FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 19, 2009 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 08-6056 v. (W.D. Oklahoma) GARY W. FLANDERS, (D.C. No. 5:03-cr-00243-F-1)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.

Gary Flanders was convicted on two counts of misapplication of bank

funds, see 18 U.S.C. § 656; two counts of scheming to defraud a bank, see id.

§ 1344(1); making a false entry in bank records, see id. § 1005; and conspiracy to

make a false statement to a bank, see id. § 371. His undisputed sentencing

guideline range was 51 to 63 months’ imprisonment. The district court varied

upward, imposing a 77 months’ sentence.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Mr. Flanders’ sole issue on appeal is that his sentence was substantively

unreasonable. We have reviewed his arguments and disagree.

The sentence imposed is AFFIRMED.

ENTERED FOR THE COURT

Harris L Hartz Circuit Judge

-2- 08-6056 - United States v. Flanders

O’BRIEN, J. concurring.

In a series of ceremonial rites the leveling forces of the guidelines, their

hearthstone, were sacrificed on the altar of sentencing discretion and appellate

courts rendered impotent. See Spears v. United States, 129 S. Ct. 840 (2009);

Gall v. United States, 128 S. Ct. 586 (2007); Kimbrough v. United States, 128 S. Ct. 558 (2007); United States v. Booker, 543 U.S. 220 (2005).