F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 21, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-1332
          v.                                               D. Colo.
 JO H N M IC HA EL LU N A ,                      (D.C. No. 04-CR-520-EW N)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      John M ichael Luna pled guilty to possession of a firearm by a prohibited

person and was sentenced to 70 months imprisonment. He appeals from that




      *
        This order and judgment is not binding precedent except under the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.
sentence, arguing it is unreasonable. W e exercise jurisdiction under 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a) and affirm.

                                  I. Background

      A confidential informant told the South M etro Drug Task Force that Luna

manufactured and sold methamphetamine, possessed firearms and stored

methamphetamine at a storage unit in Denver, Colorado. The Task Force passed

this tip onto the Denver Police Department. Police officers stopped Luna’s

vehicle. Luna waived his M iranda rights and gave written consent to search his

vehicle, apartment and the storage unit. Luna stated he had drugs for his personal

use in his vehicle and apartment and a gun under his bed. Officers seized

baggies, vials, a digital scale and other drug paraphernalia from Luna’s vehicle.

The baggies and vials contained a total of one gram of methamphetamine and

twenty-five grams of cocaine. In Luna’s apartment, the officers discovered five

firearms, including a loaded .40 caliber pistol between the mattress and box

spring of Luna’s bed, a 9mm pistol, a 20-gauge shotgun and two 12-gauge

shotguns. Related to the .40 caliber pistol, the officers found a magazine

containing tw enty rounds of ammunition, a holster and a pistol case with two

laser sights. The officers also discovered a safe in the apartment. Luna’s key

ring contained a key to the safe. Inside the safe was over $1,000 in cash and

sixty-four cold pills containing pseudoephedrine. In the storage unit, officers




                                         -2-
found muriatic acid, several cans of Drano fluid and other chemicals used in the

manufacturing of methamphetamine.

      Luna was indicted for (1) possession of a firearm by a prohibited person,

(2) possession with intent to distribute cocaine and (3) possession with intent to

distribute methamphetamine. A superseding indictment was filed charging Luna

with possession of a firearm by a prohibited person. Luna pled guilty to the

superseding indictment. Pursuant to the plea agreement, in exchange for Luna’s

guilty plea, the government agreed to recommend a three-point downward

adjustment for acceptance of responsibility and to dismiss the original indictment.

      The plea agreement also contained a section pertaining to Luna’s estimated

sentence. W hile both parties agreed the base offense level was 24 and Luna’s

criminal history category was IV , they disputed the applicability of certain

sentencing factors and therefore the estimated guideline range. The government

believed a two-level enhancement under USSG §2K2.1(b)(1)(A ) was appropriate

because Luna possessed between three and seven firearms. 1 It also believed the

base offense level should be increased four levels under USSG §2K2.1(b)(5)

because Luna possessed a firearm in connection with another felony offense.

Applying these enhancements and a three-level downward adjustment for

acceptance of responsibility, the government estimated the guideline range as 70-

      1
       Luna was sentenced pursuant to the 2005 edition of the United States
Sentencing Commission Guidelines M anual. All citations to the guidelines in this
opinion refer to the 2005 guidelines unless otherwise indicated.

                                         -3-
87 months imprisonment. 2 Luna believed neither enhancement applied and

anticipated a guideline range of 37-46 months imprisonment.

      The probation department prepared a presentence report (PSR ). It found

Luna’s base offense level was 24. It increased the base offense level two levels

for possession of multiple firearms under USSG §2K2.1(b)(1)(A) but concluded a

four-level enhancement under USSG §2K2.1(b)(5) w as inapplicable. W hile it

found there was some indicia Luna was engaged in the manufacture of

methamphetamine, it concluded the nexus between the manufacturing and

firearms was nebulous. It also determined there was no evidence connecting

Luna’s possession of the drugs found in his vehicle and the firearms found in his

apartment. Applying the two-level enhancement and a three-level downward

adjustment for acceptance of responsibility, the probation department calculated

an adjusted offense level of 23. It also found Luna’s criminal history category

was VI, not IV as the parties had anticipated. W ith an adjusted offense level of

23 and a criminal history category of VI, the probation department determined the

guideline range was 92-115 months imprisonment. It also advised that because




      2
        The government’s estimate was incorrect. It was based on an erroneous
calculation of the adjusted offense level as 23. Given the government’s positions
regarding the applicable enhancements, its estimated adjusted offense level
should have been 30, resulting in a guideline range of 135-168 months
imprisonment. This error does not affect the disposition of this appeal.

