United States v. Barnes , 890 F.3d 910 ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
May 16, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 17-7016
RAYMOND A. BARNES,
Defendant - Appellee.
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UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 17-7017
CHRISTOPHER A. BROWN,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 6:13-CR-00017-RAW-1 and 2)
April J. Anderson, Attorney (John M. Gore, Acting Assistant Attorney General,
and Bonnie I. Robin-Vergeer, Attorney, with her on the briefs), United States
Department of Justice, Civil Rights Division, Appellate Section, Washington,
D.C., for Appellant.
Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell,
Federal Public Defender, with him on the brief), Office of the Federal Public
Defender, Tulsa, Oklahoma, for Appellee Barnes.
Jimmy L. Hopkins, Tahlequah, Oklahoma, for Appellee Brown.
Before TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
Judges.
TYMKOVICH, Chief Judge.
This is the second appeal arising from crimes committed by two corrections
officers, Raymond Barnes and Christopher Brown, while employed at the
Muskogee County Jail. The government argues the sentences the district court
imposed after we remanded for resentencing are substantively unreasonable.
Because we find the district court did not abuse its discretion in granting a
downward variance from the United States Sentencing Guidelines, we affirm.
I. Background
Barnes and Brown both held administrative roles at the Muskogee County
Jail. Barnes served as the Jail Superintendent and Brown worked alongside him
as the Assistant Jail Superintendent. Our previous opinion extensively recounted
the abuse both Barnes and Brown perpetrated on the jail’s inmates. See United
States v. Brown, 654 F. App’x 896, 900–902 (10th Cir. 2016) (unpublished). In
short, both defendants physically abused prisoners in a variety of ways, engaged
in excessive force against inmates, and intimidated other jail employees to
conceal their illicit activities.
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Authorities charged Barnes and Brown with three counts of assaulting or
conspiring to assault prisoners at the jail. In 2014, a jury convicted both of
various charges. The jury convicted Barnes of one count of conspiracy to violate
constitutional rights and two counts of deprivation of rights under color of law.
See 18 U.S.C. §§ 241, 242. The jury found Brown, on the other hand, guilty of
one count of conspiracy to violate constitutional rights, one count of deprivation
of rights under color of law, and one count of making a false statement to a
federal agent. See 18 U.S.C. § 1001. The district court sentenced Barnes to
twelve months’ imprisonment followed by twenty-four months of supervised
release. Brown received a sentence of six months’ imprisonment followed by
thirty-six months of supervised release.
In the first appeal, Barnes and Brown challenged their convictions. The
government cross-appealed, arguing both sentences were procedurally and
substantively unreasonable. We affirmed the convictions, but vacated the
sentences as procedurally unreasonable because the district court had not
adequately explained the basis for the sentences imposed. Brown, 654 F. App’x
at 900. Since we resolved the case on procedural unreasonableness, we declined
to reach the government’s argument that the sentences were substantively
unreasonable.
On remand, the district court held a hearing, took additional testimony from
witnesses, and heard arguments about the appropriateness of a variance. The
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court concluded it would not apply the advisory guidelines range of 70 to 87
months and granted a variance to each defendant. Accordingly, the court
resentenced Barnes to twenty-four months of imprisonment followed by twenty-
four months of supervised release. The court also gave Brown a new sentence of
twelve months’ imprisonment followed by thirty-six months of supervised release.
All told, the district court doubled each of their terms of imprisonment.
The government again appeals, arguing the new sentences are substantively
unreasonable. We affirm. The district court did not abuse its discretion in
applying the relevant sentencing factors as reflected in its explanation of the
sentences based on defendant-specific facts and circumstances.
II. Analysis
The government contends the district court abused its sentencing discretion
by imposing too lenient a sentence on both defendants. The government urges us
to find the sentences substantively unreasonable.
A. Substantive Reasonableness
We review a district court’s sentencing determination for substantive
unreasonableness by considering whether the sentence “is unreasonable given the
totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors.” United
States v. Caiba-Antele, 705 F.3d 1162, 1165 (10th Cir. 2012). We review a
sentence’s length for abuse of discretion. United States v. Walker, 844 F.3d 1253,
1255 (10th Cir. 2017). A district court abuses its sentencing discretion only if the
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sentence “‘exceeded the bounds of permissible choice.’” United States v.
McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United States v. Ortiz,
804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). We “will reverse only if the sentence
imposed was ‘arbitrary, capricious, whimsical, or manifestly unreasonable.’”
United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (quoting United
States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012)).
When determining a sentence, a court must consider the seven statutory
factors set forth in § 3553(a). The factors include:
1. The nature and circumstances of the offense and
the history and characteristics of the defendant;
2. the need for a sentence to reflect the seriousness
of the crime, deter future criminal conduct, prevent the
defendant from committing more crimes, and provide
rehabilitation;
3. the sentences that are legally available;
4. the Sentencing Guidelines;
5. the Sentencing Commission’s policy statements;
6. the need to avoid unwarranted sentence
disparities; and
7. the need for restitution.
See 18 U.S.C. § 3553(a) (1–7).
We give substantial deference to the district court’s weighing of these
factors. “The sentencing judge is in a superior position to find facts and judge
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their import under § 3553(a) in the individual case.” Gall v. United States, 552
U.S. 38, 51 (2007). “The judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains insights not conveyed
by the record.” Id. “It has been uniform and constant in the federal judicial
tradition for the sentencing judge to consider every convicted person as an
individual and every case as a unique study in the human failings that sometimes
mitigate, sometimes magnify, the crime and the punishment to ensue.” Id. at 52.
In short, “the uniqueness of the individual case . . . does not change the
deferential abuse-of-discretion standard of review that applies to all sentencing
decisions.” Id.
And when we review a downward variance from the recommended
guidelines range, as we do here, even more solicitude to the sentencing court is
appropriate. A “downward variance is based simply on the district court’s
discretionary authority to consider ‘the nature and circumstances of the offense’”
and select “‘a sentence sufficient, but not greater than necessary,’ to comply with
all of the purposes of sentencing.” See DeRusse, 859 F.3d at 1237 (quoting 18
U.S.C. § 3553(a)) (emphasis added).
In addition, our review must acknowledge that sentencing courts can and
should “engage in a holistic inquiry of the § 3553(a) factors.” See United States
v. Lente, 759 F.3d 1149, 1174 (10th Cir. 2014) (quoting United States v. Lopez-
Macias, 661 F.3d 485, 492 (2011)). A district court properly engages in this
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inquiry when it bases its decision on specific, articulable facts supporting the
variance and does not employ an impermissible methodology or rely on facts that
would make the decision out of bounds. DeRusse, 859 F.3d at 1236.
For these reasons, we uphold even substantial variances when the district
court properly weighs the § 3553(a) factors and offers valid reasons for the
chosen sentence.
Consider, for example, DeRusse, where, we upheld a substantial variance
from a 108–135 months guidelines range down to 70 days already served. In so
holding, we rejected the government’s suggestion that a “variance based on the
district court’s discretionary authority should be constrained by . . . the specific
requirements listed in [the] guideline . . . .” Id. at 1237. “A variance,” we
explained, “can be imposed without compliance with the rigorous requirements
for departures.” Id. (quoting Gantt, 679 F.3d at 1247).
Rather than looking to compliance with the Guidelines, we looked instead
to whether the district court properly weighed all the § 3553(a) factors. We
concluded it had, ultimately agreeing with the district court that the crime
represented “aberrational” behavior that was partially attributable to mental health
issues for which the defendant was receiving treatment. Id. at 1240. Although
we would likely not have “reached the same sentencing decision in the first
instance,” we concluded the court did not abuse its substantial discretion in
choosing the sentence. Id. at 1241.
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In short, then, the adequacy of the court’s consideration and explanation of
the § 3553(a) factors is the keystone of our analysis. We look to the record to
determine whether the district court satisfactorily engaged and examined the
factors in a holistic fashion. But the court need not rely on every single
factor—no algorithm exists that instructs the district judge how to combine the
factors or what weight to put on each one.
The distinction between procedural and substantive reasonableness is a
significant but not necessarily sharp one, especially as it concerns a sentencing
court’s explanation for the sentence. That explanation serves both procedural and
substantive functions.
First, just as a court’s consideration of the § 3553(a) factors is a procedural
requirement, so is its explanation of how those factors apply. In fact, the
explanation is the procedural step that shows the factors have been considered. In
Gall, the Supreme Court said “failing to adequately explain the chosen sentence”
can be “a significant procedural error.” 552 U.S. at 51. In this appeal, the
government does not challenge the sentences’ procedural reasonableness. Aple.
Reply Br. at 3 (“To be clear, the United States is not arguing that the district court
failed to adequately explain its reasons—i.e., that it made procedural errors
. . . .”).
