FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 15, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-3019
          v.                                              (D. Kansas)
 JOSEPH N. WHITE,                               (D.C. No. 06-CR-10186-MLB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.



      Pursuant to a plea agreement, defendant and appellant Joseph N. White pled

guilty to one count of knowing possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c). The district court sua

sponte advised the parties it was considering an upward departure from the

advisory Guideline range. 1 After giving the parties an opportunity to respond, the


      *
        This order and judgment is not binding precedent except under the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.
      1
       While we use the word “departure” throughout most of this opinion, we
occasionally use the word “variance.” The district court used language suggestive
of both, and, as our discussion below indicates, it is of no moment whether we
                                                                     (continued...)
court departed upward from the Guideline range by eighty-seven months, and

sentenced White to 147 months’ imprisonment. He appeals his sentence, which

we affirm.



                                BACKGROUND

      On April 12, 2006, during an investigation by the Sedgwick County,

Kansas, Sheriff’s Office, White sold approximately .43 grams of crack cocaine to

a confidential informant at a convenience store in Wichita, Kansas. During the

sale, White’s two young children were in his car at the convenience store. Law

enforcement officers conducting surveillance saw White, another man, and two

young children drive from White’s residence to the convenience store in a Ford

Crown Victoria.

      On April 25, 2006, White sold .40 grams of crack cocaine to a confidential

informant at White’s residence. During the sale, White’s two young children

were inside his residence, which is within 1,000 feet of a school. On April 27,

2006, law enforcement officers executed a search warrant at White’s residence

and found 11.45 grams of crack cocaine, a box of baggies, a digital scale, two

      1
        (...continued)
call the above-Guidelines sentence in this case a “departure” or a “variance.” A
variance occurs “[w]hen a court enhances or detracts from the recommended
range through application of § 3553(a) factors.” United States v. Atencio, 

, 1101 n.1 (10th Cir. 2007). 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.” 

blades, and a plate. The plate, scale and razor blades were covered with a

powdery residue. The officers also found White’s four-year-old son in a

bedroom, in which they also found a loaded 9 mm Glock pistol on a closet shelf.

A magazine containing additional rounds was on the shelf next to the gun. In the

living room, officers found a loaded .45 caliber Glock Model 21 on the top shelf

of a computer desk. 2 Beneath White’s clothing in another bedroom closet, the

officers found an Olympic Arms PCR3.223 caliber rifle with two 30-round

magazines, a double magazine adapter, an LED light, and a thumb-activated laser

light. In that same bedroom, the officers found more ammunition magazines for

the Glock handguns, a gun box for a .357 Glock, one round of .357 ammunition,

and a plastic cover for a digital scale that had marijuana and cocaine residue on it.

Additionally, the officers found a rifle in a gun case in the trunk of a Ford Crown

Victoria parked in the driveway. This was the same car used to deliver the crack

cocaine to the convenience store on April 12.

      On May 9, 2006, the confidential informant called White and arranged to

purchase crack cocaine. The confidential informant met with White’s co-

defendant, Shonnetta Gabriel, in Wichita and bought .45 grams of crack cocaine.

The residence where the transaction took place is within 1,000 feet of an

elementary school. On May 16, the confidential informant purchased .40 grams


      2
      Although both Glocks were loaded, apparently neither had a bullet in the
chamber. PSR at ¶ 24, R. Vol. V.

                                         -3-
of crack cocaine from White at an Autozone in Wichita. Law enforcement

personnel conducting surveillance of White’s residence saw him leave his

residence and drive to the Autozone. On May 19, the confidential informant

called White and arranged to purchase crack cocaine at the same Autozone. Law

enforcement officers conducting surveillance of White’s residence saw another

black male, Wendale Gasper, Sr., leave the residence and drive to the Autozone,

where he sold .40 grams of crack cocaine to the confidential informant. On May

23, the confidential informant called White and arranged another purchase of

crack cocaine at the same Autozone. Law enforcement officers observed co-

defendant Gabriel leave White’s residence, drive to the Autozone, and sell .37

grams of crack cocaine to the confidential informant.