                                        -4-
Luna was diagnosed with acquired immunodeficiency syndrome (A ID S), a

downward departure under USSG §5H1.4 may be warranted. 3

      Luna filed a motion for downward departure on two grounds. 4 First, he

claimed a departure was w arranted under U SSG §4A1.3(b)(1) because his

criminal history category over-represented the seriousness of his criminal history.

Second, he alleged he was entitled to a downward departure under U SSG §5H1.4

based on his having AID S. Luna also sought a variance under 18 U.S.C. §

3553(a), claiming a five year sentence was sufficient but not greater than

necessary to achieve the goals of sentencing. 5


      3
          Section 5H1.4 states:

      Physical condition or appearance, including physique, is not
      ordinarily relevant in determining whether a departure may be
      warranted. However, an extraordinary physical impairment may be a
      reason to depart downward; e.g., in the case of a seriously infirm
      defendant, home detention may be as efficient as, and less costly
      than, imprisonment.
      4
        Luna also objected to the possession of multiple firearms enhancement
and to the use of his prior Colorado conviction for third degree assault to
determine his base offense level. At sentencing, Luna withdrew his objection to
the possession of multiple firearms enhancement. As to his objection to the use
of his prior third degree assault conviction to calculate his base offense level,
Luna recognized it was foreclosed by our decision in United States v. Paxton, 

, 1205-07 (10th Cir. 2005) (holding a Colorado third degree assault
conviction is a “crime of violence” under USSG §2K2.1(a) as defined by USSG
§4B1.2). He raised it merely to preserve the issue for further review. These
issues are not before us.
      5
       A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 

, 1101 n.1

                                         -5-
      At sentencing, Luna renew ed his motion for a downward departure and/or a

variance. He claimed a sentence of “about 57 months” was appropriate. (R. Vol.

IV at 19.) The government did not oppose the court considering Luna’s medical

condition and proposed a 78-79 month sentence. The district court adopted the

probation department’s guideline range calculation. It denied Luna’s motion for

downward departure under USSG §4A1.3(b)(1). It found Luna “deserve[d] to be

in Category VI. That’s the most severe criminal history category, and that’s his

history.” (Id. at 24.) However, the court found a downward departure was

warranted under USSG §5H1.4 based on Luna having AIDS. It concluded a

departure of twenty-two months (from the bottom of the guideline range) was

appropriate. Declining to vary the sentence any further under the § 3553(a)

factors, the court sentenced Luna to 70 months imprisonment. This appeal

followed.

                                   II. Discussion

      W e review sentences imposed post-Booker for reasonableness. United

States v. Kristl, 

, 1053 (10th Cir. 2006). If the district court has

correctly determined the guideline range and the defendant is sentenced within

that range, the sentence is entitled to a “rebuttable presumption of

reasonableness.” 

“The defendant may rebut this presumption by



(10th Cir. 2007). A variance occurs “[w]hen a court enhances or detracts from
the recommended range through application of § 3553(a) factors.” 

that the sentence is unreasonable in light of the other sentencing

factors laid out in § 3553(a).” 

Those factors include: the nature and

circumstances of the offense; the history and characteristics of the defendant; the

need for the sentence imposed to reflect the seriousness of the offense, promote

respect for the law , provide just punishment for the offense, afford adequate

deterrence, protect the public, and provide the defendant with needed educational

or vocational training, medical care or other correctional treatment in the most

effective manner; pertinent guidelines; pertinent policy statements; the need to

avoid unwanted sentence disparities; and the need to provide restitution.

18 U.S.C. § 3553(a).

      Luna does not challenge the district court’s application of the guidelines or

its calculation of the guideline range. 6 Therefore, because he was sentenced

within that range, his sentence is entitled to a “rebuttable presumption of

reasonableness.” 7 

. Luna attempts to rebut this


      6
        The government argues that to the extent Luna’s appeal is construed as a
challenge to the district court’s refusal to further depart from the guideline range
under U SSG §5H1.4, we lack jurisdiction. Luna is not challenging the court’s
downward departure but rather claims his sentence is unreasonable under the 18
U.S.C. § 3553(a) factors. W e have jurisdiction. See U nited States v. Sanchez-
Juarez, 

, 1113-14 (10th Cir. 2006).
      7
        Luna argues this rebuttable presumption of reasonableness violates 18
U.S.C. § 3553(a) and is inconsistent with United States v. Booker, 

(2005). He recognizes, however, that we are bound by our prior precedent
“absent en banc reconsideration or a superseding contrary decision by the
Supreme Court” and raises the issue only to preserve it for possible further
review. In re Smith, 

, 724 (10th Cir. 1993). The issue is preserved.