Second, the content of the district court’s explanation is relevant to whether
the length of the sentence is substantively reasonable. To determine substantive
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reasonableness, Gall instructs that we “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” 552 U.S. at 51. Part of that deference extends to the court’s analysis
of the § 3553(a) factors. See United States v. Smart, 518 F.3d 800, 808 (10th Cir.
2008) (holding appellate courts must grant deference “not only to a district
court’s factual findings but also to its determinations of the weight to be afforded
to such findings.”). A sentence is more likely to be within the bounds of
reasonable choice when the court has provided a cogent and reasonable
explanation for it.
This dual purpose of the court’s sentencing explanation is one reason the
line between procedural and substantive reasonableness is blurred. See United
States v. Reyes-Santiago, 804 F.3d 453, 468 n.19 (1st Cir. 2015) (“The line
between procedural and substantive sentencing issues is often blurred. . . . [and]
‘the lack of an adequate explanation can be characterized as either a procedural
error or a challenge to the substantive reasonableness of the sentence.’”) (quoting
United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015) (internal
quotation marks and brackets omitted)); see also United States v. Liou, 491 F.3d
334, 337 (6th Cir. 2007) (“[T]he border between factors properly considered
‘substantive’ and those properly considered ‘procedural’ is blurry if not porous
. . . .”).
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Below, we consider the explanation given for the challenged sentences to
assist us in determining whether the district court abused its discretion in
weighing the § 3553(a) factors—and thus whether the sentences are substantively
reasonable. See United States v. Rentz, 696 F. App’x 348, 352 (10th Cir. 2017)
(unpublished) (“[B]oth the record and the district court’s stated reasoning provide
us an adequate basis to assess the substantive reasonableness of the sentence
imposed.”). The dissent argues that in considering the district court’s
explanation, we rely “on a rationale that instead fits the inquiry for procedural
reasonableness.” Dissent at 7. But while courts should avoid unduly blurring the
line between substantive and procedural reasonableness, there is nevertheless
some unavoidable overlap. See United States v. Jeter, 721 F.3d 746, 756 (6th Cir.
2013) (“[C]laims of substantive and procedural reasonableness overlap in that
they both concern whether the district court properly considered certain § 3553(a)
factors.”).
With these considerations in mind, we turn to the district court’s sentencing
analysis in this case.
1. Barnes
The district court properly addressed each of the § 3553(a) factors in
sentencing Barnes.
First, the court based its sentence on the trial record itself, witness
testimony at the resentencing hearing, and statements and other submissions from
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members of Barnes’s family, co-workers, and friends. The court then walked
through the sentencing factors contained in § 3553(a), observing that despite the
stressful environment where Barnes worked, “there [was] no justification for the
actions which resulted in [his] conviction.” App. 609. Even so, the district court
considered Barnes to be a poor candidate for a guidelines sentence. He was age
46 at sentencing, and married with three children. In addition, he was raising four
nieces and nephews he took custody of after his sister died (the father, who is in
the country illegally, was unable to care for them). At the time of resentencing,
his natural children were aged 14, 20, and 21, and the other children were 11, 15,
16, and 17. The record reflects that his sister’s children were performing better in
school and socially since Barnes and his wife took custody.
Barnes was also fighting tongue cancer and had other health problems
which required “14 medications daily.” Id. at 610–611. Prior to sentencing,
Barnes had led “a stable lifestyle and appear[ed] active in his community.” Id.
The court concluded Barnes’s risk of recidivism would be “low to nonexistent and
he posed no apparent threat to the community.” Id. at 611. Barnes had not been
convicted of previous crimes, and the district court considered its two-year prison
sentence “significant time”—especially coupled with supervisory release.
Considering the seriousness of the crime and deterrence, the court
adequately reviewed the significant impact the sentence would have on Barnes’s
career and family as well as on similarly situated officers. Overall, the court
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determined “the sentence imposed will provide specific and general deterrence to
any future anti-social behavior of this defendant and others, especially those in
law enforcement.” Id. at 611–612. The court reached this conclusion after a
thorough discussion of the defendant’s specific situation—he would no longer be
able to work in law enforcement, and, we note, would face all the ancillary
consequences attending a felony conviction. The court further reasoned the
sentence would properly deter similarly-situated “Law Enforcement Officers or
Corrections Officers who learn of the facts surrounding this case and may be
tempted to engage in similar conduct.” Id. at 612.
In sum, the district court thoroughly supported its variance with an analysis
of the § 3553(a) factors. The court had “taken notice of the advisory guideline
range” and could not “find that a sentence within that advisory range is necessary
to comport with the factors identified in United States Code Section 3553(a) and
to achieve the overall goal of sentencing.” Id. After considering the guidelines
factors as a whole, the court decided to vary downward from the guidelines range
to comport with the broader goals of sentencing. In view of its careful
discussion, we find that the court did not abuse its discretion in considering and
justifying a variance based on the § 3553(a) factors.
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2. Brown
The district court also properly addressed each of the § 3553(a) factors for
Brown.
First, the court considered the trial testimony concerning Brown’s
culpability and took additional testimony at the sentencing hearing. The court
then noted that Brown was not the ringleader of the assaults. In fact, “the
majority of witnesses [at trial] testified that they did not observe Brown assault
any inmates, nor did they hear him give orders to any other staff instructing them
to assault or mistreat the inmates.” Id. at 652. Reviewing Brown’s personal
characteristics, the court observed that Brown has no criminal record, “maintains
a stable lifestyle with no documented substance abuse or other anti-social
behavior,” has “five minor children,” and exhibits a “low to nonexistent” risk of
recidivism. Id. The court thus explicitly detailed why Brown’s personal
attributes and dependent-heavy family structure might mitigate the need for a
standard guidelines sentence.
Recognizing the seriousness of the crime and the need for deterrence, the
court noted that it was imposing “a significant portion of imprisonment followed
by a period of Supervised Release”; Brown would no longer be able to work in
law enforcement; and his family had already been and “[would] continue to be
significantly impacted.” Id. at 652–653. The court found “[n]othing in the
defendant’s background . . . suggest[ing] that a sentence within the advisory
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guideline range is needed to deter him from any further law violations or
misconduct.” Id. at 653. The court was also confident the selected sentence
would deter Brown from future crime and other officers from “similar
misconduct.” Id.
In discussing the remaining § 3553(a) factors and “the sentencing options
available for this defendant,” the court could not “find that a sentence within that
advisory range is necessary to comport with the factors identified in [the
guidelines] and to achieve the overall goal of sentencing.” Id. at 653–654. The
court thought the combination of prison time and supervised release, along with
the mitigating circumstances in Brown’s personal history, warranted a sentence of
12 months’ incarceration and three years of supervised release.
As in its analysis of Barnes’s sentence, then, the court holistically
considered the § 3553(a) factors and supported its analysis with facts specific to
Brown’s situation. The court did not rely on impermissible factors or rely
exclusively on one factor. We thus find the court did not abuse its discretion in
justifying its variance in Brown’s sentence as well.
B. The Government’s Arguments
The government points to several cases where we have found low sentences
to be substantively unreasonable: United States v. Friedman, 554 F.3d 1301 (10th
Cir. 2009), United States v. Walker, 844 F.3d 1253 (10th Cir. 2017), and United
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States v. Morgan, 635 F. App’x 423 (10th Cir. 2015) (unpublished). The
government argues these cases control the outcome of this case. We are not
persuaded these cases compel reversal of the sentences here.
In Friedman, the defendant pleaded guilty to bank robbery, and his
guidelines range was 151 to 188 months. 554 F.3d at 1302, 1308. The district
court varied downward to a sentence of 57 months. We concluded the sentence
was substantively unreasonable because “(1) the defendant had an extensive
history of recidivism and lacked remorse and (2) the 57-month sentence created
unwarranted sentence disparities.” Walker, 844 F.3d at 1259 (summarizing
Friedman, 554 F.3d at 1307–14). Friedman admitted to committing eight bank
robberies, and at least two of the “robberies involved weapons or the threat of
weapons.” Friedman, 554 F.3d at 1309. Friedman himself acknowledged he had
“only been able to remain free of prison for twenty months out of the
twenty-seven years of his adult life.” Id. Nothing in Friedman’s record of
consistent reversion to crime suggested that he would not again return to a life of
crime.
Yet in the face of these strong indications of a propensity to recidivate, the
district court provided no specific facts to support its conclusion that the
defendant would not be prone to recidivism. Instead, the judge cited only “a
feeling about [him] that [he] can make it and [he’s] going to.” Friedman, 554
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F.3d at 1307. Because the court did not cite to any specific facts supporting its
conclusion, we concluded the sentence was arbitrary and capricious.
Here, in contrast, the district court set forth concrete reasons why it would
vary below the Guidelines. Since the court rooted its decision in specific,
permissible facts particular to each defendant, Friedman does not compel a
contrary conclusion.
Similarly, Walker considered a sentence for two counts of bank robbery
that had been reduced from a range of 151–188 months to 33 days of time-served
in pretrial detention. We found the sentence substantively unreasonable because
the district court failed to weigh the § 3553(a) factors holistically, instead relying
“almost exclusively” on one factor—Walker’s “newfound sobriety”—to justify
the sentence. Walker, 844 F.3d at 1259.