      On May 30, officers again executed a search warrant at White’s residence.

Two of White’s children, ages eight and two, were in the living room. In the

southeast bedroom, where White was sleeping with his four-year-old son, officers

found an unloaded 9mm Taurus handgun in a gun case on a top shelf in the closet,

a plastic baggie with 2.54 grams of crack cocaine under the mattress, and White’s

wallet containing $245 on the nightstand. In the kitchen, officers found three

scales, one of which had a powdery residue which tested positive for cocaine. In

the dining room, officers found one round of 9 mm ammunition in a cell phone

box. In the children’s bedroom, they found a plate on which there was a razor

blade and a white powdery residue.

                                        -4-
      On June 7, 2006, the confidential informant called White and asked to

purchase some crack cocaine. A few minutes later, the confidential informant

received a call from co-defendant Gabriel concerning the sale. Law enforcement

personnel conducting surveillance of White’s house saw White and Gabriel drive

away and meet another man. A short time later, officers followed Gabriel to a gas

station where Gabriel met a female. Following this meeting, officers stopped the

female and found crack cocaine in her vehicle. Officers watched Gabriel then

drive and pick up White. Later that same day, Gabriel called the confidential

informant and arranged to meet at a restaurant in Wichita. They did so, and the

confidential informant purchased .37 grams of cocaine from Gabriel. The

restaurant is within 1,000 feet of an elementary school. Later that evening,

officers stopped White’s vehicle for a traffic violation and found four baggies

containing approximately 4.42 grams of crack cocaine in White’s underwear and a

baggie containing an additional .19 grams of crack cocaine in the driver’s side

door of the car.

      On August 22, 2006, White was charged in a sixteen-count indictment with:

one count of conspiracy to possess with intent to distribute crack cocaine; four

counts of distributing crack cocaine; three counts of distributing crack cocaine

within 1,000 feet of a public school; two counts of possession with intent to

distribute crack cocaine within 1,000 feet of a public school; two counts of

possession of a firearm in furtherance of a drug trafficking crime; one count of

                                         -5-
possession with the intent to distribute crack cocaine; one count of maintaining a

residence within 1,000 feet of a public school for the purpose of distributing

crack cocaine; and two counts of being an unlawful user of a controlled substance

in possession of a firearm.

      On October 20, 2006, White pled guilty to one count of possession of a

firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c). As stated in his plea agreement, White admitted the following:

      On April 27, 2006, in Wichita, Kansas, the defendant possessed a
      Glock Model 17, 9mm handgun, and a Glock Model 21, .45 caliber
      handgun. At the time he possessed these firearms the defendant was
      engaged in the distribution of crack cocaine. These firearms were for
      the defendant’s protection and used by him to further his drug
      trafficking.

R. Vol. I, doc. 27 at 2. In exchange for his plea of guilty to this one count (count

12 of the 16-count indictment), the government agreed not to file any additional

charges against White, to recommend a sentence at the low end of the applicable

guideline range, and in any event, not to exceed 60 months, to recommend a

three-level reduction for acceptance of responsibility and to not request an

upward departure if White agreed not to request a downward departure.

      In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”). The PSR noted that the minimum statutory term of

imprisonment for a violation of 18 U.S.C. § 924(c) is five years, and that the

Guideline sentence is that minimum statutory term. The PSR found no factors


                                          -6-
warranting a departure from the Guideline sentence or a sentence outside the

advisory Guideline range. Neither the government nor White objected to the

PSR.

