Denver, CO - Criminal defense lawyer represented defendant with a
being a felon in possession of a firearm charge.
On November 9, 2019, Mr. Wilson pleaded guilty to possession of a firearm
while a felon—a violation of 18 U.S.C. § 922(g)(1). At the time he entered his
plea, the law of this circuit required the government to prove three elements to
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secure his conviction under § 922(g)(1): (1) that Mr. Wilson had previously been
convicted of a felony; (2) that Mr. Wilson thereafter knowingly possessed a
firearm or ammunition; and (3) that the possession was in or affecting interstate
commerce. See, e.g., United States v. Silva, 889 F.3d 704, 711 (10th Cir. 2018)
(citing United States v. Benford, 875 F.3d 1007, 1015 (10th Cir. 2017)).
Consistent with then-extant law, Mr. Wilson admitted to the following
elements of § 922(g)(1) in his plea agreement:
First: the Defendant knowingly possessed a firearm.
Second: the Defendant was convicted of a felony, that is, a crime
punishable by imprisonment for a term exceeding one year,
before he possessed the firearm; and
Third: before the Defendant possessed the firearm, the firearm
had moved at some time from one state to another.
R., Vol. I, at 25 (Plea Agreement, filed Nov. 9, 2018). The parties agreed to
recommend to the court a three-point reduction in the offense level for acceptance
of responsibility, and they agreed to request from the court a sentence of
sixty-three months’ imprisonment. In addition, the plea agreement stated, “[t]he
parties agree that there is no dispute as to the material elements which establish a
factual basis of the offense of conviction.” Id. at 26.
At the change of plea hearing, Mr. Wilson detailed his mental-health and
medical history. He informed the court that he has been “diagnosed with PTSD
[i.e., Post Traumatic Stress Disorder], bipolar [disorder], [and] manic
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[depression].” Id., Vol. III, at 11 (Change of Plea Hr’g Tr., dated Nov. 9, 2018).
He also discussed a head injury that he suffered in 2009 and detailed the year in
which each mental-health-related diagnosis occurred.
1 The court then inquired
whether he had been taking psychiatric medications since being in custody and
about the presence of any ongoing mental-health and medical issues.
While acknowledging the persistence of his depression, Mr. Wilson denied
taking any psychiatric medications. He also explained he was “able to focus on
[the plea agreement] without some of those [depressive] symptoms . . . interfering
with [his] ability to understand.” Id. at 13. When the court inquired as to
whether Mr. Wilson’s counsel observed signs of “Mr. Wilson not being able to
understand the nature of the proceedings due to what . . . could be some type of
psychiatric issue,” Mr. Wilson’s counsel definitively responded in the negative,
stating: “Never at all.” Id. at 15.
Mr. Wilson entered his guilty plea, after testifying that he had read the
agreement, spoken with his counsel, and understood the charge. In accepting his
plea, the court found that Mr. Wilson is “alert, sober and competent . . . . that [he]
understands the charge that he has pled guilty to, including the nature,
circumstances, factual basis, and essential elements of the charge. . . . [and] that
1 Mr. Wilson’s diagnosis of PTSD was made in 2009 as a result of the
aforementioned head injury. The State Department of Corrections diagnosed him
as a manic depressant and having bipolar disorder in 2010.
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[he] has thoroughly discussed his Plea Agreement with his attorney.” Id. at 26.
And the court accepted Mr. Wilson’s plea and adjudged him guilty of the
§ 922(g)(1) offense.
With a total offense level of seventeen and a criminal history category of
VI, the probation officer calculated Mr. Wilson’s advisory U.S. Sentencing
Guidelines range to be fifty-one to sixty-three months’ imprisonment. Id., Vol. II,
at 71 (Sent’g Recommendation, filed Jan. 23, 2019). In the Presentence
Investigation Report (“PSR”),
the probation officer noted, “the defendant knows
he is not permitted to be in possession of firearms, but continues to possess them,
even while under supervision.” Id. at 73. The probation officer also noted that
Mr. Wilson had a prior state-court conviction for possession of a weapon by a
previous offender, and while on parole, he committed the instant offense. Id. In
that prior case, Mr. Wilson “admitted to [an] undercover officer that he did not
like meeting at a public place to sell firearms due to being a convicted felon.” Id.