                                         -7-
presumption by showing his sentence is unreasonable in light of the § 3553(a)

factors. Specifically, he claims the fact he has A IDS and has only several years

to live renders his sentence unreasonably long. 8 Given that he is dying of AIDS,

Luna asserts (1) his sentence amounts to a greater percentage of his life than

similarly situated defendants who do not suffer from a terminal illness and it may

in fact amount to a de facto life sentence, (2) prison life will undoubtedly be

much harder on him than other similarly-sentenced inmates and will likely

accelerate his deterioration given he will be more likely to contact an

opportunistic infection while in prison, and (3) he poses little threat to the public

and therefore there is no need to protect the public from him by keeping him in

prison. Luna also emphasizes the non-violent nature of his offense, referring to it

as a mere “status crime.” (A ppellant’s Opening Br. at 10.)

      Undoubtedly, Luna’s medical condition will render prison life more onerous

for him than other inmates. It is also possible he will die in prison. However, the

district court considered his medical condition and its severity in granting a

substantial downward departure. Therefore, Luna’s sentence already accounts for

the fact he has A IDS. M oreover, the alleged effects prison will have on Luna’s



      8
        According to Dr. David L. Cohn, Associate Director of Denver Public
Health and Professor of M edicine in the Infectious Diseases Division of the
University of Colorado Health Sciences Center, if Luna receives effective
treatment, is able to tolerate his medications and strictly adheres to his prescribed
treatment, “he is likely to have some recovery of his immune system and live for
several years.” (R. Vol. I, Doc. 32, Attachment at 3.)

                                           -8-
medical condition would exist even were he to have received the “about 57 month[]”

sentence he argued for at sentencing. (R. Vol. IV at 19.) And, whether or not he is

imprisoned, life is likely to be more difficult for Luna as a result of his illness.

There is also no evidence Luna will not receive the necessary medical treatment

during his incarceration. Indeed, given his limited financial resources, he may be

more likely to receive the treatment he needs (and adhere to it) while in prison. 9

      Luna’s sentence is also reasonable given his extensive criminal history, which

is the main reason he received the sentence he did. He has convictions for, inter

alia, distribution of a controlled substance (LSD ), driving while under the influence

of alcohol, driving while ability impaired (two convictions), assault, intimidating a

witness, harassment, third degree assault and possession with intent to distribute

cocaine. As the district court pointed out at sentencing, many of these convictions

were not even included in arriving at Luna’s criminal history category, which is the

highest criminal history category available under the guidelines. Luna also

committed the current offense less than two years after he was released from his

sentence for possession with intent to distribute cocaine. W hile Luna claims his

illness prevents him from being a serious threat to others and will adequately deter




      9
       Although Luna’s most recent employer, David M ontoya of “Trees Be
Gone” in Denver, described Luna as an exceptional employee and “the best tree
trimmer in Colorado,” the PSR indicates Luna has no known current assets or
income. (R . Vol. II at 18 (quotations omitted).)

                                            -9-
him from future crimes, this claim is belied by the fact he committed the current

offense while he was “very sick.” 10 (R . Vol. III at 20.)

      Lastly, Luna’s sentence is reasonable given the nature of his current offense.

Luna downplays the seriousness of his offense, emphasizing its non-violent nature.

However, his possession of a loaded firearm certainly could have led to violence.

M oreover, the police found four other firearms in his apartment and recovered

evidence of drug-trafficking and the manufacture of methamphetamine. 11 Thus,

Luna’s offense was more than a mere status offense.

      Luna has failed to rebut the presumption of reasonableness attached to his

guideline sentence, and, in any event (without the presumption), the sentence is

reasonable. W hile Luna’s medical condition is indeed unfortunate, it does not

warrant a lower sentence, which w as already the result of a substantial downward

departure based on that medical condition.

      A FFIR ME D.

                                                  ENTERED FOR THE COURT

                                                  Terrence L. O’Brien
                                                  Circuit Judge


      10
         Luna was not diagnosed with AIDS until he was in custody on the current
offense. However, the fact he was “very sick” and still comm itting crimes
demonstrates his having AIDS w ill not necessarily deter him from future criminal
activity. (R. Vol. III at 20.)
      11
         W e also point out that Luna received a substantial bargain from the plea
agreement, in which the government agreed to dismiss the two counts in the
original indictment relating to the drug-trafficking evidence.

                                           -10-