That is far from the case before us now. Here, the court carefully
addressed each factor and concluded its assessment of all of the factors counseled
a downward variance for each defendant. While it is doubtful we would have
weighed or applied the factors the same way in this case given the seriousness of
the crimes, on balance, the court did not impose sentences outside permissible
choice. 1
1
The government and the dissent both cite to United States v. Koon, 518
U.S. 81, 110 (1996), for the proposition that the district court should not consider
the permanent loss of law-enforcement careers when varying from the Guidelines.
But Koon involved a downward departure rather than a downward variance. This
(continued...)
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Finally, in Morgan, we reversed a downward variance from a range of
41–51 months to five years of probation for a politician convicted of bribery.
“[T]he court’s decision to vary downward to probation was based on the
following: (1) seriousness of the offense, (2) the letters of support, and (3)
deterrence.” 635 F. App’x at 448. We found the district court “paid only lip
service to the seriousness of the offense” because it explained its “fair sentence”
could be “reached by first calculating the guideline sentence based on the crime
of conviction (Count 63) and then dividing it by 63, the total number of counts,
including the mistried and acquitted counts . . . .” Id. By proffering this
rationalization, the district court mitigated the seriousness of the convicted
offense with the mistried and acquitted counts, which should not have made the
convicted count any less blameworthy. This sentencing methodology was
arbitrary and considered impermissible factors, making the sentencing
substantively unreasonable. The court similarly placed undue emphasis on
supporting letters while overly discounting the need for deterrence.
1
(...continued)
distinction is important because Koon predated Booker v. United States, 543 U.S.
220 (2005), which made the sentencing guidelines advisory rather than mandatory
and “allow[ed] district courts to exercise discretion to vary from the guideline
range if a variance would be appropriate under the § 3553(a) factors.” United
States v. Beltran, 571 F.3d 1013, 1019 (10th Cir. 2009). A downward departure
must conform to the Guidelines and give a specific basis for why the Guidelines
do not properly account for the defendant’s situation. A variance, on the other
hand, is based entirely on the sentencing court’s discretionary authority as long as
the court justifies its sentence based on the § 3553(a) factors.
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In sum, we found the court’s sentence substantively unreasonable in
Morgan because the court considered impermissible factors and failed to consider
an important factor: general deterrence. In the present case, however, the district
court did not rely on impermissible factors, nor did it fail to consider any
important factors.
Thus, none of the cases the government cites calls into question our
conclusion here.
The government further suggests the district court could not justify a
variance by relying on facts that the Guidelines already took into account. But
that suggestion is mistaken. “[U]nder current precedent ‘[d]istrict courts have
broad discretion to consider particular facts in fashioning a sentence under 18
U.S.C. § 3553(a), even when those facts are already accounted for in the advisory
guidelines range.’” Lente, 759 F.3d at 1169 (quoting United States v. Yanez-
Rodriguez, 555 F.3d 931, 946 (10th Cir. 2009)).
We make one final note on the dissent’s thoughtful but overly complex
approach in reaching a contrary conclusion. The dissent maps sentences for
convictions under §§ 241 and 242 onto a histogram in order to show that the
sentences for Barnes and Brown were too low for the otherwise prototypical
nature of their offenses. But there is no “mathematical formula that uses the
percentage of a departure as the standard for determining the strength of the
justifications required for a specific sentence.” Gall, 552 U.S. at 47. “Our
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sentencing scheme ‘seeks to eliminate not all sentencing disparities, but only
unwarranted disparities.’” Lente, 759 F.3d at 1169 (quoting United States v.
Contreras, 180 F.3d 1204, 1210 (10th Cir. 1999)). We are confident that district
courts can responsibly examine general sentencing trends for a particular crime
without losing sight of the individual characteristics of the defendants before it.
And in any event, the court here “reviewed its sentences in prior
deprivation of rights cases” and was “satisfied that the sentence” would “be
consistent and avoid unwarranted disparities.” App. 735. Even if the disparities
factor weighs in favor of a higher sentence, the district court considered it
alongside other factors and the facts of this case and did not abuse its discretion
in imposing the sentences it did.
III. Conclusion
Sentencing is both art and science, and it may be the hardest job our district
judges undertake. While we are confident we would have imposed higher
sentences based on the record in this case, we cannot say the district judge
exceeded the bounds of permissible choice. We rely on the discretionary
authority of our district courts as a powerful tool to ensure individualized
consideration of each defendant’s particular circumstances and characteristics.
After careful examination, we conclude that authority was not exceeded
here. The dissent thoughtfully considers the district court’s analysis of each of
the individual § 3553(a) factors and ultimately concludes that the sentences are
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too lenient. We have no substantial quarrel with any particular point in its
analysis, but our application of the standard of review leads us to uphold the
sentences on remand. We therefore AFFIRM.
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United States v. Barnes, No. 17-7016, and
United States v. Brown,No. 17-7017
BACHARACH, J., dissenting.
This appeal stems from crimes committed by Mr. Raymond Barnes
and Mr. Christopher Brown. Mr. Barnes was the Jail Superintendent for the
Muskogee County Jail; Mr. Brown was the Assistant Jail Superintendent.
Together, they abused prisoners and were convicted under 18 U.S.C. §§
241 and 242, which cover conspiracy to violate constitutional rights and
willful imposition of cruel and unusual punishment. In addition, Mr. Brown
was convicted of making a false statement to a federal agent. See 18 U.S.C.
§ 1001. The district court imposed prison sentences of 24 months for Mr.
Barnes and 12 months for Mr. Brown.
The government appeals, arguing that the sentences were
substantively unreasonable because they were too light. The majority
rejects this argument on the ground that the district court adequately
explained its downward variances from the guideline range. I respectfully
dissent.
I. The Abuses
The government’s evidence of abuse included so-called “Meet and
Greets,” other forms of excessive force, and intimidation against
subordinates to conceal what was taking place.
A. Meet and Greets
The abuses often began when prisoners arrived at the jail. For new
arrivals expected to be difficult, Mr. Barnes and Mr. Brown arranged “meet
and greets.” The “greetings” would include slamming shackled prisoners to
the ground after they exited the prison transport van.
Mr. Jace Rice was an inmate who received this “greeting.” Before he
arrived, Mr. Barnes had told two jailers that “[w]hen [Mr. Rice] comes out
of the van . . . the first thing that touched the ground should be his head.”
Appellants’ App’x at 302. With this instruction, a jailer pulled Mr. Rice
out of the van and threw him onto his head. Officers piled on top of Mr.
Rice to put on new restraints. He was then carried by his feet into the jail
with his head on the ground. Mr. Barnes warned Mr. Rice that if he
misbehaved, he could expect the same treatment again.
Another new inmate, Mr. Gary Torix, came to the Muskogee County
Jail with staples in his head from an earlier injury. In the presence of Mr.
Barnes, jailers took Mr. Torix from the van, slammed him to the ground,
and carried him face-down into a cell as he bled from his forehead. The
bleeding continued for over an hour.
Meet and greets were also conducted for Mr. Herbert Potts and Mr.
Riley Starr. Mr. Potts’s “greeter” was Mr. Brown. When Mr. Potts arrived,
he was pulled to the ground. Mr. Starr received a similar “greeting,” with
jailers carrying him inside and hitting his head against the jail door.
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B. Other Instances of Abuse
The abuse was not confined to the meet and greets. On one occasion,
Mr. Barnes was called to assist with an incident. When he arrived, he
approached an inmate (Mr. Jeremy Armstead) who had done nothing
wrong. Without asking any questions, Mr. Barnes attacked Mr. Armstead.
Mr. Armstead was restrained and forced to sit in a cell wearing a helmet
for almost two hours. The ordeal resulted in a shoulder injury.
Another inmate, Mr. Alton Murphy, was also abused. When he got
“mouthy,” Mr. Barnes snuck up from behind and put his arms through Mr.
Murphy’s arms and around Mr. Murphy’s head, applying a “full nelson.”
Id. at 309. Mr. Barnes and Mr. Murphy fell to the ground, and Mr. Brown
piled on top. Another guard pepper sprayed everyone in the pile.
C. The Cover-Up
Mr. Barnes and Mr. Brown not only orchestrated the abuses but also
engaged in a cover-up. The cover-up was exposed when former jailers
testified that they had feared retaliation for reporting inmate abuse. These
fears led some jailers to change incident reports, removing descriptions of
mistreatment. One jailer testified that her shift had been changed twice
after reporting abuses.
The cover-up continued when an FBI agent asked Mr. Brown about
the meet and greets. Mr. Brown responded that new inmates had been
“asked to . . . step out of the vehicle first” and then “asked to get on the
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ground.” Id. at 455. Mr. Brown added that if an inmate did not voluntarily
comply, the jailers “would gently place the inmate onto the ground.” Id.