Two addendums were included with the PSR prior to sentencing.
Particularly relevant to Mr. Wilson’s arguments on appeal is the second
addendum—a brief two-page document, filed shortly before sentencing, that
contained certain additional information regarding Mr. Wilson’s mental-health
In preparing the PSR, the probation officer used the 2018 edition of
the Guidelines to calculate the advisory Guidelines sentence. Mr. Wilson does
not challenge that decision on appeal. Therefore, we also refer to the 2018
edition, as needed, in resolving the sentencing issues in this appeal.
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history, including a “patient report” from Mr. Wilson’s admission to the
emergency room on May 5, 2010. Id., Vol. II, at 77 (Second Add. to PSR, filed
Jan. 30, 2019) (the “Second Addendum”). Apparently in connection with this
admission, Mr. Wilson was diagnosed as having a mood disorder (not otherwise
specified) and antisocial personality traits. The Second Addendum also
referenced records indicating that a physician at the halfway house where Mr.
Wilson resided had diagnosed him with bipolar disorder and PTSD. The Second
Addendum also mentioned Mr. Wilson had a Global Assessment of Function
(“GAF”) score of 45.
At sentencing, the district court noted that the parties did not object to
either the sentencing recommendation or the PSR. The district court mentioned
the recent filing of the Second Addendum and commented that it did not appear to
have “anything material in it.” Id., Vol. III, at 33 (Sent’g Hr’g Tr., dated Feb. 1,
2019). Defense counsel agreed. Id. (“[Defense Counsel: The Second Addendum]
doesn’t materially affect anything I am going to say to the Court . . . .”); id.
(“[Defense Counsel: The Second Addendum] looks like it was just a little more of
an elaboration of what was summarized before.”).
3 The Second Addendum notes that “[t]he GAF scale is used to rate
how serious a mental illness may be[; i]t measures how much a person’s
symptoms affect his or her day-to-day life on a scale of 0 to 100.” R., Vol. II at
77 n.1. According to the Second Addendum, “[a] score of 45 indicates serious
symptoms or any serious impairment [of] day-to-day functioning.” Id.
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The court then applied the statutory factors set forth in 18 U.S.C.
§ 3553(a). Without objection from the parties, the court adopted the factual
findings and Guidelines applications in the PSR as the court’s findings of fact
concerning sentencing. Id. at 42. The court then spoke about Mr. Wilson’s
background—describing his troubled upbringing, his “broken home,” and other
“tragedies” that he had suffered. Id. at 42–43. The court also noted his history of
head trauma and, in particular, the 2009 head injury. The court explained, “there
hasn’t been a great diagnosis of what potential effects [Mr. Wilson] might have
from some of these head injuries.” Id. at 43. As a result, the court “strongly
urge[d] Mr. Wilson, while he is in custody, to see whether he can get some
medical services related to figuring out whether there is any type of brain injury.”
Id. After discussing his criminal history, the court then sentenced Mr. Wilson to
sixty-three months’ imprisonment—consistent with Mr. Wilson’s request. Id. at
The district court entered judgment on February 5, 2019, and Mr. Wilson
filed a timely notice of appeal.
We now consider Mr. Wilson’s arguments on appeal. He first challenges
the constitutional validity of his guilty plea, asserting that he was not advised of
the true nature of the charge. In this regard, Mr. Wilson contends that the district
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court erred by accepting his guilty plea to the § 922(g)(1) charge because the
court failed to advise him of the requisite Rehaif element—that is, his knowledge
of his prohibited status, as a felon, at the time of the firearm possession.
