FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                    June 29, 2009
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                           No. 08-6191
 v.                                               (D.C. No. 5:03-CR-00148-D-1)
                                                         (W. Dist. Okla.)
 TIMOTHY DEWAYNE KINCHION, SR.,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before HENRY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.


      Timothy DeWayne Kinchion was convicted of conspiracy to possess with

intent to distribute cocaine powder in violation of 21 U.S.C. § 846 (Count 1),

possession with intent to distribute cocaine powder in violation of 21 U.S.C. §

841(a)(1) (Count 2), and carrying a firearm during and in relation to a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). He

appeals his resulting sentence of 295 months’ imprisonment. We affirm.


      *
         This order and judgment is not binding precedent, except under the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 F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1.
      This is Mr. Kinchion’s third appeal. Because the facts are fully set forth in

United States v. Kinchion, 271 Fed. Appx. 799, 801-02 (10th Cir. 2008) (Kinchion

II) (unpublished), and in Mr. Kinchion’s co-defendant’s case, United States v.

Nash, 

, 1211-13 (10th Cir. 2007), we do not recount them here.

However, the procedural history bears a brief summary.

      In Mr. Kinchion’s first appeal, United States v. Kinchion, 201 Fed. Appx.

606, 612 (10th Cir. 2006) (unpublished), we remanded for resentencing based on

Booker error. See United States v. Booker, 

(2005). The district

court imposed a new sentence of 352 months by applying a presumption of

reasonableness to the United States Sentencing Guidelines’ sentencing range.

Kinchion II, 271 Fed. Appx. at 801-02. On appeal, Mr. Kinchion contended the

district court erred when it presumed the guidelines to be reasonable and when it

increased his sentence based on judge-found facts that he intended to convert

powder cocaine into crack. We held the sentence enhancement based on crack

rather than powder cocaine did not violate the Sixth Amendment, 

but

we agreed that the district court had improperly applied a presumption of

reasonableness to the guidelines. 

second remand, Mr. Kinchion was resentenced by a new district

judge, the previous presiding judge having retired. The new judge imposed the

same sentence imposed after the first remand except for the now applicable

Amendment 706, which generally adjusts downward by two levels the base

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offense level assigned to quantities of crack cocaine. 1 With the adjusted base

offense level of 34, Mr. Kinchion’s advisory guideline range for confinement on

Counts 1 and 2 was 235 to 293 months. The court sentenced him to the bottom of

the guideline range for Counts I and II. It then sentenced him to a consecutive

60-month sentence for Count 3, as prescribed by statute. 18 U.S.C. §

924(c)(1)(A)(i), (D)(ii).

         On appeal, Mr. Kinchion first contends that this new sentence is greater

than necessary under 18 U.S.C. § 3553(a) because the district court erroneously

believed it was limited to imposing the guideline-determined sentence range. We

review a district court’s sentencing determination for reasonableness, asking

whether the court abused its discretion in selecting the sentence imposed. United

States v. Smart, 

, 803-06 (10th Cir. 2008). “In conducting

reasonableness review, we first consider whether the district court properly

applied the Guidelines and then determine whether the sentence imposed is

reasonable in light of the factors set forth in 18 U.S.C. § 3553(a). A sentence that

falls within the correctly calculated Guidelines range is presumptively

reasonable” on appeal. United States v. Gillespie, 

, 1192 (10th Cir.

2006).


         1
       Amendment 706 took effect November 1, 2007 and was made retroactive
as of March 3, 2008. See U.S.S.G. app. C Suppl., Amendment 706 (No. 1, 2007)
(regarding 2-level reduction); U.S.S.G. app. C. Suppl., Amendment 713 (Mar. 3,
2008) (regarding retroactivity).

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      Mr. Kinchion contends the district court erroneously felt bound to impose

the prior sentence except for the Amendment 706 adjustment. In short, he says,

the court did not sentence him de novo but rather performed a routine

crack/powder modification. The sentencing transcript tells a different story. The

district court conducted an “independent review of the record.” Re-Resent. Tr. at

6. It specifically acknowledged reviewing defendant’s sentencing memorandum

and the presentence report, including the objections to the report, which were also

“considered and ruled on by the previous court.” 

The court then noted

its discretion to decline to revisit the determinations of the previous sentencing

court, stating it was “in agreement with those findings, in any event.” 

The court heard argument from both Mr. Kinchion and the government regarding

the applicability of the § 3553(a) factors. After a discussion of those factors, the

court pronounced a sentence it described as “minimally sufficient to achieve the

goals of sentencing,” concluding “that the Section 3553 factors, carefully

considered and taken together, lead to a result entirely in harmony with the

application of the guidelines.” 

The court was not persuaded that the §

3553(a) factors justified a departure from the recommended guideline range.

      Describing its rationale, the district court stated that “the reasons for the

intended sentence are to reflect the seriousness of the offense and to provide just

punishment; to protect the public from further crimes of the defendant; to afford

adequate deterrence to criminal conduct; and to provide defendant with needed

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medical care and correctional treatment.” 

sufficient to satisfy §

3553(a)’s requirement that the district court provide a statement of reasons for its

sentence. See United States v. Ruiz-Terrazas, 

, 1199 (10th Cir.

2007) (“Section 3553(c) requires the court to provide only a general statement of

the reasons for its imposition of the particular sentence.” (quotation marks

omitted)). “[W]e will step in and find error [only] when the record gives us

reason to think that our ordinary [] presumption that the district court knew and

applied the law is misplaced.” 

Here, the district court reviewed

everything available to it, considered the information Mr. Kinchion asked it to

consider, and weighed the § 3553(a) factors to fashion a sentence it found

appropriate. Mr. Kinchion’s contention that the court did not conduct a de novo

sentencing is not supported by the record.

      Mr. Kinchion also asserts that the district court miscalculated his base

offense level because it used cocaine base to determine the offense level, rather

than the cocaine powder for which he was convicted. We observed in Kinchion

II, 271 Fed. Appx. at 804 n.3, that “[t]here is no logical inconsistency between a

person possessing powder cocaine, and that same person having the intent to

convert the powder to crack at some point in the future.” Although Mr. Kinchion

does not couch his current argument as a Sixth Amendment violation as he did in

Kinchion II, there is very little substantive difference between his argument and

the one we rejected in his previous appeal. Nevertheless, we entertain his

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contention that he is being sentenced for a substance that, he claims, “never

existed, period.” Aplt. Br. at 18.

      “Under the guidelines, it is proper to sentence a defendant under the

quantity table for cocaine base if the record indicates that the defendant intended

to transform powdered cocaine into cocaine base.” United States v. Angulo

Lopez, 

, 1511 (10th Cir. 1993). Here, the record indicates precisely

that. There was substantial evidence that Mr. Kinchion was in the business of

selling crack cocaine. Both at trial and at sentencing, witnesses testified that Mr.

Kinchion routinely purchased powder cocaine and converted it into crack.

Kinchion II, 271 Fed. Appx. at 800-01; Tr. Tran. at 140-43, 146-48, 363, 366-67,

390-93, 569-72.

      All of the evidence presented for consideration on the issue of cocaine

powder versus crack cocaine clearly indicated that but for the arrest of defendant,

he would have taken the cocaine powder, rocked it up into crack cocaine, and

redistributed it. The sentencing court appropriately determined Mr. Kinchion is

accountable for the drugs attributable to him that were reasonably foreseeable

both as to type and quantity.

      We AFFIRM the judgment and sentence of the district court.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge

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