FILED
United States Court of Appeals
Tenth Circuit
April 13, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-1389
v. (D.Ct. No. 1:07-CR-00496-JLK-1)
(D. Colo.)
BRANDY MERIE KELLER,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BARRETT, ANDERSON, and BRORBY, Senior 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.
Defendant-Appellant Brandy Merie Keller appeals her sentence following
*
This order and judgment is not binding precedent except under the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.
revocation of her supervised release. She asserts the district court abused its
discretion in imposing a variant sentence above the advisory United States
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range, resulting in a
substantively unreasonable twenty-four-month sentence. We exercise jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Ms. Keller’s
twenty-four-month term of imprisonment following revocation of her supervised
release.
I. Procedural Background
According to the uncontested “Supervised Release Violation Report”
prepared by a federal probation officer, Ms. Keller pled guilty in 2005 in the
federal court, district of Oregon, to making a false material declaration to a
federal grand jury in violation of 18 U.S.C. § 1623; she received a sentence of
twelve months and one day imprisonment and three years supervised release. Ms.
Keller’s term of supervised release began on July 7, 2006, and, thereafter, in
December 2007, jurisdiction over her and her supervised release transferred to the
federal court in Colorado, where she resumed her residency. Besides standard
conditions concerning supervised release, such as not committing any federal or
state crime, the special conditions of her release required her: (1) cooperation in
collection of DNA; (2) employment subject to approval by a probation officer; (3)
residence and participation in an inpatient drug treatment program for a period
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not to exceed ninety days; (4) use of psychotropic medication; and (5)
participation in other substance abuse treatment, including submission to not more
than eight drug tests each month.
In July 2006, after her release from prison, the probation office referred
Ms. Keller to a mental health center in Grand Junction, Colorado, for substance
abuse treatment, where she participated in individual and group substance abuse
treatment through August 2007. During the early portion of her supervised
release, Ms. Keller lived with her mother and then-four-year-old son in Clifton,
Colorado.
In August 2006, she obtained employment as a cook at a restaurant in
Grand Junction but for undisclosed reasons was fired in May 2007. In June 2007,
Ms. Keller began working for a catering company in Grand Junction. On
September 10, 2007, Ms. Keller violated the terms of her supervised release by
possessing and using a controlled substance, specifically cocaine, and was again
referred to the mental health center in Grand Junction for group substance abuse
treatment. A month later, in October 2007, the conditions of her supervised
release were modified so that the special condition she participate in inpatient
drug treatment was removed and a special condition she reside in a residential
reentry center for a period of up to 180 days was added. In October 2007 she also
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enrolled at a technical school to become an auto mechanic, where she maintained,
at least for a year, an A average and completed the program in February 2009.
During this time, she continued to work at the same catering business with which
she began employment in June 2007.
In January 2008, her treatment at the mental health treatment center was
modified to include individual treatment to address family issues, which she
completed in May 2008. In July 2008, Ms. Keller and her son moved in with
friends for a month until they moved into their own apartment in Clifton in
August 2008.
Starting in late 2008, Ms. Keller’s violations of her supervised release
escalated. On November 17, 2008, Ms. Keller violated the terms of her
supervised release by possessing and using a controlled substance, specifically
marijuana, and was again referred to a mental health center in Grand Junction for
group substance abuse treatment. In addition, prior to March 2009, Ms. Keller
was arrested and charged in three state cases for: (1) driving under restraint,
driving under the influence of alcohol, and failure to yield the right of way; (2)
driving under restraint–alcohol related and defective vehicle; and (3) a felony
charge of vehicle eluding, second-degree aggravated motor vehicle theft,
obstructing a peace officer, resisting arrest, failure to obey a traffic control
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device, failure to signal for a turn, and reckless driving. 1 As a result, in March
2009, her treatment was again modified to increase her group substance abuse
counseling. In May 2009, treatment was once again modified to increase
counseling in response to family issues. Also, from January 29, 2009, through
June 2, 2009, Ms. Keller failed to participate in her treatment program eight times
– each in violation of the conditions of her supervised release. In addition, on
April 24, 2009, she tested positive again for marijuana, which she denied using.
On June 3, 2009, her substance abuse treatment was terminated based on both her
eight unexcused absences from substance abuse treatment and her denial of using
marijuana.
On June 24, 2009, a warrant issued charging Ms. Keller with the following
five violations of her supervised release: (1) possession and use of cocaine on
September 10, 2007; (2) possession and use of marijuana on November 17, 2008;
(3) possession and use of marijuana on April 24, 2009; (4) failure on eight
occasions, from January 29, 2009, to June 2, 2009, to participate in her drug
treatment program; and (5) failure to submit written reports in March, April, and
May 2009. In addition to the foregoing, a non-extraditable warrant issued for Ms.
Keller in Oregon for nonpayment of court costs.