Specifically, approximately four months after the district court entered its final
judgment, the Court in Rehaif held that to obtain a conviction “under 18 U.S.C. §
922(g) . . . the Government must prove both that the defendant knew he possessed
a firearm and that he knew he belonged to the relevant category of persons barred
from possessing a firearm.” Rehaif, 139 S. Ct. at 2200 (emphasis added).
And, second, Mr. Wilson appeals his sentence of sixty-three months’
imprisonment on the grounds that it is procedurally and substantively
unreasonable. He argues that the district court failed to properly consider his
mental-health issues in its application of the § 3553(a) factors and, relatedly, that
it did not adequately explain the basis for his sentence. In particular, Mr. Wilson
asserts that his mental illnesses were only “superficially recognized by the court”
and that “the [c]ourt failed to address his diagnosis of head trauma and bipolar
Indeed, in Rehaif’s wake, we have ruled that the Court’s decision
“changed the established law such that, now, to secure a conviction under 18
U.S.C. § 922(g)(1), the Government must also prove that the defendant knew ‘he
had the relevant status’ as a felon when he possessed the firearm.” United States
v. Trujillo, 960 F.3d 1196, 1201 (10th Cir. 2020) (quoting Rehaif, 139 S Ct. at
2194); see also United States v. Fisher, 796 F. App’x 504, 510 (10th Cir. 2019)
(unpublished) (acknowledging that the government must now prove defendant
“knew he had the relevant status” (quoting Rehaif, 139 S. Ct. at 2194)).
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illness and PTSD.” Aplt.’s Opening Br. at 16. We consider Mr. Wilson’s two
challenges in turn.
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Mr. Wilson first attacks the validity of his conviction. Id. at 6. He
explains that “the United States Supreme Court [in Rehaif] has rendered a
decision . . . that changes the rules all have been playing by . . . with respect to
prosecuting felon in possession cases.” Id. And the district court erred by failing
to inform him of the element of his crime of conviction that Rehaif
announced—specifically, that he must possess knowledge that he was a felon
when he possessed the firearm. Mr. Wilson supports this argument by noting that
“[n]owhere in the Plea Agreement [that he signed] is any statement that [he] knew
he was such a prohibited person.” Id. at 9 (emphases omitted).
To be sure, before Mr. Wilson entered his guilty plea, there is no record
evidence that he had been informed that a requisite element of his felon-inpossession charge is the defendant’s knowledge of his felon status at the time of
his firearm possession. But it is equally true that Mr. Wilson failed to raise any
objection to his conviction on this basis before the district court.
Consequently, Mr. Wilson forfeited this objection and is entitled, at most,
to plain-error review on appeal. See United States v. Tignor, 981 F.3d 826,
827–28 (10th Cir. 2020) (“Invoking Rehaif, Mr. Tignor urges vacatur of his guilty
plea because he wasn’t told about the newly recognized element. For this issue,
the parties agree that the plain-error standard applies.”); see also Richison v.
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Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (noting that “if the theory
simply was [not] raised before the district court, we usually hold it forfeited”).
We need not pause, however, to delineate the components of the plain-error
because Mr. Wilson has failed to argue plain error.
In order to secure plain-error review, a litigant must make an argument
under that rubric on appeal. See Richison, 634 F.3d at 1131 (noting that a
litigant’s “failure to argue for plain error [review] and its application on
appeal—surely marks the end of the road for an argument for reversal not first
presented to the district court”); accord United States v. Wright, 848 F.3d 1274,
1281 (10th Cir. 2017) (“[W]e have repeatedly declined to consider arguments
under the plain-error standard when the defendant fails to argue plain error.”).
Yet, Mr. Wilson has failed to argue for plain-error review in connection
with his Rehaif challenge. Instead, he elides any mention of his forfeiture before
the district court and asserts that the appropriate standard for consideration of the
Rehaif issue “should be de novo since [it] concerns a change in a statutory legal
definition,” citing United States v. Orr, 567 F.3d 610 (10th Cir. 2009). Aplt.’s
Opening Br. at 5. However, Orr is wholly inapposite, as to whether Mr. Wilson is
subject to plain-error review under these circumstances; that case merely stands
5 We do so infra in Part II.B.2.
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for the well-settled proposition that legal questions in the sentencing context
ordinarily are reviewed de novo. See Orr, 567 F.3d at 614.
