PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JORDAN SANDOVAL, Defendant - Appellant. No. 19-2041

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CR-01109-WJ-1)

________________ _________________ John V. Butcher, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellant. Nicholas J. Ganjei, Assistant United States Attorney (John C. Anderson, United States Attorney, and Dustin C. Segov ia, Assistant United States A ttorney, on the brief), Office of the United States Attorney for the District of New Me xico, Las Cruces, New Mexico, appearing for Appellee.

________________ _________________ Before BRISCOE , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ BRISCOE , Circuit Judge.

________________ _________________ Defendant-Appellant Jordan Sandoval (San doval) pleaded guilty to committing an assault in Indian Country whic h resulted in serious bodily injury. See 18 U.S.C. §§ 1153 FILED United States Court of Appeals Tenth Circuit 

### May 22, 2020 Christopher M. Wolpert Clerk of Court2 and 113(a)(6). He was sentenced to a prison term of 27 months. Sandoval appeals the district court’s sentence as disproportiona te by noting crimes either committed with greater intent or causing death are afforded only slightly higher sentencing ranges under the Guidelines. At bottom, he argues his sentence is substantively unreasonable. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I Sandoval, after having consumed the equi valent of more than seven beers, was speeding in his vehicle on the San Felipe Indian Reservati on. ROA Vol. II at 3–4. He struck Jane Doe’s vehicle from behind, sendi ng it flipping and spinning towards a ditch. Id. Jane Doe’s pinky finger was severed in the crash. Id. Fortunately, the other passengers in the car, Jane Doe’s young daughter and teenage brother, did not sustain serious injuries. Id. Sandoval was charged with a ssault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6). 1 Id. at 1. He pleaded guilty without a plea agreement. The Presentence Investigation Report (PSR) calculated his base offense level at 14. Id. at 5. After adding a seven-level enhancement for Jane Doe’s permanent injury, the adjusted offense level was 21. Id. Sandoval received a three-level reduction for acceptance of responsibility, resulting in a total offense level of 18. Id. at 6. Sandoval had no previous convictions that yielded criminal history points, altho ugh he did have two

1 Relevant to Sandoval’s briefing, § 113(a )(6) is the federal statute that covers what state law often terms driving under (or while under) the influence, or DWI. See, e.g., N.M.S.A. § 66-8-101 (imposing a basic se ntence of three years’ imprisonment for “great bodily harm” caused by a ve hicle, as a third-degree felony).3 tribal court convictions, both of which related to the consumption of alcohol. Id. at 6–7. The district court adopted the proposed factual findings and Gu idelines calculations in the PSR, concluding the advisory Guidelines range was 27 to 33 months. ROA Vol. III at 18–19. Sandoval requested a downward variance, 2 asking for a sentence of one year and a day. Sandoval argued, as he does on appeal, that the variance was appropriate because the Guideline provision for aggrav ated assault, § 2A2.2, was not intended to cover reckless conduct, which should be punished less severe ly than intentional conduct. ROA Vol. I at 8–19. Sandoval also argued his sentence should be reduced because the offense level applied was only one level belo w where it would have been had Sandoval killed one of the occupants of the Doe vehicle. Id. The district court rejected Sandoval’s argum ents. In particular, the district court noted that “on the involuntary manslaughter [G]uidelines, I thought the [Sentencing] Commission was woefully inad equate in terms of the a dvisory sentencing Guideline range for those particular offens es.” ROA Vol. III at 19. The di strict court went on to say, “[b]ut we’re not dealing here with an invo luntary manslaughter. We are dealing with conduct that was extremely reckless. . . . I’l l find a sentence that is sufficient, but not

2 We note that Sandoval also requested a downward departure in his sentencing memorandum. ROA Vol. I at 8. But “[w]e have no jurisdiction to review a district court’s discretionary decision to deny a motion for downward departure on the ground that a defendant’s circumstances do not warrant the departure.” United States v. Shuck , 713 F.3d 563, 570 (10th Ci r. 2013) (internal citations and quotations omitted). Thus, we do not review the district court’s decisi on not to depart fro m the Guidelines.4 greater than necessary to satis fy the goals of sentencing is a commitment to the custody of the Bureau of Prisons on the low end of the [G]uidelines at 27 months.” Id. at 19–20.
II Sandoval challenges his se ntence as substantively 3 unreasonable. His arguments are predicated purely on policy disputes with the Guidelines. 4 First, he argues that the applied Guideline, § 2A2.2, does not adequa tely reduce sentences when the assault is committed recklessly; and that, because his adjusted offense level is only one level below the base offense level for involuntary mansla ughter involving the reckless operation of a means of transportation, it is disproportionately high. “We review the substantive reasonableness of a sentence for abuse of discretion.” United States v. Chavez , 723 F.3d 1226, 1233 (10th Cir. 2013) (citing Gall v. United
States , 552 U.S. 38, 51 (2007)). “[W]e will find an abuse of discretion only if the district court was arbitrary, capricious, whimsical, or manifestly unreasonable when it weighed the permissible § 3553(a) factors.” United States v. Craig , 808 F.3d 1249, 1261 (10th Cir. 2015) (internal citations a nd quotations omitted). “In our circuit, ‘a within-guidelinerange sentence that the district court properl y calculated . . . is entitled to a rebuttable presumption of reasonableness’ on appeal.” United States v. Wireman , 849 F.3d 956, 964

3 Sandoval does not argue his sentence wa s improperly calculated or otherwise procedurally deficient. See Aplt.’s Br. at 4 n.3.

