FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         August 9, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-2244
                                                (D.C. No. 1:15-CR-03251-MCA-1)
MATTHEW YAZZIE,                                             (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
                 _________________________________

      In this direct criminal appeal, Defendant-Appellant Matthew Yazzie contends

that his seventy-eight-month within-guideline sentence for assault resulting in serious

bodily injury is substantively unreasonable because the sentencing guideline used to

calculate his advisory sentencing range, U.S.S.G. § 2A2.2, produces disproportionate

sentences. Having jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we

reject Yazzie’s disproportionality argument and AFFIRM his sentence.

                                     BACKGROUND

      Yazzie, driving drunk, hit another vehicle head-on on a highway located on a

Native American reservation, injuring a mother and her three children. As a result of

*
 This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the accident, a grand jury indicted Yazzie on three counts of assault resulting in

serious bodily injury occurring in Indian country, see 18 U.S.C. §§ 113(a)(6), 1153,

naming the mother and her two youngest passengers as victims. Yazzie pled guilty to

all three charges.

         As directed by the sentencing guideline manual, the district court applied

U.S.S.G. § 2A2.2 to calculate Yazzie’s advisory sentencing range.1 Section 2A2.2

applies to “Aggravated Assaults,” including Yazzie’s convictions for assault resulting

in serious bodily injury in violation of 18 U.S.C. § 113(a)(6). Using primarily

§ 2A2.2, the district court calculated Yazzie’s total offense level to be twenty-one.

That offense level, combined with Yazzie’s criminal history category V (which

included his four prior convictions for driving under the influence and one for driving

while impaired), resulted in an advisory guideline range of seventy to eighty-seven

months in prison. Yazzie concedes that the district court’s guideline calculations

were accurate. At sentencing, Yazzie argued for a below-guideline thirty-seven-

month prison sentence, asserting the same disproportionality arguments he reiterates

on appeal. The district court rejected those proportionality arguments and imposed a

sentence in the middle of the guideline range, seventy-eight months in prison on each

count, to run concurrently.




1
    The district court applied the 2015 version of the guidelines.
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                                        DISCUSSION

      On appeal, Yazzie contends that his within-guideline sentence is substantively

unreasonable. “Substantive reasonableness involves whether the length of the

sentence is reasonable given all the circumstances of the case in light of the factors

set forth in 18 U.S.C. § 3553(a).” United States v. Craig, 

, 1261 (10th

Cir. 2015) (internal quotation marks omitted). We review the substantive

reasonableness of a sentence for an abuse of discretion, reversing “only if the court

exceeded the bounds of permissible choice, given the facts and the applicable law in

the case at hand.” United States v. DeRusse, 

, 1236 (10th Cir. 2017)

(internal quotation marks omitted). In addition, we review de novo Yazzie’s

challenge to the validity of U.S.S.G. § 2A2.2. See United States v. Herula, 

, 1136 (10th Cir. 2006) (reviewing de novo legal questions pertaining to

application of guidelines).

      Important to our analysis here, we presume that a prison sentence that falls

within a properly calculated guideline range is substantively reasonable.2 See United

States v. Kristl, 

, 1054-55 (10th Cir. 2006) (per curiam). We apply this

rebuttable presumption “even if the Guideline at issue arguably contains ‘serious

flaws’ or otherwise ‘lacks an empirical basis.’” United States v. Wireman, 

, 964 (10th Cir. 2017) (alteration omitted) (citing cases). Yazzie contends that,

2
 Not all circuits apply such a presumption. The Second Circuit, for example, does
not presume that within-guideline sentences are “reasonable when we review them
substantively.” United States v. Dorvee, 

, 183 (2d Cir. 2010).
Therefore, although Yazzie relies on the Second Circuit’s Dorvee decision, it is not
directly relevant.
                                           3
for two reasons, that presumption is not warranted in his case because U.S.S.G.

§ 2A2.2 produces disproportionate sentences.

      First, Yazzie contends that § 2A2.2 punishes reckless conduct resulting in

serious bodily injury more severely than reckless conduct resulting in death. Yazzie

specifically asserts that he received a longer sentence under U.S.S.G. § 2A2.2 for

assault resulting in serious bodily injury than the sentence he would have received if

he had killed his victims, which he contends would have been punished as

involuntary manslaughter based on reckless conduct, see 18 U.S.C. § 1112. Looking

at the guideline provisions relevant here, however, Yazzie is incorrect. The guideline

applicable to involuntary manslaughter convictions provides for a base offense level

of twenty-two for involuntary manslaughter if, as here, “the offense involved the

reckless operation of a means of transportation.” U.S.S.G. § 2A1.4(a)(2)(B). Section

2A2.2, on the other hand, provides for a base offense of fourteen for an aggravated

assault conviction and adds, in this case, seven offense levels because Yazzie’s

offense resulted in permanent or life threatening bodily injury, see 

(b)(3)(C), for an offense level of twenty-one. See United States v. Tindall, 

, 1060-61 (10th Cir. 2008). Thus, Yazzie’s guideline range, in fact, would not

have been lower had he killed, rather than seriously injured, his victims.