Because of his failure to argue for plain-error review, Mr. Wilson must
confront the “cold reality” that similarly situated litigants have repeatedly faced.
Havens v. Colo. Dep’t of Corrs., 897 F.3d 1250, 1260 (10th Cir. 2018). That is,
he must make his peace with our decision to decline to consider the Rehaif issue
at all, deeming it “effectively waived.” Fish v. Kobach, 840 F.3d 710, 729–30
(10th Cir. 2016) (noting that litigant failed to “make an argument for plain error
review on appeal” and, as a consequence, defendant’s “argument has come to the
end of the road and is effectively waived”).
Mr. Wilson next argues that his “sentenc[e] is invalid.” Aplt.’s Opening
Br. at 10. While he acknowledges that the sentence was “consistent with the Plea
Agreement and the Sentencing Guidelines,” he claims that “his sentence should
nonetheless be reduced or even reversed since his mental health issues were
In light of this effective-waiver resolution of Mr. Wilson’s Rehaifbased challenge, we have no need to examine, and determine the applicability of,
the merits argument that the Federal Public Defender for the Districts of Colorado
and Wyoming advanced—in the role of amicus curiae in favor of
reversal—concerning the proper standard to measure prejudice in cases presenting
similar Rehaif issues. See Amicus Br. at 8 (“A guilty plea entered without
advisement of an essential element of the crime can be salvaged only if the record
shows that the defendant nevertheless was aware of the omitted element or
contains an admission by the defendant of the facts necessary to prove that
element.” (bold face font omitted)).
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incorrectly considered by the District Court.” Id. at 11. Mr. Wilson presents both
procedural and substantive challenges to his sentence. After providing an
overview of our standard of review, we address these challenges in turn.
7 Mr. Wilson attached to his Opening Brief—as Attachment C—a letter
that he wrote to the district court approximately two weeks after the court
imposed its sentence on him. See Aplt.’s Opening Br. at Attach. C (Wilson
Letter, filed Feb. 14, 2019). In that letter, Mr. Wilson claimed that he asked his
lawyers “to request a full mental and psychological evaluation” prior to
sentencing but it “was never done” and asserted that his lawyers had provided
“ineffective assistance of counsel.” Id. at 1. Mr. Wilson makes brief and oblique
references to the contents of this letter in his Opening Brief, at least arguably in
support of his challenges to both the procedural and substantive reasonableness of
his sentence. In this regard, he notes that the letter “cites many mental health
issues which the Court did not adequately consider for sentencing” and that Mr.
Wilson’s counsel was “deficient in failing to investigate and verify his mental
illness history,” consequently leaving the district court without “a reasonable
record before it to evaluate the significance of Mr. Wilson’s mental illness.”
Aplt.’s Opening Br. at 12, 15. Because Mr. Wilson’s letter was not before the
district court at the time that the court imposed Mr. Wilson’s sentence, its
contents cannot properly factor into our decisional calculus. See, e.g., United
States v. Dachman, 743 F.3d 254, 261 n.3 (7th Cir. 2014) (“On appeal, we only
consider evidence that was properly and timely introduced before the district
court. Consequently, we confine our review of the procedural soundness of
Dachman’s sentence to the record and the arguments he advanced in the district
court through the conclusion of his January 17, 2013 sentencing hearing.”); cf.
United States v. Mendoza, 543 F.3d 1186, 1196 (10th Cir. 2008) (noting that “a
sentencing court may not alter a sentence for substantive reasons after it has been
verbally imposed”); United States v. Warner, 23 F.3d 287, 290 (10th Cir. 1994)
(“Once the district court has heard objections to the [PSR] and has imposed
sentence, the district court’s jurisdiction over the defendant becomes very
limited.”). Moreover, even Mr. Wilson appears to recognize that his concern
about his counsel’s performance during his sentencing proceeding is a matter to
address “at another time.” Aplt.’s Opening Br. at 15; see United States v.
Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc) (“The rule in this
circuit, then, is that claims of constitutionally ineffective counsel should be
brought on collateral review, in the first petition filed under 28 U.S.C. § 2255.”);
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“[W]e review sentences for reasonableness under a deferential
abuse-of-discretion standard.” United States v. Alapizco-Valenzuela, 546 F.3d
1208, 1214 (10th Cir. 2008); accord United States v. Cookson, 922 F.3d 1079,
1090 (10th Cir. 2019). “A district court abuses its discretion when it renders a
judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.”
United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quoting United
States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)). Reasonableness
has both procedural and substantive components. “The procedural component
concerns how the district court calculated and explained the sentence, whereas the
substantive component concerns whether the length of the sentence is reasonable
in light of the statutory factors under 18 U.S.C. § 3553(a).” United States v.
Adams, 751 F.3d 1175, 1181 (10th Cir. 2014) (citing Alapizco-Valenzuela, 546
F.3d at 1214–15).
We turn first to Mr. Wilson’s procedural challenge, which focuses on the
nature and extent of the district court’s consideration of his mental-health history
see also United States v. Battles, 745 F.3d 436, 457 (10th Cir. 2014)
(“Ineffective-assistance-of-trial-counsel claims on direct appeal are generally
disfavored in this circuit.”). Therefore, we do not further address the contents of
Mr. Wilson’s post-sentence letter to the district court.
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in imposing its within-Guidelines sentence. It is well understood that a district
court commits procedural sentencing error by “failing to consider the [18 U.S.C.]
§ 3553(a) factors” or by “failing to adequately explain the chosen sentence.” Gall
v. United States, 552 U.S. 38, 51 (2007); accord United States v. Gordon, 710
F.3d 1124, 1160 (10th Cir. 2013); Alapizco-Valenzuela, 546 F.3d at 1214–16.
According to Mr. Wilson, certain § 3553(a) factors are particularly implicated by
the circumstances of his mental health—that is, those pertaining to “the
defendant’s history and characteristics and needed medical care.” Aplt.’s
Opening Br. at 11; see 18 U.S.C. § 3553(a)(1) (noting that the court must consider
“the history and characteristics of the defendant”); id. § 3553(a)(2)(D) (providing
that the court must consider “the need for the sentence imposed . . . to provide the
defendant with . . . medical care, or other correctional treatment in the most
effective manner”). And he contends that the district court did not adequately
consider these sentencing factors or discuss their relevance in explaining its
More specifically, Mr. Wilson contends that “his mental illnesses were
superficially recognized by the [district] court” and that “the court failed to
address his diagnosis of head trauma and bipolar illness and PTSD.” Aplt.’s
Opening Br. at 16. In connection with this contention, Mr. Wilson places fault on
the district court for not giving adequate attention to the information that the
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PSR’s Second Addendum reported; he said that this document “sounded the
alarm” in noting that Mr. Wilson’s GAF score was only 45, but the court did not
discuss this document “in substance” with counsel at the hearing. Id. at 12. He
further reasons that “[i]n referring to these issues[, presumably the issues that the
Second Addendum detailed,] as not ‘material’ the District court failed its duty to
provide an explanation and to adequately consider those issues.” Id. at 16.
Consistent with our precedent, however, Mr. Wilson acknowledges that,
because he “did not object to the procedure by which his sentence was determined
and explained, his sentence may only be reversed  in the presence of plain
error.” Id. at 10; see, e.g., United States v. Romero, 491 F.3d 1173, 1178 (10th
Cir. 2007) (“[B]ecause Romero did not object on procedural grounds . . . after the
district court imposed his sentence, he has forfeited his right to appeal this issue
and our review is only for plain error.”); accord United States v. Yurek, 925 F.3d
423, 445 (10th Cir. 2019).