II. Procedural History
This is the second appeal in this case. After the trial, Mr. Barnes and
Mr. Brown appealed their convictions and the government cross-appealed,
challenging Mr. Barnes’s twelve-month prison sentence and Mr. Brown’s
six-month prison sentence as procedurally and substantively unreasonable.
We affirmed the convictions and vacated the sentences as procedurally
unreasonable. United States v. Brown, 654 F. App’x 896, 900 (10th Cir.
2016) (unpublished). But we declined to reach the government’s argument
that the sentences were substantively unreasonable.
On remand, the district court resentenced Mr. Barnes and Mr. Brown,
doubling their sentences and correcting procedural errors committed at the
first sentencing. On appeal, the government again argues that the sentences
are substantively unreasonable.
III. Standard of Review
We review a district court’s sentencing determination for substantive
reasonableness. United States v. Caiba-Antele, 705 F.3d 1162, 1165 (10th
Cir. 2012). For this review, we consider whether the district court abused
its discretion by imposing a sentence that is unreasonably short. United
States v. Walker, 844 F.3d 1253, 1255 (10th Cir. 2017). We may reverse
only if the sentence “‘exceeded the bounds of permissible choice.’” United
4
States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United
States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)).
IV. Substantive Reasonableness of the Sentences
In addressing whether the sentences were substantially reasonable,
the parties discuss four of the statutory factors 1:
1. the need to avoid unwarranted sentence disparities;
2. the nature and circumstances of the offense and the history and
characteristics of the defendant;
3. the need for the sentences to reflect the seriousness of the
crimes, deter future criminal conduct, prevent the defendants
from committing more crimes, and provide rehabilitation; and
4. the sentencing guidelines.
18 U.S.C. § 3553(a)(1)–(2), (4), (6).
1
Three other statutory factors exist:
1. the sentences that are legally available,
2. the Sentencing Commission’s policy statements, and
3. the need for restitution.
18 U.S.C. § 3553(a)(3), (5), (7). But these factors were not discussed by
the parties, the district court, or the majority.
5
A. Difference Between Substantive and Procedural
Reasonableness
A party can challenge a sentence as procedurally or substantively
unreasonable. When addressing appellate arguments involving procedural
reasonableness, we consider whether the district court
 improperly calculated the guideline range,
 treated the guidelines as mandatory,
 failed to consider the statutory factors,
 based the sentence on erroneous facts, or
 failed to adequately explain the chosen sentence.
Gall v. United States, 552 U.S. 38, 51 (2007). In contrast, when addressing
substantive reasonableness, we consider whether the district court abused
its discretion in determining that the length of the sentence was reasonable
based on the statutory factors. See United States v. Sayad, 589 F.3d 1110,
1116 (10th Cir. 2009) (stating that substantive reasonableness “involves
‘whether the length of the sentence is reasonable given all the
circumstances of the case in light of the [statutory] factors’” (quoting
United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007))).
The government’s challenge to the sentences involves substantive
reasonableness, not procedural reasonableness. In light of the nature of this
challenge, we must do more than determine whether the district court
considered the appropriate factors. Consideration of the appropriate factors
6
would render the sentences procedurally reasonable, not substantively
reasonable. Because the government argues that the sentences are
substantively unreasonable, we must determine whether the district court
abused its discretion in concluding that the statutory factors had merited
the given sentences. See Kimbrough v. United States, 552 U.S. 85, 110–11
(2007); see also United States v. Sanchez-Leon, 764 F.3d 1248, 1268 n.15
(10th Cir. 2014) (stating that for substantive reasonableness, we consider
whether the district court imposed a sentence that fairly reflects the
statutory factors).
The majority affirms, reasoning that the district court’s “explanation
of the sentences [was] based on defendant-specific facts and
circumstances.” Majority Op. at 4. This reasoning conflates procedural and
substantive reasonableness. Compare Majority Op. at 8 (concluding that
Mr. Barnes’s sentence was substantively reasonable because the court had
“thoroughly supported its variance with an analysis of the [statutory]
factors”), with Majority Op. at 3 (stating that an earlier panel regarded the
initial sentences as procedurally unreasonable because the district court
had not “adequately explained the basis for the sentences imposed”). In
gauging whether the new sentences are substantively reasonable, we are
not considering the adequacy of the district court’s explanation. Instead,
we are considering the adequacy of the sentences themselves. See pp. 6–7,
above.
7
The majority blurs this distinction, identifying the analytical
“keystone” of substantive reasonableness as “the adequacy of the court’s
consideration and explanation of the [statutory] factors.” Majority Op. at 8.
In taking this approach, the majority relies on United States v. DeRusse,
859 F.3d 1232 (10th Cir. 2017). But in DeRusse, we did more than consider
whether the district court adequately explained the sentencing variance; we
also examined the reasonableness of the district court’s conclusion based
on its consideration of the statutory factors. 859 F.3d at 1237. Here the
majority omits that step, reviewing the sentences for substantive
reasonableness based on a rationale that instead fits the inquiry for
procedural reasonableness.
The majority points out that there is some unavoidable overlap
between procedural and substantive reasonableness. Majority Op. at 11.
According to the majority, this overlap calls for review of the district
court’s explanation when addressing both substantive and procedural
reasonableness. But the function of the district court’s explanation differs
when we consider substantive and procedural reasonableness. For
procedural reasonableness, we consider whether the district court
adequately explained its sentence using the statutory factors. See p. 6,
above. We go a step further for substantive reasonableness, considering the
reasonableness of the result. See pp. 6–7, above.
8
B. Extent of the Variance
In determining whether the sentences were substantively reasonable,
we must consider the district court’s explanation for the extent of the
variances. Gall v. United States, 552 U.S. 38, 51 (2007). Here the
guideline ranges were 70–87 months, and the district court varied
downward by roughly 66% (46 months) for Mr. Barnes and by roughly 83%
(58 months) for Mr. Brown.
In considering the justifications for these downward variances, I
recognize the institutional advantages of the district court, which had an
opportunity to observe the defendants. United States v. Walker, 844 F.3d
1253, 1255 (10th Cir. 2017). Nonetheless, we bear an obligation to assess
whether the sentences fell within the district court’s discretion. Id.
C. Minimizing Disparities Among Sentences Nationwide for
Violations of 18 U.S.C. §§ 241 and 242
Federal law calls for avoidance of unwarranted sentence disparities,
and “[t]he need to avoid [such] disparities is a critical sentencing factor.”
United States v. Lente, 647 F.3d 1021, 1039 (10th Cir. 2011); see 18
U.S.C. § 3553(a)(6). To apply this factor, we must consider sentences
imposed across the country for violations of §§ 241 and 242. These crimes
have generally been seen as severe crimes, meriting severe sentences. See
United States v. McQueen (Alexander), 727 F.3d 1144, 1160 (11th Cir.
2013) (“As best as we can tell, the federal courts have treated violations of
9
§ 241 by police or corrections officers as serious crimes meriting far
higher sentences than the sentences [of twelve months and one month].”).
The general practice is reflected in this diagram, which shows the
sentences for 20 other convictions for excessive force under 18 U.S.C.
§§ 241 and 242:
2
In each case, a correctional officer was convicted for using or failing to
stop excessive force against an inmate. None resulted in the inmate’s
death. Nineteen of the twenty other sentences were more severe than either
Mr. Barnes’s or Mr. Brown’s sentence.
In only one case—United States v. McQueen (Alexander)—was the
sentence as low as the one meted out to Mr. Barnes or Mr. Brown. Mr.
2
Sources for these sentences appear in the appendix. Sentences
marked with an asterisk include sentences for crimes other than a violation
of 18 U.S.C. § 241 or § 242. These crimes include Mr. Brown’s other crime
(making a false statement to a federal officer). 18 U.S.C. § 1001. The other
crimes included in the 20 other cases involved filing a false report,
perjury, falsification of records, witness tampering, and obstruction of
justice. 18 U.S.C. §§ 371, 1512, 1519, 1623.
10
McQueen faced a guideline range of 151–188 months’ imprisonment.
McQueen, 727 F.3d at 1150. A co-defendant’s trial had resulted in a
mistrial, and the co-defendant then pleaded guilty to a misdemeanor. Id. at
1149. The district court expressed concern for the disparity between Mr.
McQueen’s sentence and his co-defendant’s maximum sentence of 12
months, leading the court to sentence Mr. McQueen to 12 months’
imprisonment. Id. at 1150.
The government appealed, and the Eleventh Circuit held that Mr.
McQueen’s sentence was substantively unreasonable, calling it “wholly
insufficient to achieve the purposes of sentencing.” Id. at 1157. On
remand, the district court continued to express deep concern about the
disparity between Mr. McQueen’s guideline range and the co-defendant’s
mandatory maximum sentence of 12 months. See Resentencing Hearing Tr.
at 30, United States v. McQueen (Alexander), No. 11-cr-20393-CMA (S.D.
