had attempted to dissuade his coconspira tors from carrying out their plan. Id. (internal quotation marks omitted). And the district court’s grant of a minor-participant reduction (which we review only for clear error) was not at issue on appeal. See id. Our sole holding was to affirm the district court’s de cision that the defendant was not entitled to a further offense-level reduction as a minimal participant. See id. Moreover, when we look to other circuits for decisions involving facts like ours, we find strong support for affirming the district court’s finding. In United States v. Tucker , 102 F. App’x 922 (6th Cir. 2004), the defendant argued that he qualified for a minor-participant reduction because his code fendants “had already planned the robbery and acquired the necessary material s” before he became involved, id. at 924. The Sixth Circuit held that the district court did not clearly err when it denied the reduction because the defendant fulfilled his assigned role as th e lookout and getaway driver, and there was no reason to think that he l acked knowledge of th e scope and structure of the robbery. See id. In United States v. George , 221 F. App’x 925 (11th Cir. 2007), the court held that9 a defendant who participated in robberies of licensed firearms dealers was not entitled to a minor-role reduction even though he claimed that he did not want to participate and had acted only as the lookout. See id. at 926–28. The court noted that in addition to serving as the lookout, he had hope d to be compensated for hi s involvement and likely had knowledge of the overall scheme. See id. at 927–28. And in United States v. Johnson , 515 F. App’x 183 (3d Cir. 2013), vacated and remanded on other grounds , 2014 WL 1124839 (S. Ct. Mar. 24, 2014), the Third Circuit affirmed th e district court’s decision not to grant a downward adjustment for bein g a minor or minimal participant when the defendant agreed to be a loo kout for a robbery and knew th e scope of the enterprise. See id. at 190–91. Defendant’s involvement in the robbery in this ca se was similar to the above examples—he acted as the lookout, planned to assist in the escape, and admitted to knowledge of the scheme. The district cour t did not clearly err when it denied him a minor-participant reducti on in offense level. B. Above-Guidelines Sentence Defendant argues that the district court abused its discretion when it imposed an above-guidelines sentence. “[W]e revi ew sentences for reasonableness under a deferential abuse-of-discretion standard.” United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1214 (10th Cir. 2008). “Reasonablene ss review” includes “a procedural and a substantive component.” Id. (internal quotation marks omitted). The procedural component concerns ho w the district court calculated and explained the sentence,10 whereas the substantive component concerns whether the length of the sentence is reasonable in light of the statutory factors under 18 U.S.C. § 3553(a). See id. at 1214–15. Our review of a sentence outside the gu idelines’ recommended range “hinges on the method by which the district court selects the particular sentence.” Id. at 1215. We therefore must begin with an explanation of the two methods by which a district court can impose an above-guidelines senten ce: departure and variance. Before the Supreme Court made the guidelines discretionary in United States v. Booker , 543 U.S. 220 (2005), the only method for increasing a sentence above the guidelines sentencing range was through a departure under Chapter Four or Five of the guidelines. Our review of departures was, a nd continues to be, strict. We apply a fourpart test examining: (1) whether the factual circumst ances supporting a departure are permissible departure factors; (2) wh ether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Alapizco-Valenzuela , 546 F.3d at 1215 (internal quota tion marks omitted). In particular, this examination reviews whether the extent of the departure is justified by reference to features of the guidelines. See United States v. Walker , 284 F.3d 1169, 1172 (10th Cir. 2002) (“We have repeatedly required district courts to explain their reasoning and to specify the facts or factors upon which they relied in se lecting the final sentencing offense level for departing upward.” (inter nal quotation marks om itted)). Additional11 specific rules apply when the departure is under USSG § 4A1.3, which permits an adjustment if the criminal-history cate gory fails to adequately reflect the seriousness of the defendant’s criminal history. See, e.g. , United States v. Robertson , 568 F.3d 1203, 1213 (10th Cir. 2009) (“An up ward departure unde r § 4A1.3(a)(2)(E) is only befitting if a defendant’s prior, adult, crimin al conduct is sufficiently si milar to that underlying the instant offense.”); United States v. Sims , 309 F.3d 739, 742– 43 (10th Cir. 2002) (describing the method a dist rict court must follow in cal culating the sentencing range when departing upward on the ground that a defendant’s criminal-history score underrepresents the defendant’s history of criminal conduct); United States v. Gardner , 905 F.2d 1432, 1438–39 (10th Cir. 1990) (expla ining the proper way to depart under the guidelines when the defendant’s criminal histor y was similar to that of a career offender but he did not technically qualif y for career-offender status). On the other hand, when the nonguidelines sentence is si mply an exercise of the discretion now afforded by Booker —what we call a variance—our review is limited. “In [ Booker ], the Supreme Court held that the manda tory application of the Guidelines to judge-found facts (other than a prior conviction) violat es the Sixth Amendment.” United States v. Kristl , 437 F.3d 1050, 1053 (10th Cir. 2 006). The Court held that the appropriate remedy was to “excise[] the provis ion of the federal sentencing statute that made the Guidelines mandatory, 18 U.S. C. § 3553(b)(1), effectively making the Guidelines advisory.” Id. Although advisory, the guidelines remain “a factor to be considered in imposing a sentence.” Id . In fact, “the star ting point and the initial12 benchmark for any sentencing decision must be a correctly calculated Guidelines sentencing range.” United States