F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 18 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6416
(D.C. No. 00-MD-275)
KELLY GENE STAPP, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, PORFILIO, and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendant Kelly Gene Stapp appeals his sentence of twenty-four months’
imprisonment, imposed after his supervised release was revoked. We affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant’s supervised release was revoked based on his (1) failure to
submit urine samples on April 10, 18, and 26, 2000, and May 2, 17, and 22, 2000;
(2) failure to notify his probation officer of his change of address; (3) failure to
submit monthly reports for March, April, and May of 2000; and (4) commission
of a new offense of possessing a controlled substance. Although Policy Statement
7B1.4(a) of the United States Sentencing Guidelines suggested a range of
imprisonment from twelve to eighteen months, the district court sentenced
defendant to twenty-four months’ imprisonment, based on “the violations as
enumerated, the substantial disregard of all of those requirements imposed by the
terms of supervised release, and . . . nine prior convictions.” R. vol. 2 at 4.
Defendant argues that the court did not give adequate reasons for departing
from the sentencing guidelines policy statement and that the record does not
demonstrate that the court considered the factors listed in 18 U.S.C. § 3553(a).
“In reviewing the specific sentence of imprisonment imposed by the district court
after revocation of defendant’s supervised release and the court’s explanation for
that sentence, we will not reverse if it can be determined from the record to have
been reasoned and reasonable.” United States v. Lee , 957 F.2d 770, 774 (10th
Cir. 1992). Further, the district court is not required to expressly weigh on the
record the sentencing factors identified in § 3553(a), and we will assume the court
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considered each of the factors absent a contrary indication in the record. United
States v. Rose , 185 F.3d 1108, 1111 (10th Cir. 1999).
We hold that the district court’s reasons for imposing the two-year
maximum sentence under 18 U.S.C. § 3583(e)(3) were more than adequate and
reasonable, given the number of times defendant violated his supervised release,
his extensive criminal history, his total disregard of the supervised release
requirements, the need to afford adequate deterrence to criminal conduct, and the
need to protect the public from further crimes of the defendant. See 18 U.S.C.
§ 3553(a). In addition, we are satisfied that the court considered the sentencing
factors set forth in § 3553(a).
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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