Fla. Oct. 30, 2013) (Doc. No. 318) (describing the disparity between the
co-defendant’s short sentence and Mr. McQueen’s guideline range as “hard
to accept”). The district court resentenced Mr. McQueen to time served,
and the government did not appeal again. In light of the unique situation
there, McQueen does not support the substantial downward variance for
Mr. Barnes or Mr. Brown.
According to Mr. Barnes, the government failed to notify the district
court of a sufficient number of other sentences to show a disparity. But in
11
district court, the government identified twelve other harsher sentences for
law-enforcement officers who had violated § 241 or § 242. The references
to twelve other sentences were enough to alert the district court to the
danger of unwarranted sentence disparities. 3
Mr. Barnes also contends that the government failed to identify the
details of the other cases. But delving into the details does not help Mr.
Barnes or Mr. Brown. Their convictions involved a pattern of assaults on
multiple inmates. Of all the cases identified in the diagram, the shortest
sentence for a conviction involving multiple assaults was United States v.
Tines, No. CR 93-20117-MI (W.D. Tenn. June 30, 1994) (Doc. No. 4). Mr.
Tines was sentenced to 63 months’ imprisonment—more than double Mr.
Barnes’s sentence and more than five times Mr. Brown’s sentence. Id.
The majority implies that our comparison to similarly situated
defendants is unnecessary, stating that the district court considered the
disparities. But if the district court had considered nationwide sentencing
disparities, this consideration would have related to procedural
reasonableness, not substantive reasonableness. See Gall v. United States,
3
Mr. Barnes contends that we should decline to consider any case
examples newly presented on appeal. I disagree. The government presented
the issue to the district court, citing twelve case examples. The government
did not forfeit the issue by omitting additional case examples newly
presented on appeal.
12
552 U.S. 38, 53–56 (2007) (stating that whether a district court considered
unwarranted disparities is an issue of procedural reasonableness).
And in fact, the district court didn’t consider the far heavier
sentences imposed in other similar cases. The court instead explained that
it had “reviewed its prior sentences in deprivation of rights cases.”
Appellants’ App’x at 735 (Brown), 739 (Barnes) (emphasis added). In light
of this explanation, we have no reason to assume that the district court
considered the evidence that a one-year or two-year sentence would create
unwarranted sentence disparities. See United States v. Lente, 647 F.3d
1021, 1035 (10th Cir. 2011) (holding that even when the district court
stated that it had considered all of the statutory factors, we cannot presume
consideration of a party’s sentencing-disparity argument under 18 U.S.C.
§ 3553(a)(6)).
The district court’s focus on its own prior sentences led the court
astray, and no one has cited a single sentence under 18 U.S.C. § 241 or
§ 242 that was as short as 24 months’ imprisonment. I have found only one
excessive-force case in which a sentence under § 241 or § 242 was as short
as the sentences given to Mr. Barnes or Mr. Brown. And in that case, the
circuit court of appeals had deemed the sentence substantively
unreasonable. United States v. McQueen (Alexander), 727 F.3d 1144, 1157
(11th Cir. 2013); see p. 11, above. Against the backdrop of this empirical
evidence, the district court’s consideration of its own prior sentences does
13
not reasonably support the uniquely light sentences given to Mr. Barnes
and Mr. Brown.
* * *
The substantial downward variances for Mr. Barnes and Mr. Brown
created unwarranted disparities with the sentences for other offenders
convicted of similar crimes.
D. The Nature and Circumstances of the Offenses
When determining the sentences, the district court pointed to the
“nature and circumstances” of the crimes, which is a pertinent factor. See
18 U.S.C. § 3553(a)(1). This factor could not reasonably support a
sentence as low as two years for Mr. Barnes or one year for Mr. Brown.
For this factor, the district court observed that there was no
justification for what Mr. Barnes and Mr. Brown had done. But the court
downplayed the severity of the offenses on the ground that “a show of
strength and control may have served a purpose in the control of disorderly
inmates and the overall safety of the jail staff.” Appellants’ App’x at 609.
In downplaying the severity of the offenses, the court described the jail as
a place “where tensions were noted to run high and the need for control
was paramount.” Id. at 651. This description suggests that the district court
may have viewed the jail environment as a mitigating factor, but the
opposite is true because Mr. Barnes and Mr. Brown had abused their
powers in supervising the jail. See United States v. Wittig, 528 F.3d 1280,
14
1289 (10th Cir. 2008) (Hartz, J., joined by entire panel) (stating that “a
sentence is substantively unreasonable if the only reason that the length is
outside the range of what judges ordinarily impose” for defendants with
similar records convicted of similar conduct “is that the sentencing judge
has an idiosyncratic view of the seriousness of the offense”).
1. Seriousness of the Crimes
The sentence should ordinarily reflect the seriousness of the crime.
The legislative history of 18 U.S.C. § 3553 explains: “This purpose—
essentially the ‘just deserts’ concept—should be reflected clearly in all
sentences; it is another way of saying that the sentence should reflect the
gravity of the defendant’s conduct.” S. Rep. No. 98-225, at 75 (1983), as
reprinted in 1984 U.S.C.C.A.N. 3182, 3258.
The crimes committed by Mr. Barnes and Mr. Brown were
“particularly serious.” United States v. McQueen (Alexander), 727 F.3d
1144, 1157 (11th Cir. 2013); see also Koon v. United States, 518 U.S. 81,
110 (1996) (“Public officials convicted of violating [18 U.S.C.] § 242 have
done more than engage in serious criminal conduct; they have done so
under color of the law they have sworn to uphold.”). Thus, the “nature and
circumstances” of the crimes did not support a downward variance.
Indeed, the guideline ranges were stiffened because the offenses had
involved abuses committed under color of law against physically restrained
prisoners. For example, the sentencing guidelines contemplate a 6-level
15
increase to the base-offense level for any offense committed under color of
law. See U.S. Sentencing Guidelines Manual § 2H1.1(b)(1)(B). Thus,
commission of “a crime while acting under color of law will result in a
higher sentence . . . rather than a lower sentence.” United States v.
LaVallee, 439 F.3d 670, 708 (10th Cir. 2006). And there is a 2-level
upward adjustment for a crime against a physically restrained victim. U.S.
Sentencing Guidelines Manual § 3A1.3.
Mr. Barnes downplays the seriousness of unprovoked assaults on
helpless, handcuffed prisoners, insisting that they had been troublesome
before their transfer to the Muskogee County Jail. We rejected this view in
the prior appeal: “The only proffered justification for the force used
against these inmates was to discourage future repetition of their alleged
past bad behavior. Such punitive treatment does not serve a legitimate
penological purpose.” United States v. Brown, 654 F. App’x 896, 911 (10th
Cir.) (2016) (unpublished) (emphasis in original), cert. denied, 137 S. Ct.
237 (2016). Thus, we can infer “malicious, sadistic intent.” Id. (internal
quotations marks omitted).
The district court recognized that the sentences needed to reflect the
seriousness of the offenses. See 18 U.S.C. § 3553(a)(2)(A). But the district
court reasoned that the sentences were sufficient in part because neither
Mr. Barnes nor Mr. Brown could ever work again in law enforcement. This
16
reasoning failed to differentiate the circumstances between the two
defendants and others.
The Supreme Court considered a similar issue in Koon v. United
States, 518 U.S. 81 (1996). There the Supreme Court held that a district
court had abused its discretion when considering the inability to work in
law enforcement because of a conviction under 18 U.S.C. § 242. Koon, 518
U.S. at 110. The Court reasoned not only that public employees are
regularly fired for committing crimes but also that violators of § 242 have
committed a crime “under color of the law they have sworn to uphold. It is
to be expected that a government official would be subject to . . . career-
related consequences . . . after violating § 242 . . . .” Id. at 110–11.
Because the Sentencing Commission considered career loss when adopting
the guideline range for violations of § 242, the Supreme Court held that the
district court had erred in considering the loss of a law-enforcement career.
Id. at 111.
The majority suggests that Koon does not apply to variances
following United States v. Booker, 543 U.S. 220 (2005), which rendered
the guidelines advisory rather than mandatory. But even after Booker, we
have faulted district courts for “improperly relying on the collateral
consequences flowing from the prosecution and conviction.” United States
v. Morgan, 635 F. App’x 423, 450 (10th Cir. 2015) (unpublished); see also
United States v. Musgrave, 761 F.3d 602, 608–09 (6th Cir. 2014) (“[W]hen
17
a district court varies downward on the basis of the collateral consequences
of the defendant’s prosecution and conviction, the defendant’s sentence
will not reflect the seriousness of the offense.”). Career loss is a collateral
consequence that does not differentiate Mr. Barnes or Mr. Brown from any
other offender convicted under § 241 or § 242.
The defendants’ inability to return to law enforcement was vastly
outweighed by the seriousness of the crimes. The seriousness of the crimes
is reflected in the assaults themselves. But the crimes consist of more than
the sum of the assaults. The defendants cloaked these assaults in the power
of the state, abusing the rule of law that “they ha[d] sworn to uphold.”