       On December 8, 2006, the district court sent a letter to all counsel stating

that it was contemplating an upward departure to a sentence greater than five

years. The court explained its reasons as follows:

              For reasons not apparent in the record, defendant has been able
       to negotiate a guilty plea to count 12 of a 16 count indictment
       charging numerous serious drug and firearm violations. Count 12
       charges a violation of 18 U.S.C. § 924(c) which carries a mandatory
       minimum sentence of five years imprisonment and maximum
       sentence of life in prison. Although the advisory guidelines do not
       offer any explanation for what seems to be an illogical result, the
       guideline sentence is the same as the mandatory minimum sentence.
       I am hard pressed to understand how the Sentencing Commission
       would come to such a conclusion when Congress presumably
       believed that a § 924(c) violation was sufficiently serious to carry a
       maximum sentence of life imprisonment. Nevertheless, [United
       States Sentencing Guideline (“USSG”)] § 2K2.4, Application Note
       2(B), provides for an upward departure.[ 3]

       3
        USSG § 2K2.4(b) provides, “if the defendant . . . was convicted of
violating section 924(c) . . . the guideline sentence is the minimum term of
imprisonment required by statute.” USSG § 2K2.4, comment. (n.2(B)) provides
as follows:

       Upward Departure Provision–In a case in which the guideline
       sentence is determined under subsection (b), a sentence above the
       minimum term required by 18 U.S.C. § 924(c) . . . is an upward
       departure from the guideline sentence. A departure may be
       warranted, for example, to reflect the seriousness of the defendant’s
       criminal history in a case in which the defendant is convicted of an
       18 U.S.C. § 924(c) . . . offense but is not determined to be a career
       offender.
                                                                        (continued...)

                                          -7-
             Section 5K2.21 of the advisory guidelines allows me to “ . . .
      depart upward to reflect the actual seriousness of the offense based
      on conduct (1) underlying a charge dismissed as part of a plea
      agreement in the case or underlying a potential charge not pursued in
      the case as part of a plea agreement or for any other reasons; and (2)
      that did not enter into a determination of the applicable guideline
      range.”

             The Tenth Circuit has recognized the application of § 5K2.21
      in both pre-Booker and post-Booker cases: United States v. Gilmore,
      62 Fed. Appx. 857 (10th Cir. 2003), and United States v. Zunie, 

, 1237 (10th Cir. 2006).

                                         ...

      Taken together, then, 18 U.S.C. § 3661[ 4] and the advisory guidelines
      allow me to consider many more things about defendant than the
      guideline sentence, and most of them are unfavorable to him.

Letter dated 12/08/06 at 1-2, R. Vol. I, tab 44, Ex. A. The court then discussed

the plea agreement, including White’s acknowledgment that the government’s

recommendation of a five-year sentence was not binding on the court. The court

recounted the plea colloquy, in which the court discussed relevant conduct and

informed White that “all these other counts of this indictment, even though you’re



      3
     (...continued)
USSG § 2K2.4, comment. (n.2(B)).
      4
          18 U.S.C. § 3661 provides as follows:

      No limitation shall be placed on the information concerning the
      background, character, and conduct of a person convicted of an
      offense which a court of the United States may receive and consider
      for the purpose of imposing an appropriate sentence.

18 U.S.C. § 3661.

                                         -8-
not pleading guilty to these counts, can be taken into consideration in setting your

sentence.” 

The court subsequently described all of White’s conduct

underlying the remaining counts of the sixteen-count indictment, concluding:

            Notwithstanding these events in April 2006, defendant
      continued to sell crack cocaine in May 2006, either personally or
      through others, including his codefendant. On May 30, 2006,
      Defendant’s residence was again searched pursuant to a warrant.
      Three children, ages 2, 4 and 8 were in the residence along with an
      unloaded weapon, crack cocaine and drug paraphernalia. Then, in
      June 2006, defendant participated in additional crack cocaine sales.

The court’s letter went on to state:

             I must consider certain factors under 18 U.S.C. § 3553. But
      keep in mind that I am providing this information pursuant to Rule
      32(h)[ 5], not as an all-inclusive list of the factors which I may
      ultimately consider after the defendant has had the opportunity to
      comment. . . .