4 In United States v. Yazzie , 704 F. App’x 767 (10th Ci r. 2017), we addressed and rejected policy arguments which are almost identical to those raised here. We cite Yazzie not as binding precedent, but onl y for its persuasive value. United States v. Engles , 779 F.3d 1161, 1162 n.1 (10th Ci r. 2015) (citing 151 F.R.D. 47 0 (10th Cir. 1993) (containing General Order of November 29, 1993 ) and 10th Cir. R. 32.1 (2015)).5 (10th Cir. 2017) (quoting United States v. Grigsby , 749 F.3d 908, 909 (10th Cir. 2014)). “[T]his presumption of r easonableness holds true even if the Guideline at issue arguably contains serious flaws or otherwise lacks an empirical basis.” Id. (internal quotations and citations omitted, emphasis in original). 5 A. Section 2A2.2’s Lack of Adjustment for Reckless Instead of Intentional Crimes is Not Disproportionate Sandoval argues that his sentence is disproportionate, and thus manifestly unreasonable, because § 2A2.2 does not dis tinguish between intentional and reckless conduct. As a broad statement, Sandoval is ge nerally correct that a criminal defendant’s mental state is often relevant when dete rmining his punishment. But that general statement is not enough for us to conclude that the district court abused its discretion here. First, throughout 18 U.S.C. § 113(a), statutory maximu ms are adjusted based on a variety of factors: the de fendant’s mental state, compare § 113(a)(3) (assault with a