v. Todd , 515 F.3d 1128, 1134 ( 10th Cir. 2008) (internal quotation marks omitted). But district c ourts need no longer follow the rules for departures in order to sentence outside the guidelines. See United States v. Gantt , 679 F.3d 1240, 1247 (10th Cir. 2012) (“Now that the Sentencing Guidelines are only advisory, there are no mandatory requirements as to when a district court may sentence a defendant to an above- or below-Guidelines sentence.” (internal quotation marks omitted)). Instead, they can vary from the guidelines “thr ough application of the § 3553(a) factors.” Alapizco-Valenzuela , 546 F.3d at 1216; see also Gantt , 679 F.3d at 1247 (“A variance can be imposed without co mpliance with the rigorous requirements for departures.”). In such cases, “we simply consider whether th e length of the sentence is substantively reasonable utilizing the abuse-of-discretion standard.” AlapizcoValenzuela , 546 F.3d at 1216. We have declined to address arguments against variances that rely only on law applicable to departures. See Gantt , 679 F.3d at 1247. And, “given the district court’s institutional advantage over [an appellate court’s] ability to determine whether the facts of an indivi dual case justify a variance . . . , we generally defer to its decision to grant, or not grant, a variance based upon its balanc ing of the § 3553(a) factors.” United States v. Haley , 529 F.3d 1308, 1311 (10th Cir. 2008). Defendant’s principal challenges to his sentence are (1) that the district court’s sentence did not satisfy the four-factor test for examining a departure, (2) that it failed to appropriately justify the extent of its departure, (3) that it ignored the requirements for13 departures by relying on criminal history that was not similar to the robbery, and (4) that it treated him as a career offende r when he did not qualify as one. These arguments are primarily based on the law rega rding departures. We therefore must determine whether the district court was departing or vary ing from the guidelines when it imposed its

sentence. The district court could have been more prec ise. It said that its sentence was “an upward departure, but it’s also a variance,” and then promptly added, “I think it’s a sentence that reflects primarily the factors I have to consider unde r [18 U.S.C. §] 3553(a), so I view it as more of a variance ultimately than an upward departure in that nuance of criminal law.” R., Vol. 3 at 41. In any event, the court’s imprecision in language is not determinative. “[W]e need not rely solely on the district c ourt’s isolated use of the terms ‘variance’ or ‘departure’ when the court’s la nguage is ambiguous a nd our reading of the entire record suggests a contrary conclusion.” Alapizco-Valenzuela , 546 F.3d at 1222. Here, the record as a whole clearly esta blishes that the sentence was a variance. In keeping with the procedure for imposing a va riance, the district court expressly noted most of the factors under 18 U.S.C. § 3553(a ) when it explained its decision to impose a longer sentence: the nature of the offense and the history of Defendant, see id. § 3553(a)(1); the need for the sentence to reflect the seriousness of the offense and promote respect for the law, see id. § 3553(a)(2)(A); th e need to deter criminal conduct, see id. § 3553(a)(2)(B); the need to protect the public from further crimes of Defendant, see id. § 3553(a)(2)(C); and the need to provide Defendant with educational or vocational14 training and medical care to promote a lawful lifestyle, see id. § 3553(a)(2)(D). In contrast, it did not reference the guidelines pr ovisions that relate to departures. And its Statement of Reasons reported that it varied but did not depart. We conclude that the district court’s sentence is an upward variance from the guidelines. Thus, we need not address most of De fendant’s arguments against imposition of an above-guidelines sentence, which relate onl y to departures. And insofar as Defendant is contending that the district court improperly varied upward in increasing his sentence, our response can be brief. For the reasons ex pressed by the district court—particularly Defendant’s history of repeated criminal offenses—his sentence satisfied the reasonableness standard for substantive review of a sentence. See United States v. Shaw , 471 F.3d 1136, 1141 (10th Cir. 2006) (“ [W]here the court concludes that the Guidelines inadequately reflect a defendan t’s criminal history or the seriousness of the offense, a deviation may be appropriate.” ) Defendant suggests that it was unreasonable for him to receive as long a sentence as Nixon when Nix on was a career offender while he was not.
See 18 U.S.C. § 3553(a)(6) (sentencing cour t shall consider “the need to avoid unwarranted sentence disparitie s among defendants with simila r records who have been found guilty of similar conduct”). “But we have repeatedly explained that § 3553(a)(6) requires a judge to take into account only disparities nationwide among defendants with similar records and Guideline calculations.” United States v. Damato, 672 F.3d 832, 848 (10th Cir. 2012) (internal qu otation marks omitted). And Defendant has compared his sentence only to Nixon’s, not to comparable defendants nationwide. We note that in15 Shaw we affirmed the district court’s decisi on to increase the defendant’s sentence 34 months above his guidelines range so that it was similar to wh at his codefendant received, even though his codefendant’s crim inal-history score qualified him for a higher guidelines range. See Shaw at 1140–41 (“[W]hile the Gu idelines suggested dissimilar records, the [district] court co ncluded that, as a matter of fact, their records were quite similar and that the Guidelines had not adequa tely accounted for that similarity.”). The district court in this case also reasonably believed that Defendant’s criminal history was more serious than his guidelines range would indicate. By examining what Defendant’s guideline sentence would be, the court implicitly compared his sentence to the sentences of defendants nationwide. See Gantt , 679 F.3d at 1248-49. We find no merit in Defendant’s argument that it was unreasonable fo r him to receive as long a sentence as Nixon. III. CONCLUSION We AFFIRM the district court’s sentence.