Our plain-error standard is a familiar one:
To obtain relief under this [plain-error] doctrine, Mr. [Wilson]
“must show: (1) an error, (2) that is plain, which means clear or
obvious under current law, and (3) that affects substantial rights.
If he satisfies these criteria, this Court may exercise discretion to
correct the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.”
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United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (quoting United States
v. Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003)); accord United States v.
Bustamante-Conchas, 850 F.3d 1130, 1137 (10th Cir. 2017) (en banc).
We conclude that Mr. Wilson cannot satisfy this plain-error standard;
indeed, he cannot even establish that the district court erred at all (i.e., the first
prong of the plain-error standard). “Where, as here, a district court imposes a
sentence falling within the range suggested by the Guidelines, [18 U.S.C.] Section
3553(c) requires the court to provide only a general statement of ‘the reasons for
its imposition of the particular sentence.’” United States v. Ruiz-Terrazas, 477
F.3d 1196, 1199 (10th Cir. 2007) (quoting 18 U.S.C. § 3553(c)); accord United
States v. Fraser, 647 F.3d 1242, 1246 (10th Cir. 2011); see United States v.
Wireman, 849 F.3d 956, 958 (10th Cir. 2017) (“[W]e have held time and time
again that a district court does not run astray of its duty to ‘consider[ ] the parties’
arguments’ simply because it does not directly address those arguments
head-on—assuming, that is, that the district court imposes a within-Guidelines
sentence” (quoting Rita v. United States, 551 U.S. 338, 339 (2007))). Based on
our review of the record, it is patent that the district court provided such a general,
adequate statement of reasons—and then some. More specifically, the court
expressly considered the § 3553(a) factors as they pertained to Mr. Wilson’s
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To begin, the district court generally acknowledged its consideration of the
advisory Guidelines and the § 3553(a) factors:
The United States Sentencing Commission Guidelines are now
advisory. The Court, while not required to sentence within the
guidelines, has taken the guidelines into account in
determining an appropriate sentence. The Court has also taken
into account the statutory factors that are set forth at . . .
R., Vol. III, at 41–42. And, more specifically, the court considered Mr. Wilson’s
history and characteristics and focused significant attention on his mental-health
For example, the court discussed “a couple of things – actually, a lot of
things” about “his upbringing.” Id. at 42. The court mentioned the “tremendous
amount of baggage” of his youth, from his “broken home” to other “tragedies”
like having to “work in the carnival to earn money for the family.” Id. And,
contrary to Mr. Wilson’s argument on appeal, the district court specifically
discussed his “trauma to the head.” Id. at 43. This discussion specifically
included a reference to his head injury from 2009 and, consistent with §
3553(a)(2)(D), assessed Mr. Wilson’s potential need for additional medical
services. Id. In relevant part, the court explained:
As far as I know, there hasn’t been a great diagnosis of what
potential effects that [Mr. Wilson] might have from some of
these head injuries, but when you look over his behavior, his hair
trigger, anger management problems, possible drug use, it makes
me worried that Mr. Wilson may have some brain trauma that
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may be behind some of this and may be problematic for him, so
I strongly urge Mr. Wilson, while he is in custody, to see whether
he can get some medical services related to figuring out whether
there is any type of brain injury.
Id. at 43.
And the district court clearly took his mental illness into account in
imposing a term of imprisonment—albeit not in the manner that Mr. Wilson
hoped—noting that “what I just described [concerning Mr. Wilson’s difficult
upbringing and mental illness] may seem like kind of sympathetic, even
mitigating-type factors,” but in “combination [with Mr. Wilson’s prior history
with the law, reflecting his ‘anger management issues’ and ‘violent conduct’] they
are not.” Id. at 44. And, contrary to Mr. Wilson’s suggestion, the court did not
err in failing to discuss at length the contents of the Second Addendum.
The court found that the information contained in the Second Addendum
did not add anything “material” to the information already known about Mr.