5 We note that when we reference th is rebuttable presumption, it has no “independent legal effect.” Rita v. United States , 551 U.S. 338, 350 (2007). Rather, it “simply recognizes the real-world circumst ance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probab le that the sentence is reasonable.” Id . at 350–51. We note that, even after Rita , not all circuits use the language “presumption of reasonableness” to describe the review acco rded a district cour t’s within-Guidelines sentence. See, e.g., United States v. Carty , 520 F.3d 984, 993–94 (9th Cir. 2008). Based on Rita ’s language, we agree with the Ninth Ci rcuit that the difference “appears more linguistic than practical,” as this appellate-only presumption “does not shift the burden of persuasion or proof.” Id . Instead, when we speak of the “presumption of reasonableness” of a within-Guidelines sentence, we are only aligning with the Supreme Court’s directive that “the Guidelines should be the starting point and the in itial benchmark” in sentencing and not that the resulting within-Guidelines sentence is somehow shielded from scrutiny on appellate review. Gall , 552 U.S. at 49; see also Grigsby , 749 F.3d at 909.6 dangerous weapon with inte nt to do bodily harm), with § 113(a)(6) (assault resulting in serious bodily harm), but also the means used, § 113(a)(4) (assa ult by striking, beating or wounding); and even the relationship of the victim to the defendant, § 113(a)(8) (assault of a spouse, intimate partner, or dating pa rtner). Thus, although the statute and its maximum penalties do take mental state into a ccount, other criteria also drive the relevant penalties. Second, the Guidelines track these statutory maximums: Violations of § 113(a)(1) are punishable by a maximum of twenty year s in prison and governed by Guideline § 2A2.1, applying a base offense level of 33. Violations of §§ 113(a)(2), (3), (6), and (8) are punishable by a maximum of ten years in prison; Guideline § 2A2.2, with a base offense level of 14, applies to these crim es. In contrast, §§ 1 13(a)(4), (5), and (7), punishable by less than 10 years in prison, ar e governed by Guideline § 2A2.3, with a base offense level of 7. Thus, Sandoval’s argument that § 2A2.2 does not account for mental state ignores how the statute differen tiates based on a defendant’s mental state as well as other criteria, and how the Guid elines reflect that differentiation. Additionally, the Sentencing Commission itself had an opportunity to consider Sandoval’s argument, and presumably rejected it. Sandoval partially bases his argument on the interaction between United States v. Zunie , 444 F.3d 1230, 1235 (10th Cir. 2006) and § 2A2.2. Zunie held, as other circuits had, th at a conviction for assault under 18 U.S.C. § 113(a)(6) resulting in serious bodily injury can be based on reckless as well as intentional conduct. Id. Sandoval argues that, consider ing both the conduct § 2A2.2 covers and the fact that Zunie was decided after § 2A2.2 was originally enacted, it was7 manifestly unreasonable for the district court to conclude reckless as sault was within the “heartland” of conduct covered by § 2A2.2. As a result, Sandoval argues, the district court should have granted his re quest for a downward variance. But the Commission amended the base offens e level for § 2A2.2 in 2004, as part of Amendment 663. U.S.S.G. App. C, Vol. III, at 11 (discussing Amendment 663). Although Zunie had not yet been decided, other circu its had held that § 113(a)(6) covered reckless conduct like that at issue here. See Zunie , 444 F.3d at 1235 (discussing United States v. Ashley , 255 F.3d 907, 911 (8th Cir. 2001) and United States v. Loera , 923 F.2d 725, 730 (9th Cir. 1991)). That the Amendmen t did not adjust § 2A2.2 to account for reckless rather than intentional conduct und ermines Sandoval’s argument that § 2A2.2 was not intended to cover reckless conduct. B. The Disparity Between Invol untary Manslaughter and Assault Resulting in Serious Bodily Inju ry Does Not Support Reducing Sandoval’s Sentence If Sandoval had killed one of the vehicl e’s occupants, he would have been prosecuted under 18 U.S.C. § 1112 and Guid eline § 2A1.4(a)(2)(B) would have applied. The base offense level in that case would have been 22; Sand oval’s adjusted offense level was 21. Sandoval argues that a one-level difference between severing someone’s little finger and killing them is not proportional. While Sand oval’s argument has some persuasive value, we are not convinced the dist rict court abused its discretion in declining to vary from the Guidelin es range on that basis. First, as the district court observed at se ntencing, it can just as easily be argued that the base offense level established by the Sentencing Commission for involuntary8 manslaughter offenses involv ing reckless operations of a means of transportation is inadequate and should be raised. See ROA Vol. III at 19. Sandoval responds that, because involuntary manslaughter expressly consider s “means of transportation,” sentences under that provision represent the Commission’s inte nt as regards DWI crimes. Thus, according to Sandoval, in order to consistently sent ence for DWI crimes, a di strict court should lower sentences for DWIs arising under the aggravated assault provision, which does not have specific language to address such cr imes. But Sandoval’s argument is again undercut by Amendment 663. The Commi ssion noted, in enacting Amendment 663 and lowering the base offense level of both invol untary manslaughter and aggravated assault, that it was not intending to benefit those who seriously injure their victims. U.S.S.G. App. C, Vol. III, at 12 (“To ensure that indi viduals who cause bodily injury to victims do not benefit from this decrease in the ba se offense level, the specific offense characteristics addressing degrees of bodily injury each were increased by one level.”). Second, Sandoval is not making a true one-to-one comparison: the base offense level for his crime is 14, not 21. His offens e level was increased by seven because Jane Doe suffered a permanent injury . The Guidelines do not differe ntiate among crimes based on the severity of the perman ent injury caused; the same adjusted offense level would apply if Jane Doe had lost her entire hand, or her leg, or an eye. When considering those injuries, as a policy matter, the difference in base offense leve ls does not appear nearly as disproportionate. Perhaps the district cour t could have granted a downward variance because of the nature of the permanent injury but, given th at the district court found Sandoval’s conduct “extremely reckless,” an upward variance might have been9 appropriate as well. See United States v. Lente , 759 F.3d 1149, 1166 (10th Cir. 2014) (affirming the district court’s upward vari ance, in part relying on the defendant’s “extremely reckless” behavior); United States v. Pettigrew , 468 F.3d 626, 641 (10th Cir. 2006) (“[W]e cannot say that the District Cour t abused its discretion in concluding that Mr. Pettigrew acted excessively recklessly or in departing upward two offense levels based on that conduct.”). Thus, we cannot say the district court abused its discretion in declining to impose a lower sentence becaus e of the nature of Jane Doe’s permanent injury. Neither of Sandoval’s policy arguments esta blish that the district court abused its sentencing discretion. Sandoval cites multiple cas es noting that the district court may, in its discretion, grant a downward variance fro m the Guidelines, perh aps even when only motivated by a policy di sagreement with them. See, e.g., United States v. Friedman , 554 F.3d 1301, 1311 n.13 (10th Cir. 2009) (discussing the flexibility Kimbrough v. United
States , 552 U.S. 85, 91 (2007) accorded district courts to adjust cr ack as compared to powder cocaine Guidelines). Bu t Sandoval has not cited any case where a district court was held to have abused its discretion by sentencing within the Guidelines when it did

not have a policy disagreement with them. To the contrary, a district court is free to “conclude in its individualized judgment that any given Guideline is reasonable and should be given considerable weight.” Wireman , 849 F.3d at 964 (i nternal quotations omitted) (emphasis in original); see also United States v. Morrison , 771 F.3d 687, 693 (10th Cir. 2014) (“district courts are not obligated to vary from . . . Guidelines on policy grounds if they do not have, in fact, a policy disagreement with them.”) (internal citations10 and quotations omitted, addre ssing policy grounds in the cont ext of sentencing for child pornography). The district court carefully considered Sandoval’s arguments before sentencing. We cannot conclude that the district court abused its discretion. The judgment of the district court is AFFIRMED.