             According to the presentence report, defendant is 28 years old
      and has been using illegal drugs on a regular basis for 13 years. He
      has five children and one stepchild who he apparently does not
      support, at least on a regular basis. His employment history is
      somewhat irregular but his educational attainments are sufficient that
      he could work regularly and support his dependents should he be
      inclined to do so. In other words, there is no demonstrable economic
      reason for defendant to be selling drugs and taking money from a
      girlfriend, assuming that selling drugs can ever be justified by

      5
          Fed. R. Crim. P. 32(h) provides:

      Notice of Possible Departure from Sentencing Guidelines. Before
      the court may depart from the applicable sentencing range on a
      ground not identified for departure either in the presentence report or
      in a party’s prehearing submission, the court must give the parties
      reasonable notice that it is contemplating such a departure. The
      notice must specify any ground on which the court is contemplating a
      departure.

                                             -9-
      economic need. On the contrary, based on the record, I assume
      defendant sells drugs to support his own drug habit and because he is
      too lazy to work.

            All of the charges in the indictment are very serious.
      Defendant’s conduct demonstrates complete lack of respect for the
      law. It is clear that even when confronted by authorities with selling
      drugs, he was not deterred from doing so. The public needs to be
      protected from that type of conduct and, in particular, his children
      need to be protected. The conduct of a parent who exposes young
      children to the drug trade is beneath contempt. I don’t have to dwell
      on the fact that children who are exposed to drugs are more likely to
      become involved in the illegal drug trade and the use of illegal drugs.
      Anyone who believes otherwise is either terminally naive or
      completely ignorant of the drug culture.

                                         ...

            I asked [the probation officer who prepared the PSR] to give
      me some information regarding the types of sentences which would
      have been available had defendant pled to other counts in the
      indictment. . . .

             Finally, while I have not seen the presentence report regarding
      Shonnetta Gabriel, defendant’s codefendant, it is my understanding
      that her sentencing range is 46-57 months. Gabriel is charged in
      only four of the 16 counts of the indictment. Defendant is charged in
      all 16. There would appear to be no sentencing disparity if defendant
      receives a sentence greater than 60 months if, for no other reason,
      because his criminal conduct is substantially more serious than that
      of Gabriel.

On December 12, the court sent another letter supplementing his

December 8 letter, stating as follows:

             U.S.S.G. § 2K2.4, Application Note 7 (2006 Guidelines
      Manual) states, in pertinent part: “The Commission has not
      established a fine guideline range for the unusual case in which there
      is no conviction for the underlying offense, although a fine is
      authorized under 18 U.S.C. § 3571.” It is clear from reading the

                                         -10-
      other application notes that an underlying offense would include a
      drug trafficking crime. Thus, the Sentencing Commission would
      view this case as “unusual” because the parties have agreed to allow
      defendant to plead guilty to the 924(c) count alone, rather than in
      addition to one or more underlying drug counts.

             I believe this analysis of the commentary supports my view
      that this is an “unusual” case in which a sentence greater than 60
      months will be reasonable.

Letter dated 12/12/06, R. Vol. I, tab 44, Ex. B.

      The court invited the parties to submit memoranda addressing the issues set

forth in the court’s two letters, and White did so. In his memorandum, White

pointed out that he “was not a distributor of large amounts of drugs, or considered

by law enforcement officers to be a high level drug dealer,” and that “the total

amount of crack cocaine involved in this case is merely 21.39 grams.” Response

to Court’s Notice to Depart at 7, R. Vol. I, tab 34. Furthermore, White argued he

“has no felony criminal history, or criminal record of dealing drugs in the past.”

offered a DVD of an interview with his sister, “who describes in a

very intimate and personal way, the abuse suffered by she and Mr. White as

children [of a] life time drug addict, who abused and abandoned her children in

exchange for men and drugs.” 

White then stated that “[t]he type of

offenses with which [he] is charged are not at all representative of his true

character” and he “is a gentle and respectful young man, but also a seat of inner

conflict.” 

