on the briefs [*]:
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
C. Troyer, United States Attorney, Michael C. Johnson,
Assistant United States Attorney, Denver, Colorado, for
BRISCOE, KELLY, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
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
Standard of Review
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).
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).
Mr. Ibanez's Appellate Argument
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
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 ...