      Nor are we persuaded by Yazzie’s further argument that his sentence is still

disproportionate because his guideline range for assault resulting in serious bodily

injury was only slightly less than what his guideline range would have been had he

killed his victims. As an initial matter, Congress has chosen to punish assaults

                                           4
resulting in serious bodily injury to a (slightly) greater extent than involuntary

manslaughter, providing a statutory maximum of not more than ten years for assault

resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), compared to a statutory

maximum of not more than eight years for involuntary manslaughter, see 

       Moreover, it is only a matter of fortuity that Yazzie’s recklessness resulted

here in serious bodily injury rather than death. See generally 

(noting that serious physical injury, for purposes of 18 U.S.C. § 113(a)(6),

includes “bodily injury . . . involving . . . a substantial risk of death”) (internal

quotation marks omitted). That fact does not support the suggestion that Yazzie’s

guideline range, which appears to have been slightly shorter than the guideline range

for involuntary manslaughter, is disproportionate.

       The second reason that Yazzie contends U.S.S.G. § 2A2.2 produces

disproportionate sentencing ranges is because, according to Yazzie, the Sentencing

Commission did not intend for this guideline provision to apply to reckless conduct;

rather, Yazzie asserts that the Sentencing Commission intended § 2A2.2 to apply

only to more culpable intentional conduct.

       Yazzie bases this argument on the fact that, after the Sentencing Commission

drafted § 2A2.2, the Tenth Circuit, following several other circuits, held that a

conviction for assault resulting in serious bodily injury can be premised on either

intentional or reckless conduct. See United States v. Zunie, 

, 1235

(10th Cir. 2006); see also United States v. Ashley, 

, 910-11 (8th Cir.

                                             5
2001); United States v. Loera, 

, 727-28 (9th Cir. 1991). Thus, according

to Yazzie, his reckless conduct falls outside the heartland of intentional conduct

addressed by this guideline.

       There is no indication, however, that that is so. See United States v. Nastacio,

No. CR 05-2047 JB, 

, at *6-*7 (D. N.M. Mar. 5, 2007)

(unreported) (holding Sentencing Commission intended to include assaults based on

recklessness when it drafted U.S.S.G. § 2A2.2); cf. United States v. Pettigrew, 

, 640-41 (10th Cir. 2006) (upholding district court’s decision to depart

upward from guideline range calculated under U.S.S.G. § 2A2.2 because defendant’s

conduct in driving drunk was “excessively reckless”). The guidelines manual directs

a sentencing court to use U.S.S.G. § 2A2.2 to calculate the sentencing range for

convictions for assault resulting in serious bodily injury, in violation of 18 U.S.C.

§ 113(a)(6), but does not mention the mens rea required for those offenses. Instead,

the guidelines manual directs a sentencing court to apply § 2A2.2 to any type of

assault that 18 U.S.C. § 113(a) criminalizes and punishes by up to ten years in prison.

See 

(3), (6), (8). In the same vein, the guideline manual directs a

sentencing court to apply different guidelines for assaults which Congress punished

either more, see 

or less, severely, see 

(5), (7). See

U.S.S.G. §§ 2A2.1(a) (providing a base offense level of either thirty-three or twenty-

nine for assaults with intent to commit murder, punishable by no more than twenty

years in prison); 2A2.3(a) (providing base offense levels of either seven or four for

18 U.S.C. § 113(a) assaults punishable by a statutory maximum shorter than ten years

                                            6
in prison). Rather than focusing on the mens rea of each type of § 113(a) assault

conviction, then, the Sentencing Commission appears to have drafted a set of

guidelines, at least in part, to base punishment for § 113(a) assault convictions on the

statutory maximum sentences Congress provided for those offenses. See U.S.S.G.

Ch. 1, Pt. A(4)(g); see also 28 U.S.C. § 994(b)(1). Yazzie’s assertion, then, that the

Sentencing Commission intended, instead, to limit U.S.S.G. § 2A2.2’s application to

intentionally (rather than recklessly) committed 18 U.S.C. § 113(a)(6) assaults

resulting in serious injury is not persuasive.

                                        CONCLUSION

      Ultimately a district court must impose a sentence that is “sufficient, but not

greater than necessary to comply with the purposes set forth” in 18 U.S.C.

§ 3553(a)(2), 

only one of the 3553(a) factors involves an advisory

sentencing range calculated under the guidelines. See Kimbrough v. United States,

, 100-01 (2007). Yazzie does not invoke any other 18 U.S.C. § 3553(a)

factor to challenge the substantive reasonableness of his sentence. We, therefore,

reject his proportionality arguments and uphold his sentence as substantively

reasonable. We do not foreclose the district court, in another case, from choosing to

impose a below-guideline sentence based on similar disproportionality arguments.

But we cannot say here that the district court abused its discretion in Yazzie’s case in




                                            7
refusing to impose such a below-guideline sentence. We, therefore, AFFIRM

Yazzie’s sentence.




                                        Entered for the Court


                                        David M. Ebel
                                        Circuit Judge




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