(footnote omitted). He also pointed out that “[a]lthough

numerous firearms were located in Mr. White’s house and in his automobile

                                         -11-
trunk, [which belonged to him . . .], White did not present those firearms or

threaten to use them in any drug transaction.” 

With respect to the

allegation that he endangered his children, he noted that “these children belonged

also to Shonetta Gabriel, their mother. If this regrettable factor should result in

an increase in Mr. White’s sentence, should it not likewise result in an increase of

Ms. Gabriel’s sentence?” 

      Following a hearing at which both parties presented argument, the district

court issued its sentencing decision, in which the court “adhere[d] to [its] belief

that an upward departure from the advisory guideline sentence is warranted.”

Sentencing Dec. at 1, R. Vol. I, tab 44. After observing that the law regarding

sentence departures is “not totally settled” in our circuit, the district court stated

that it was obligated “to consult both the advisory guidelines and the statutory

factors set forth in 18 U.S.C. § 3553(a).” 

The court held that its two

letters adequately discussed the advisory guidelines and explained “that an

upward departure is allowable under the advisory guidelines.” 

then turned to its analysis of the 18 U.S.C. § 3553(a) factors. In

considering the “history and characteristics” of White, the court observed,

“[t]here is no question that the circumstances of defendant’s upbringing were far

worse than the ‘normal’ law-abiding, two parent, nurturing home which some

might contend to be a base-line for consideration of a defendant’s history and

characteristics.” 

After articulating the critical question as “whether

                                          -12-
defendant’s unfortunate history militates against an upward departure,” the court

concluded, “when all the circumstances and statutory factors are considered,

defendant’s unfortunate childhood does not prevent an upward departure.” 

The court then commented on White’s involvement of his children in his

drug transactions, stating, “[t]he court supposes that it is possible for some

persons to feel love and concern for the welfare of one’s children while, at the

same time, exposing young children to drug trafficking and the danger of

firearms, but the court cannot identify with such persons.” 

It further

stated:

              What the court does know with certainty from hands-on
      experience of sentencing defendants (as opposed to reading about
      sentencing) is that cases of this type fall in the category of a self-
      fulfilling prophecy. In other words, the child of a parent who uses
      and/or sells illegal drugs is very likely to follow in the parent’s
      footsteps, which is exactly what defendant has done. When, as here,
      a defendant takes his small children with him when engaging in drug
      transactions, that defendant has to be separated from his children.
      This falls within the category of protecting the public from further
      crimes of the defendant.

then explained its sentence:

             In an effort to formulate a sentence which will be acceptable under
      the advisory guidelines and the § 3553(a) factors, the court requested the
      probation officer to prepare a sentence calculation which takes into
      consideration the offense of conviction (count 12, possession of a firearm
      in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)
      which carries a minimum and advisory guideline sentence of 60 months)
      plus the “underlying offense” charged in count 4, possession with intent to
      distribute cocaine base within 1,000 feet of a school in violation of 21
      U.S.C. §§ 842(a)(1) and 860. . . .


                                         -13-
              Using defendant’s criminal history category II and a total
       offense level of 26, the advisory guideline range for count 4 becomes
       70-87 months. The court will impose a 60 month sentence on count
       12 enhanced by an upward departure of 87 months for a controlling
       sentence of 147 months. The court finds that such a sentence is
       consistent with the advisory guidelines and is sufficient, but not
       greater than necessary, to comply with the sentencing purposes set
       forth in § 3553(a).

       White appeals, arguing the upward departure or variance to a 147-month

sentence was procedurally and substantively unreasonable.



                                  DISCUSSION

       Since United States v. Booker, 

(2005), “we review sentencing

decisions for reasonableness, which has both procedural and substantive

components.” United States v. Atencio, 

, 1102 (10th Cir. 2007).