Koon v. United States, 518 U.S. 81, 110 (1996).
In this respect, the case resembles United States v. Morgan, where
we held that a probationary sentence for corruption was substantively
unreasonable. 635 F. App’x 423, 451–52 (10th Cir. 2015) (unpublished).
Here too we have a crime against the “public trust in the fairness and
integrity of government.” Id. at 447. Though Mr. Barnes and Mr. Brown
were not elected officials and did not engage in misconduct for personal
financial gain, their constitutional violations harmed the “reputation of
honest and stalwart public servants.” Id.
Sentences for criminal violations of inmates’ civil rights must be
sufficiently serious to reflect the constitutional opprobrium cast on those
who sadistically inflict cruel, unprovoked assaults against inmates. The
18
sentences of 24 and 12 months’ imprisonment do not reflect the seriousness
of the crimes. Id. at 448 (characterizing a sentence as substantively
unreasonable when the district court had “paid only lip service to the
seriousness of the offense and . . . harm to the reputation of honest public
servants”).
2. Doubts About the Verdict Against Mr. Brown
Mr. Brown defends his twelve-month sentence in part based on his
lack of culpability. The district court reasoned that most witnesses had not
seen Mr. Brown participate in assaults or heard him direct other staff
members to assault prisoners. But the district court cannot base leniency
on skepticism about the verdict.
Though some witnesses didn’t see Mr. Brown participate in an
assault, other witnesses did. For example, a jailer (Ms. Ashley Mullen)
testified that Mr. Brown had pulled a handcuffed inmate (Mr. Herbert
Potts) onto the concrete “pretty much face first.” United States v. Brown,
654 F. App’x 896, 901 (10th Cir. 2016) (unpublished), cert. denied, 137 S.
Ct. 237 (2016). 4 And others testified that they had seen Mr. Brown assault
Mr. Alton Murphy. Id. at 909. In the face of these accounts, the district
court could not reasonably lighten Mr. Brown’s sentence based on
4
The district court instructed the jury to disregard the jailer’s
testimony about a separate incident, but not this one.
19
disagreement with the verdict. See United States v. Slaton, 801 F.3d 1308,
1320 (11th Cir. 2015) (holding that the district court erred in basing the
sentence on a finding that conflicted with the verdict); United States v.
Bertling, 611 F.3d 477, 480–82 (8th Cir. 2010) (stating that district courts
should not “‘rely on a defendant’s innocence when the defendant has
already been found guilty beyond a reasonable doubt’” (quoting United
States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008))); United States v. Curry,
461 F.3d 452, 461 (4th Cir. 2006) (holding that the district court erred in
basing the sentence on a conclusion that conflicted with the verdict). 5
Though the district court seemed to question whether Mr. Brown had
actually assaulted prisoners, the court acknowledged Mr. Brown’s role in
orchestrating the abuses. Mr. Brown was the jail’s second in command;
thus, the court applied an enhancement for a supervisory role, adding that
Mr. Brown had “helped organize the meet and greets.” Appellants’ App’x
at 221–22. This supervisory role could support a conviction under either
§ 241 or § 242 even if Mr. Brown had not personally participated in the
assaults. See United States v. Brown, 654 F. App’x 896, 908 (10th Cir.
2016) (unpublished) (“Physical assault is not a necessary element of either
5
Mr. Brown previously appealed his conviction in part on the ground
that “no credible witness [had] testified that he physically assaulted an
inmate or instructed anyone else to do so.” United States v. Brown, 654 F.
App’x 896, 908 (10th Cir. 2016) (unpublished), cert. denied, 137 S. Ct.
237 (2016). We disagreed, noting that three witnesses had testified about
assaults committed by Mr. Brown. Id. at 908–09.
20
[§ 241 or § 242].”), cert. denied, 137 S. Ct. 237 (2016). Consequently, the
district court could not reasonably justify the downward variances for Mr.
Brown based on skepticism about the verdict.
3. Pepper-Spray Incident
The district court found that Mr. Brown’s culpability was diminished
by the fact that he had been pepper sprayed. The court did not explain its
logic, and the defendants do not defend it. Mr. Barnes jumped a helpless
prisoner and pummeled him. Mr. Brown approached, seeing his boss (Mr.
Barnes) committing an assault. Rather than try to stop Mr. Barnes, Mr.
Brown burst into the fray to help his boss beat up a defenseless prisoner.
Another guard joined in and pepper sprayed all three men. I fail to see
how Mr. Brown’s exposure to pepper spray diminished the seriousness of
his crimes. 6
E. The Defendants’ History and Characteristics
The district court credited both defendants with characteristics
supporting leniency, such as the absence of a prior criminal record, the
presence of significant family responsibilities, and the existence of
significant medical problems for Mr. Barnes. These characteristics do not
support the substantial downward variances.
6
The district court also commented on the fact that Mr. Barnes had
been pepper sprayed. But the court did not explain the relevance of this
fact during Mr. Barnes’s sentencing.
21
1. Absence of a Prior Criminal Record
The sentencing guidelines incorporate a defendant’s criminal history
in the assessment of an offense level. See United States v. Rose, 435 F.3d
735, 738 (7th Cir. 2006) (stating that the defendant’s “lack of a prior
criminal record was . . . accounted for in his Criminal History category”).
Mr. Barnes and Mr. Brown had a criminal-history category of I based on
their lack of prior criminal records. Though the criminal history is already
taken into account, the court can consider the absence of a prior criminal
record as a basis to vary downward. United States v. Huckins, 529 F.3d
1312, 1318 (10th Cir. 2008); see Majority Op. at 19. But here, the marginal
relevance of the defendants’ clean criminal records did not justify the
substantial downward variances.
We addressed a similar issue in United States v. Hildreth, 485 F.3d
1120 (10th Cir. 2007). There the guideline range was 27–33 months’
imprisonment, and the district court varied downward to 3 years’
probation. Hildreth, 485 F.3d at 1123. The district court relied in part on
the low risk of public danger, pointing to the absence of past conduct that
might be considered aggressive, violent, or non-compliant. Id. at 1128. We
rejected this approach and regarded the sentence as unreasonably low. Id.
at 1129–30. We reasoned that the guidelines had already accounted for the
absence of an aggressive or violent history. Id. at 1129.
22
Under Hildreth, the defendants’ lack of a prior criminal record does
not support the substantial downward variances.
2. Family Responsibilities
The district court relied heavily on the defendants’ family
responsibilities when deciding to vary downward. In pointing to these
responsibilities, the district court noted how many children each defendant
had. These family responsibilities might support some downward variance,
but not one as sizable as the variance given to Mr. Barnes or Mr. Brown.
In calling for the creation of sentencing guidelines, Congress
observed that it is generally inappropriate to consider the defendant’s
family responsibilities. 28 U.S.C. § 994(e). Based on this observation,
“[t]he Sentencing Guidelines state that a defendant’s ‘[f]amily ties and
responsibilities . . . are not ordinarily relevant in determining whether a
sentence should be outside the applicable guideline range.’” United States
v. McClatchey, 316 F.3d 1122, 1130 (10th Cir. 2003) (second alteration
and omission in original) (quoting U.S. Sentencing Guidelines Manual
§ 5H1.6).
In some circumstances, a defendant’s family responsibilities may
bear on the sentencing decision. See United States v. Jarvi, 537 F.3d 1256,
1263 (10th Cir. 2008) (stating that district courts can consider individual
characteristics even when disfavored under the guidelines). An example
took place in United States v. Muñoz-Nava, 524 F.3d 1137 (10th Cir.
23
2008). Muñoz-Nava involved a downward variance from a 46–57-month
guideline range to 12 months in prison and 12 months in home
confinement. 524 F.3d at 1142. In varying downward, the district court
relied in part on the defendant’s role as the “primary caretaker and sole
supporter of his eight-year-old son” and as the “sole supporter of . . .
ailing and elderly parents.” Id. at 1142–43. In addition, the district court
ordered 12 months of home confinement to allow the defendant to care for
his family during the course of his punishment. Id. Two facts distinguish
this case from Muñoz-Nava.
First, the disparity between the sentences and the guideline ranges is
greater here than it was in Muñoz-Nava. Compare Muñoz-Nava, 524 F.3d at
1142 (stating that the guideline range was 46–57 months’ imprisonment
and that the sentence was 12 months’ imprisonment and 12 months’ home
confinement), with Appellants’ App’x at 683, 717 (stating that the
guideline range was 70–87 months for Mr. Barnes and Mr. Brown).
Second, the defendant in Muñoz-Nava was the primary caretaker for
his child and the only person capable of supporting his son and elderly
parents. In our case, however, the district court did not regard either Mr.
Barnes or Mr. Brown as the only parent able to care for the children.
