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United States v. Ibanez

United States Court of Appeals, Tenth Circuit

June 26, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JACOB GABRIEL IBANEZ, Defendant-Appellant.

         Submitted on the briefs [*]:

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR-00039-RBJ-1)

          Virginia L. Grady, Federal Public Defender, John T. Carlson, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

          Robert C. Troyer, United States Attorney, Michael C. Johnson, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

          Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

          BACHARACH, Circuit Judge.

         Mr. Jacob Ibanez was convicted of unlawfully possessing a gun. On appeal, he challenges his 50-month sentence on the ground that it was substantively unreasonable. This challenge requires Mr. Ibanez to show that the ultimate sentence was unreasonable based on the statutory sentencing factors. United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011). But Mr. Ibanez fails to address any of the statutory factors. Instead, he attacks the reasonableness of a guideline provision invoked by the district court. Even if we were to agree with Mr. Ibanez's criticism of the guideline provision, this criticism would not implicate the reasonableness of the sentence itself. As a result, we affirm the sentence.

         1. Standard of Review

         In reviewing Mr. Ibanez's challenge, we apply the abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Under this standard, we can reverse only if the 50-month sentence was arbitrary, capricious, whimsical, or manifestly unreasonable. United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009).

         2. Substantive Reasonableness

         We apply this standard based on the nature of the underlying appellate contention. In considering a substantive-reasonableness challenge, we presume that the sentence was reasonable if it fell within the applicable guideline range. United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165 (10th Cir. 2010). To rebut this presumption, the defendant would need to show that the statutory sentencing factors render the sentence unreasonable. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).

         3. Mr. Ibanez's Appellate Argument

         The 50-month sentence fell within the guideline range, triggering the presumption of reasonableness. With this presumption, we consider the district court's explanation for the sentence. United States v. Barnes, 890 F.3d 910, 916-17 (10th Cir. 2018). This explanation reflected the district court's consideration of Mr. Ibanez's unlawful possession of two guns, a number of felonies in his past, a history of violating probation and absconding from parole, his commission of the present offense while on supervised release, a substantial arrearage in child support, his possession of semiautomatic weapons while abusing substances, a continued threat to community safety, and the guideline range.

         Mr. Ibanez does not question the presumption of reasonableness or argue that a 50-month term is unreasonable. He instead argues that the district court increased the offense level based on a guideline that was itself unreasonable, U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(B). But even if the guideline had been unreasonable, we would have little cause to question the reasonableness of the sentence itself. See United States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (per curiam) ("Whatever the district court's views as to the Sentencing Commission's policy judgment underlying a particular guidelines provision, our proper ...


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