Procedural reasonableness involves the manner in which a court calculates a

sentence. “In setting a procedurally reasonable sentence, a district court must

calculate the proper advisory Guidelines range and apply the factors set forth in

§ 3553(a).” 

relates to the overall length of the

sentence. “A substantively reasonable sentence ultimately reflects the gravity of

the crime and the § 3553(a) factors as applied to the case.” Id.. Most recently,

the Supreme Court in Gall v. United States, 

, 591 (2007), made it

clear that “courts of appeals must review all sentences–whether inside, just


                                        -14-
outside, or significantly outside the Guidelines range–under a deferential abuse-

of-discretion standard.” 

       White argues the district court: did not “provide a clear statement of

reasons sufficient to justify the extreme upward departure of 87 months in

addition to an advisory guideline sentence of 60 months;” “consider[ed]

inappropriate factors such as disagreement with the government’s plea negotiation

decisions and the policy decisions of the Sentencing Commission;” failed to

explain why the court’s upward departure resulted in a sentence sufficient but not

greater than necessary to comply with 18 U.S.C. § 3553(a); failed to explain why

the factors upon which the court relied, either individually or collectively,

constituted “extraordinary circumstances justifying the extreme upward

departure;” and “imposed [a] substantively unreasonable [sentence] after

consideration of the § 3553(a) factors.” Appellant’s Op. Br. at 1-2.

      I. Procedural reasonableness:

      We begin by considering our standard of review for White’s claim that the

district court imposed his sentence in a procedurally unreasonable way. The

government, citing United States v. Romero, 

(10th Cir. 2007),

argues that, since White failed to object following imposition of sentence to the

government’s calculation of his sentence or explanation for the sentence imposed,

we must review his claim of procedural unreasonableness for plain error. White

responds that:

                                         -15-
      as Romero makes clear, the law prior to that decision was
      inconsistent and confusing as to whether an objection had to be made
      after a procedurally erroneous sentence in order to preserve that
      error. Since Romero was decided well after the sentencing in this
      case, it would be manifestly unjust to apply that rule in this case.

Appellant’s Reply Br. at 1. White concedes, however, that at least two of our

decisions prior to Romero had “expressly held that a contemporaneous objection

to a procedural error in sentencing was required to avoid a plain error standard.”

with the government that White was sufficiently on notice that a

contemporaneous objection is required to avoid a plain error standard, and

Romero simply reiterated and further clarified that. As in Romero, it is clear

from the record in this case that, although White presented arguments against the

court’s proposed upward departure from the advisory Guidelines range, he “did

not raise the procedural objection he now asserts after the district court imposed

sentence.” 

. We took the opportunity in Romero to

reassert “[o]ur conviction that the requirement of contemporaneous objection to

procedural errors is consistent with our precedent and represents a reasonable

burden on defendants. . . . “ 

6 Thus, a plain error standard of review

applies to White’s allegations of procedural unreasonableness.




      6
       Our decision in Romero gave multiple reasons why its holding was
consistent with our precedent, despite any confusion engendered by other cases.

                                         -16-
      “We find plain error only when there is (1) error, (2) that is plain,

(3) which affects substantial rights, and (4) which seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” 

“The plain

error standard presents a heavy burden for an appellant, one which is not often

satisfied.” 

States v. Toro-Pelaez, 

, 827 (10th Cir.

1997) (“[T]he plain-error exception to the contemporaneous-objection rule is to

be used sparingly, solely in those circumstances in which a miscarriage of justice

would otherwise result.”) (further quotation omitted).

      White has failed to establish that the district committed any error which

affected his substantial rights. He argues that the district court failed to “clearly

set forth the factors upon which it relied to justify either its decision to grant an

upward departure or the extreme degree of the departure imposed.” Appellant’s

Br. at 12. He also argues the court considered inappropriate factors and failed to

explain why departing upward on the basis of a dismissed count and running it

concurrent to the count of conviction resulted in a reasonable sentence. We

disagree with White’s complaints about the district court’s methodology.