Indeed, Mr. Barnes’s wife provided most of the financial support for the
family even though she suffered from fibromyalgia. Similarly, Mr. Brown’s
wife worked two jobs, providing financial support for the family.
24
Muñoz-Nava does not support the substantial downward variances
granted to Mr. Barnes and Mr. Brown. Their incarcerations will
undoubtedly burden their respective families, but these burdens are “‘to be
expected when a family member engages in criminal activity that results in
a period of incarceration.’” United States v. Rodriguez-Velarde, 127 F.3d
966, 968 (10th Cir. 1997) (quoting United States v. Canoy, 38 F.3d 893,
907 (7th Cir. 1994)). In my view, the defendants’ family circumstances are
not so extraordinary that they could reasonably justify a 12-month or 24-
month sentence in light of the seriousness of the crimes and the need to
avoid unwarranted sentencing disparities. See United States v. Dautovic,
763 F.3d 927, 935 (8th Cir. 2014) (holding that a 20-month sentence under
§ 242 was unreasonably light though the defendant “was a first time
offender who had done good things for his community and family”).
3. Mr. Barnes’s Health
The district court also acknowledged Mr. Barnes’s health problems.
But these problems do not reasonably support the substantial downward
variance for Mr. Barnes.
A defendant’s physical condition can be considered at sentencing.
United States v. White, 506 F.3d 635, 644 (8th Cir. 2007). But
consideration of a defendant’s physical condition is discouraged unless it
is extraordinary. United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir.
2010). “Discouraged factors . . . are those ‘not ordinarily relevant to the
25
determination of whether a sentence should be outside the applicable
guideline range.’” Koon v. United States, 518 U.S. 81, 95 (1996) (quoting
U.S. Sentencing Guidelines Manual § 5H intro. cmt.).
The district court mentioned Mr. Barnes’s physical condition: “He
suffers from significant health problems and receives ongoing treatment
for several different ailments, including most recently tongue cancer and
he takes up to 14 medications daily.” Appellants’ App’x at 610–11. But the
court did not characterize Mr. Barnes’s medical problems as extraordinary
or suggest that they would justify the substantial downward variance.
These medical problems, coupled with Mr. Barnes’s family
responsibilities and lack of criminal history, do not justify the downward
variance from 70 to 24 months. See United States v. Borho, 485 F.3d 904,
907, 913 (6th Cir. 2007) (holding that a downward variance from 210
months to 72 months was substantively unreasonable notwithstanding the
defendant’s back injury and diabetes).
4. Conduct While on Release
The district court commented that Mr. Barnes and Mr. Brown had
conducted themselves in a “positive” way while on release. Appellants’
App’x at 611, 652. Notwithstanding these comments, the court did not
appear to rely on the defendants’ positive conduct while on release.
Ordinarily, a defendant’s lawful conduct while on release can bear on
the appropriate sentence. See Pepper v. United States, 562 U.S. 476, 490–
26
93 (2011) (holding that evidence of rehabilitation may be considered after
the initial sentence has been set aside on appeal). But here the defendants’
conduct while on release proved little. Their crimes took place only in
their capacities as superintendents for a county jail, and the two men had
lost their jobs before the charges were brought. As a result, the defendants’
laudable conduct on release sheds little light on the appropriate sentences.
See United States v. Smith, 860 F.3d 508, 519 (7th Cir. 2017) (noting that
progress while on release after conviction under § 242 was laudable, but
“[t]his relatively minor evidence of rehabilitation must be assessed in light
of . . . [an] appalling history” of beatings and “other abuses of power over
inmates”); see also United States v. Walker, 844 F.3d 1253, 1256–57 (10th
Cir. 2017) (concluding that a sentence was unreasonably short
notwithstanding the defendant’s positive conduct while on release prior to
the sentencing).
F. The Risk of Recidivism and Need for Deterrence
In deciding on the sentence, the district court must consider the risk
of recidivism and the need to deter the defendants and others. See United
States v. Steele, 603 F.3d 803, 809 n.5 (10th Cir. 2010) (recidivism);
United States v. Walker, 844 F.3d 1253, 1257 (10th Cir. 2017)
(deterrence). The district court reasonably concluded that lengthy
sentences were unnecessary to deter Mr. Barnes and Mr. Brown and that
27
they were unlikely to recidivate. But the court failed to adequately
consider the need to deter others. 7
The need to deter crimes by other individuals, known as general
deterrence, “‘is one of the key purposes of sentencing.’” Walker, 844 F.3d
at 1257 (quoting United States v. Medearis, 451 F.3d 918, 920 (8th Cir.
2006)). General deterrence is a particularly important factor when
assessing sentences varying below the guideline ranges. See id. at 1258.
General deterrence is also particularly important when we consider
crimes committed by prison officials under color of law. “Prison inmates
serve their sentences under the pervasive control of the corrections staff”
and, as a result, are “‘uniquely vulnerable’” to assaults from corrections
officers. United States v. McQueen (Alexander), 727 F.3d 1144, 1158 (11th
Cir. 2013) (quoting Maryland v. Shatzer, 559 U.S. 98, 127 (2010) (Stevens,
J., concurring)). These assaults often “go undetected and unpunished.” Id.
The difficulty of detection undermines general deterrence, which “comes
from a probability of conviction and significant consequences.” United
States v. Morgan, 635 F. App’x 423, 450 (10th Cir. 2015) (unpublished).
Thus, the district court’s softening of the “consequences” for Mr. Barnes
7
The sentence should also reflect other sentencing objectives, such as
rehabilitation and incapacitation. United States v. Walker, 844 F.3d 1253,
1256 (10th Cir. 2017). But the district court did not suggest that the
downward variances would promote rehabilitation or incapacitation. Nor
do the parties discuss these objectives.
28
and Mr. Brown served to further diminish the deterrent value of the
sentences. See United States v. Jordan, 678 F. App’x 759, 771 (10th Cir.
2017) (unpublished).
The sentences here minimized the significant consequences
contemplated by the guidelines for serious crimes. And these crimes carry
a relatively low probability of detection and conviction, crystallizing the
importance of significant consequences to deter violations of § 241 or
§ 242. Against this backdrop, the light sentences for Mr. Barnes and Mr.
Brown did little to promote general deterrence. 8
V. Totality of the Sentencing Factors
Based on the totality of sentencing factors, I conclude that Mr.
Barnes’s 24-month sentence and Mr. Brown’s 12-month sentence were
unreasonably short. A jury found that both men had (1) conspired to
physically abuse inmates and (2) committed some of the abuses
themselves. Mr. Barnes and Mr. Brown concealed the abuses and coerced
8
The district court noted that the prison terms would be followed by
supervised release for three years. Mr. Barnes argues that the supervised-
release conditions would promote general deterrence for would-be
offenders valuing their privacy. In my view, the deterrent value of the
supervised-release terms would be marginal. “While it is true that someone
on supervised release is not entirely free, it is equally true that he is not
confined in a prison either.” United States v. Irey, 612 F.3d 1160, 1210
(11th Cir. 2010); see also United States v. Bistline, 665 F.3d 758, 766 (6th
Cir. 2012) (“[A] term of supervised release is simply not enough to reflect
the seriousness of the offense here.”).
29
subordinates to fabricate reports. The district court’s downward variances
of roughly 66% and 83% were unwarranted.
The majority reasons that the district court adequately analyzed the
statutory factors. But this analysis would not render the sentences
substantively reasonable. Indeed, the district court’s explanation does little
to justify the substantial variances. For example, the sentences were not
justified by the fact that the crimes had been committed against inmates.
Nor were the sentences justified by the defendants’ lack of a prior criminal
record, their lawful conduct while on release, their low risk of recidivism,
their family circumstances, or Mr. Barnes’s medical problems. Many of
these factors are discouraged as grounds for variances, and none of these
factors distinguish Mr. Barnes or Mr. Brown from other offenders
convicted under § 241 or § 242.
Nonetheless, the district court imposed sentences far below other
similarly situated offenders, creating unwarranted sentencing disparities,
doing little to deter future violations of inmates’ civil rights, and failing to
reflect the seriousness of the crimes. Thus, I regard the sentences as
substantively unreasonable and respectfully dissent.
30
Appendix
1. United States v. Wilson, No. 10CR390-AGF (E.D. Mo. Oct. 7, 2011)
(Doc. No. 120), aff’d, 686 F.3d 868 (8th Cir. 2012). The defendant
was a law-enforcement official with supervisory authority at a jail.
Sent. Tr. at 14, id. (Doc. No. 109). The conviction arose out of the
defendant’s role in assaulting four inmates. Id. at 19–20. The
guideline range was 97–121 months. Id. at 35.
2. United States v. McCoy, No. 08-CR-135-KKC-2 (E.D. Ky. Sept. 1,
2010) (Doc. No. 173), aff’d, 480 F. App’x 366 (6th Cir. 2012). The
defendant was a correctional officer who assaulted five inmates and
falsified reports to conceal the assaults. McCoy, 480 F. App’x at
367–68. The guidelines called for a prison sentence of 120 months,
the statutory maximum. Sent. Tr. at 29, United States v. McCoy, No.
