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United States v. Warren

United States Court of Appeals, Tenth Circuit

December 16, 2013

UNITED STATES of America, Plaintiff-Appellee,
Steven Carmichael WARREN, Defendant-Appellant.

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[Copyrighted Material Omitted]

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Warren R. Williamson, Federal Public Defender, and Jill M. Wichlens, Assistant Federal Public Defender for the Office of the Federal Public Defender, Denver, CO, for Defendant-Appellant.

Barry R. Grissom, United States Attorney, and Tristram W. Hunt, Assistant United States Attorney for the Office of the United States Attorney, Kansas City, KS, for Plaintiff-Appellee.

Before BRISCOE, Chief Circuit Judge, O'BRIEN, Senior Circuit Judge, and PHILLIPS, Circuit Judge.

PHILLIPS, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument.

Appellant Steven Carmichael Warren has faced criminal charges for much of his life. In 1998, he committed an armed bank robbery in Missouri and served about twelve years in federal prison.[1] In 2011, only one year after his release, he robbed another bank— this one in Kansas. He pleaded guilty to this second armed bank robbery, and the district court imposed a sentence of 25 years, the statutory maximum.

Warren now challenges the procedural reasonableness of that sentence. He contends that he disputed the factual accuracy of statements in the presentence report and that the district court erred by increasing his sentence after assuming the truth of those disputed statements. However, because Warren did not raise this contention in the district court, we review only for plain error. We find no error because Warren did not " dispute" the presentence report so as to prevent the district court from assuming the truth of its contents. Moreover, the district court did not rely on the sections at issue and instead considered other factors under 18 U.S.C. § 3553 in determining that a higher sentence was appropriate. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

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In 2011, Warren robbed the National Bank of Kansas City in Leawood, Kansas. During the robbery, he pointed a loaded semi-automatic handgun at two teller operators and demanded money. They complied, and Warren fled the bank with $7,030. After a short pursuit, police apprehended Warren— along with the handgun and stolen funds.

A grand jury returned a three-count indictment, charging Warren with (1) carrying a firearm during and in relation to and in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), (2) armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), 18 U.S.C. § 924(a)(2) and (e). He pleaded guilty to the armed bank robbery count, and the government agreed to dismiss the other charges.[2]

Before Warren's sentencing, a probation officer prepared a presentence report (PSR). The PSR documented all of Warren's prior convictions, including an earlier federal felony conviction for armed bank robbery, a felony conviction for the sale of a PCP-laced cigarette, a felony conviction for child abuse, and over a dozen misdemeanor convictions— the majority of which involved violent conduct. As usual, the PSR also included a section entitled " Other Criminal Conduct." This section listed 22 of Warren's prior arrests and described from police reports the circumstances and conduct underlying the majority of those arrests— none of which had resulted in conviction. After determining that Warren qualified as a career offender, the PSR set forth an advisory guideline range of 188-235 months in prison.[3]

In response to the PSR, Warren objected to his classification as a career offender. In addition, he objected to the inclusion of paragraph 33 and paragraphs 56-76 of the PSR, all of which described his prior arrests not resulting in conviction.[4] Warren claimed that this conduct was old and open to " different conclusions," leaving one to " speculate about whether these incidents truly occurred." R. vol. 3, at 32-33.

Warren then filed a presentencing memorandum in which he did not object to the PSR calculations but asked the court to exercise leniency and refrain from applying the career-offender enhancement. Warren also repeated his objection to the inclusion of " other criminal conduct" in the PSR. This time, he appeared to challenge the relevance of this conduct on the ground that it was not sufficiently related to the offense of conviction. He again stated that the other criminal conduct in the PSR was old (from 1995 or before) and that " due to the wording ...

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