      First, as the district court noted, USSG § 5K2.21 permits the court to

“depart upward to reflect the actual seriousness of the offense based on conduct

(1) underlying a charge dismissed as part of plea agreement in the case or

underlying a potential charge not pursued in the case as part of a plea agreement

or for any other reasons.” Thus, the district court asked the probation office to

                                          -17-
calculate a sentence for count four (possession with the intent to distribute crack

cocaine within 1,000 feet of a school), which was the count underlying count

twelve (the count of conviction). 7 The connection between counts four and

twelve is, therefore, obvious. Furthermore, the five-year sentence imposed under

§ 924(c) is required to be consecutive to any sentence for the underlying offense.

      Second, rather than failing to explain his reasons for departing upward from

five years, the court’s letters and sentencing decision amply explained its reasons

for doing so. 8 White had distributed cocaine and possessed multiple firearms

while his young children were present; he continued to sell cocaine even after

being confronted by law enforcement authorities and having his residence

      7
        As indicated, White pled guilty to count twelve–possession of a firearm in
furtherance of a drug trafficking crime. He admitted during his change of plea
hearing that “[a]t the time he possessed these firearms the defendant was engaged
in the distribution of crack cocaine,” R. Vol. I, doc. 27 at ¶ 2. He admitted to
selling crack cocaine from his residence, which was within 1,000 yards of a
school, which is also where the firearms were found.
      8
        White spends a considerable amount of time arguing that the court’s
upward departure (or variance), from sixty months to 147 months, was
extraordinary, and therefore required extraordinary circumstances. This argument
was based upon our prior jurisprudence. See, e.g., United States v. Cage, 

(10th Cir. 2006); United States v. Bishop, 

(10th Cir.
2006), cert. denied, 

(2007). However, these cases were overruled
by Gall v. United States, 

(2007), which specifically rejected “an
appellate rule that requires ‘extraordinary’ circumstances to justify a sentence
outside the Guidelines range” or an appellate court’s “use of a rigid mathematical
formula that uses the percentage of a departure as the standard for determining the
strength of the justifications required for a specific sentence.” 

The
Gall Court did, however, state that “appellate courts may . . . take the degree of
variance into account and consider the extent of a deviation from the Guidelines.”

                                         -18-
searched; he had been charged with sixteen counts, all of which were serious, but

ended up only pleading guilty to one; his conduct demonstrated a complete lack

of respect for the law; the public and his young children needed to be protected

from his conduct; and he was harming his children by exposing them to the drug

trade. Even if some of the reasons the district court gave were of questionable

propriety, or were extraneous comments, those reasons were overwhelmed by the

permissible reasons given and were not structurally fatal to the whole sentencing

proceeding. It is clear that the judge not only stated, but relied principally upon,

appropriate reasons, under any standard of review. Thus, even if there was error,

White cannot demonstrate that any procedural error affected his substantial rights.

      II. Substantive reasonableness:

      Gall has made clear that we review “all sentences–whether inside, just

outside, or significantly outside the Guidelines range–under a deferential abuse-

of-discretion standard.” 

. A substantively reasonable

sentence reflects the gravity of the crime and the § 3553(a) factors as applied to

the case. See United States v. Hernandez, 

, 1297-98 (10th Cir.

2007). The sentence in this case satisfies that standard. The court found an

upward departure was appropriate under USSG §5K2.21 “to reflect the actual

seriousness of the offense based on conduct. . .underlying a charge dismissed as

part of a plea agreement. . .” It further stated its awareness that it must consider

the § 3553(a) factors. The court discussed, and the record reflects, the nature and

                                         -19-
characteristics of White, the seriousness of his criminal conduct, the need to

protect society from him, and the need for deterrence. We cannot say that, under a

deferential abuse-of-discretion standard, the court abused its discretion in

imposing the sentence it did on White.



                                  CONCLUSION

      For the foregoing reasons, the sentence is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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