Wilson’s mental-health circumstances. Id. at 32–33. And it is worth noting that
the court’s assessment of the significance of the information was even shared by
Mr. Wilson’s counsel. See id. Ultimately, after carefully reviewing the relevant
Indeed, the court specified, as a condition of his post-incarceration
supervised release, that “Mr. Wilson must participate in and successfully
complete a program of mental health treatment as approved by the probation
officer until such time as he is released from the program by the probation
officer.” R., Vol. III, at 48.
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portions of the record, we do not believe that the district court’s view of the
immateriality of this brief two-page document (i.e., the Second Addendum) is
clearly erroneous, especially in light of the other available information bearing on
Mr. Wilson’s mental illness. See Anderson v. City of Bessemer City, 470 U.S.
564, 574 (1985) (noting that the deferential clearly erroneous standard applies
“even when the district court’s findings do not rest on credibility determinations,
but are based on physical or documentary evidence or inferences from other
facts”); United States v. Wagner, 994 F.2d 1467, 1472 (10th Cir. 1993)
(“Although the district court acted within its discretion in relying on the
presentence report, we nevertheless still determine whether findings of fact are
clearly erroneous by the standard articulated by the Supreme Court in Anderson v.
City of Bessemer City[.]” (citations omitted)), abrogated on other grounds as
recognized by United States v. Smith, 433 F.3d 714, 716–17 (10th Cir. 2006).
In sum, Mr. Wilson fails to satisfy even the first prong of plain-error
review: he neither demonstrates that the district court committed procedural error
by failing to consider the § 3553(a) factors relating to his mental-health
circumstances, nor by inadequately explaining its within-Guidelines sentence.
We turn now to Mr. Wilson’s challenge to the substantive reasonableness of
his sentence. To be preserved for appellate review, “[g]enerally, claims of
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substantive reasonableness need not be raised in district court.” United States v.
Walker, 844 F.3d 1253, 1256 (10th Cir. 2017); accord United States v.
Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006). However, ordinarily, we
do not consider a claim of substantive reasonableness when the alleged error was
invited; in that situation, we deem the claim to be waived. See, e.g., United
States v. Mancera-Perez, 505 F.3d 1054, 1059 (10th Cir. 2007) (“When the
appellate argument for a lower sentence was not raised at any time before the
district court, and when, to the contrary, the defendant affirmatively endorses the
appropriateness of the length of the sentence before the district court, we
conclude that if, there was error, it was invited and waived.”); see also United
States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008) (noting that “[w]e
typically find waiver in cases where a party has invited the error that it now seeks
to challenge” on appeal). And that doctrine of waiver applies with full force here.
Specifically, we decline to consider Mr. Wilson’s challenge to the
substantive reasonableness (i.e., length) of his sentence because he invited any
error related to his sentence’s length. This is not a situation where the defendant
simply failed to object before the district court to the length of his sentence.
Instead, as part of his plea agreement, Mr. Wilson affirmatively—and on the
record—agreed to accept a sentence of the length that the district court imposed
on him, that is, sixty-three months’ imprisonment.
Appellate Case: 19-1055 Document: 010110458917 Date Filed: 01/04/2021 Page: 21
As such, Mr. Wilson invited any error related to that sentence’s length, and
we accordingly consider his challenge to the substantive reasonableness of his
sentence to be waived. See Mancera-Perez, 505 F.3d at 1057 n.3 (explaining it
would be “unjust and a perversion of the integrity and proper administration of
justice to allow a defendant affirmatively to support the reasonableness of his
sentence before the district court and then to challenge the reasonableness of that
sentence on appeal”); accord United States v. Chacon, 800 F. App’x 638, 641
(10th Cir. 2020) (unpublished) (deeming defendant’s substantive-reasonableness
challenge waived “because [he] received the sentence he requested”)
Outcome: For the foregoing reasons, we AFFIRM the district court’s judgment,
upholding the court’s rulings as to Mr. Wilson’s conviction and sentence.