08-CR-135-KKC-2 (E.D. Ky. Sept. 1, 2010) (Doc. No. 190).
3. United States v. McQueen (John), No. 08-CR-135-KKC-1 (E.D. Ky.
Sept. 1, 2010) (Doc. No. 172), aff’d sub nom. United States v.
McCoy, 480 F. App’x 366 (6th Cir. 2012). The defendant was a jail
officer who assaulted four detainees and falsified reports to conceal
the assaults. McCoy, 480 F. App’x at 367–68. The guidelines called
for a prison term of 120 months, the statutory maximum. Sent. Tr. at
13, United States v. McQueen (John), No. 08-CR-135-KKC-1 (E.D.
Ky. Sept. 1, 2010) (Doc. No. 172), aff’d sub nom. United States v.
McCoy, 480 F. App’x 366 (6th Cir. 2012).
4. United States v. McQueen (Alexander), No. 11-CR-20393-CMA (S.D.
Fla. Nov. 22, 2013) (Doc. No. 322), remanded from 727 F.3d 1144
(11th Cir. 2013). The defendant was a correctional officer who
sanctioned and participated in assaults on prisoners and filed a false
report to conceal the assaults. McQueen (Alexander), 727 F.3d at
1147–49. The guidelines called for a prison term of 151–188 months.
Id. at 1150. The district court sentenced the defendant to 12 months,
the circuit court of appeals vacated and remanded for resentencing,
and the district court resentenced the defendant to time served.
United States v. McQueen (Alexander), No. 11-CR-20393-CMA (S.D.
Fla. Nov. 22, 2013) (Doc. No. 322). The government did not appeal
the sentence a second time.
5. United States v. Gould, No. 03-CR-02274-JB (D.N.M. May 6, 2009)
(Doc. No. 440), aff’d, 672 F.3d 930 (10th Cir. 2012). The defendant
was a jail supervisor who assaulted two detainees and filed a false
incident report. Sent. Tr. at 12, 19, 93, id. (Doc. No. 463). The
guideline range was 120 months, the statutory maximum. Id. at 93.
6. United States v. Tines, No. CR-93-20117-MI (W.D. Tenn. June 30,
1994) (Doc. No. 4), aff’d, 70 F.3d 891 (6th Cir. 1995). The
conviction stemmed from a deputy sheriff’s role in assaulting six
juvenile detainees. Tines, 70 F.3d at 893–95. The existing public
record does not reflect the applicable guideline range.
7. United States v. Bunke, No. 08CR65 (N.D. Ohio Mar. 11, 2009) (Doc.
No. 148), aff’d, 412 F. App’x 760 (6th Cir. 2011). The conviction
under § 242 was based on a prison guard’s use of excessive force
against a prisoner. Gov’t’s Sent. Br. at 1, 3–7, id. (Doc. No. 136).
The district court noted that the defendant had not initiated the
confrontation. Sent. Tr. at 48, id. (Doc. No. 154). The guideline
range was 57–71 months. Id. at 32.
8. United States v. Bailey, No. 00-CR-10431 (D. Mass. Nov. 17, 2003)
(Doc. No. 421), aff’d 405 F.3d 102 (1st Cir. 2005). The conviction
stemmed from a prison guard’s role in using excessive force against
an inmate and submitting a false report afterward. Bailey, 405 F.3d at
106–07. The guideline range was 41–51 months. Id. at 112.
9. United States v. Verbickas, No. 00-CR-00481-WYD-5 (D. Colo. Nov.
21, 2003) (Doc. No. 1479), aff’d sub nom. United States v. LaVallee,
439 F.3d 670 (10th Cir. 2006). The defendant was a correctional
officer who assaulted an inmate at the captain’s direction and
falsified information about the incident. LaVallee, 439 F.3d at 678–
79. The guideline range was 27–33 months. Id. at 702.
10. United States v. LaVallee, No. 00-CR-00481-WYD-1 (D. Colo. Nov.
21, 203) (Doc. No. 1479), aff’d 439 F.3d 670 (10th Cir. 2006). The
defendant was a correctional officer who assaulted an inmate and
fabricated a report about the incident. LaVallee, 439 F.3d at 679. The
guideline range was 41–51 months. Id. at 703.
11. United States v. Schultz, No. 00-CR-00481-WYD-2 (D. Colo. Nov.
21, 2003) (Doc. No. 1479), aff’d sub nom. United States v. LaVallee,
439 F.3d 670 (10th Cir. 2006). The defendant was a correctional
officer who assaulted an inmate and fabricated a report about the
incident. LaVallee, 439 F.3d at 679. The guideline range was 41–51
months. Id. at 703.
2
12. United States v. Gonzales, No. 02-CR-00609-2 (S.D. Tex. Feb. 2,
2004) (Doc. No. 247), aff’d, 436 F.3d 560 (5th Cir. 2006). The
defendant was a federal deportation officer who was convicted of
(1) using unreasonable force against someone in his custody and
(2) acting with deliberate indifference to the individual’s medical
needs. Gonzales, 436 F.3d at 566. The guideline range was 63–78
months. Br. of Appellant at 51, Gonzales, 436 F.3d 560 (No. 04-
20131), 2004 WL 5489398.
13. United States v. Gomez, No. 02-CR-00609-3 (S.D. Tex. Feb. 2, 2004)
(Doc. No. 248), aff’d sub nom. United States v. Gonzales, 436 F.3d
560 (5th Cir. 2006). The defendant was a federal deportation officer
who was convicted of acting with deliberate indifference to a
detainee’s medical needs. Gonzales, 436 F.3d at 566. The existing
public record does not reflect the applicable guideline range.
14. United States v. Reyna, No. 02-CR-00609-1 (S.D. Tex. Feb. 2, 2004)
(Doc. No. 246), aff’d sub nom. United States v. Gonzales, 436 F.3d
560 (5th Cir. 2006). The defendant was a federal deportation officer
who was convicted of acting with deliberate indifference to a
detainee’s medical needs. Gonzales, 436 F.3d at 566. The sentence
was at the bottom of the guideline range, which is not specified in
the public record. Id. at 583.
15. United States v. Gilpatrick, No. 05-CR-00009 (M.D. Tenn. May 22,
2007) (Doc No. 211), aff’d, 548 F.3d 479 (6th Cir. 2008). The
defendant was a deputy sheriff who orchestrated the assault of a
detainee. Gilpatrick, 548 F.3d at 480–81. In addition to the 84-month
prison term, the sentence included 24 months in a “community
corrections facility.” Id. The guideline range was 108–135 months.
Id. at 482.
16. United States v. Miller, No. 04-CR-183-JMM (E.D. Ark. Feb. 27,
2006) (Doc. No. 82), aff’d, 477 F.3d 644 (8th Cir. 2007). The
defendant was a jail supervisor convicted under § 242 for assaulting
two inmates. Miller, 477 F.3d at 646–47. The existing public record
does not reflect the applicable guideline range.
17. United States v. Lopresti, No. 07-CR-00273-CBA (E.D.N.Y. June 26,
2008) (Doc. No. 427), aff’d, 340 F. App’x 30 (2d Cir. 2009). The
conviction under § 241 stemmed from a prison guard’s role in
beating a prisoner and orchestrating a cover-up. See Lopresti, 340 F.
App’x at 31–32. The guideline range was 51–63 months. Gov’t’s
3
Sent. Mem. at 10, No. 07-CR-00273-CBA (E.D.N.Y. June 26, 2008)
(Doc. No. 427), aff’d, 340 F. App’x 30 (2d Cir. 2009).
18. United States v. Fuller, No. 01-CR-00593-WJ-1 (D. N.M. Mar. 27,
2006) (Doc. No. 280), remanded from sub nom. United States v.
Serrata, 425 F.3d 886 (10th Cir. 2005). The defendant was convicted
of coordinating and participating in the assault of an inmate and
subsequent efforts to cover up the assault. Serrata, 425 F.3d at 889–
91. The guideline range was 78–97 months. Id. at 893.
19. United States v. Serrata, No. 01-CR-00593-WJ-4 (D. N.M. Mar. 27,
2006) (Doc. No. 281), remanded from 425 F.3d 886 (10th Cir. 2005).
The defendant was convicted of (1) failing to intervene to stop an
assault on an inmate and (2) participating in a subsequent cover up.
Serrata, 425 F.3d at 890–91. The guideline range was 51–63 months.
Id. at 892.
20. United States v. Broussard, No. CR-00036-1 (W.D. La. April 6,
2017) (Doc. No. 29), aff’d, 882 F.3d 104 (5th Cir. 2018). The
conviction under § 242 was based on the lieutenant’s failure to
intervene when a prisoner was beaten by officers. Broussard, 882
F.3d at 107. The guideline range was 63–78 months. Id. at 108.
4