1
While the first two of these cases were set for jury trial in December
2009, and the last one was set for jury trial in October 2009, neither party has
advised this court of the disposition of those cases.
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Following Ms. Keller’s arrest on July 27, 2009, she waived her right to
both preliminary and detention hearings; thereafter, the probation officer prepared
the “Supervised Release Violation Report,” calculating her Guidelines range at
four to ten months imprisonment and supervised release at two to three years. In
addition, the probation officer noted Ms. Keller could not receive a sentence over
two years imprisonment, under 18 U.S.C. § 3583(e)(3), because the underlying
offense was a Class D felony, and, further, she could not receive a term of
supervised release of more than three years because the statutory maximum
supervised release of three years was imposed at sentencing. Following these
calculations, the probation officer made the following observations and
recommendations:
The defendant has been on supervision for three years. During that
time, she has had three positive urine screens for cocaine and
marijuana. She participated and completed substance abuse
treatment twice and yet continued to use drugs. The third course of
treatment was terminated due to unexcused absences and her denial
regarding the use of marijuana. The defendant failed to pay court
costs for her Oregon state probation and a nonextraditable warrant
has been issued. She has two traffic cases and a felony case pending
in Mesa County, Colorado, for alleged law violations.
During her time on supervision, the defendant had maintained
employment and completed the automotive course through IntelliTec
College. She was the sole provider for her son and her residence was
stable.
The defendant has shown through various aspects of her life that she
can be a productive hard worker and provide for her son. In other
aspects, she shows a disregard for the law and lacks responsibility.
A sentence to time served will impress upon the defendant the
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seriousness of supervision and the negative impact of drug use. This
sentence is below the guidleline [sic] range and felt appropriate
because the use of drugs was spread out over a three year time
period, the success she had in college, and that she had maintained
employment. Also, she is likely to receive a significant sentence on
her state case[s] due to her prior record. The defendant is a marginal
candidate for supervision and treatment given her continuing drug
use and new law violations.
R., Vol. 3 at R-1.
At Ms. Keller’s revocation hearing, government counsel noted he had read
the “Supervised Release Violation Report” and had “nothing to add.” Ms.
Keller’s counsel did not object to the report and, instead, asked the court to
follow the probation officer’s recommendation of a sentence of time served of
thirty-one days, based on the fact Ms. Keller did well in school and maintained
employment and wanted to regain custody of and support her son, who was in her
mother’s care. After her counsel’s argument, Ms. Keller declined the opportunity
to make a statement to the court.
At the conclusion of the hearing, the district court stated it was not going to
follow the probation officer’s recommendation, explaining:
I hear this so often from people that have children come in and say
they want to be back with their children and provide them support.
That’s just not true. Whenever you wanted to do something else, you
did it, and you’ve been gaming this system for a long time, and I’m
not going along with that. The supervised release has been a
complete failure, and you’ve been given more and more
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opportunities.
I find that these are Grade C violations and your Criminal
History Category is II, which results in a recommended sentence of
four to ten months under the policy statements issued by the
sentencing commission. I’ve reviewed these reports, and I do not
concur with that. There have been repeated violations and a
complete lack of interest in trying to comply with the conditions of
probation.
Based on that finding that the defendant has violated the
conditions of supervised release as alleged in the probation officer’s
[report], it is ordered and adjudged that the defendant’s supervised
release is revoked and the defendant is sentenced to two years
imprisonment. ... There will be no supervised release following
service of sentence.
R., Vol. 2 at 14-15. Thereafter, the district court entered a formal judgment and
commitment order on revocation of supervised release, recounting Ms. Keller’s
violations of supervised release and sentencing her to twenty-four months
imprisonment and no supervised release.
II. Discussion
On appeal, Ms. Keller contends the district court abused its discretion in
imposing a variant sentence above the Guidelines range of four to ten months
imprisonment by imposing a twenty-four-month sentence. She argues such a
sentence is substantively unreasonable as evidenced by the fact it is twice the
length of her original sentence and twice the length of the applicable Guidelines
range. She suggests the district court imposed the maximum sentence for three
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manifestly unreasonable criteria because it: (1) found her desire to be with her
son insincere; (2) thought she was “gaming the system”; and (3) concluded her
supervised release to be a complete failure. She also intimates a twenty-four-
month sentence is unreasonable considering the fact she had almost completed her
three years of supervised release under close supervision of the probation office.
The government opposes the appeal.
In reviewing a sentence imposed after revocation of supervised release, we
review the district court’s factual findings for clear error and its legal conclusions
de novo. United States v. Tsosie, 376 F.3d 1210, 1217-18 (10th Cir. 2004). We
will not reverse a sentence following revocation of supervised release if the
record establishes the sentence is “reasoned and reasonable.” United States v.
Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005). As to the principle
involving revocation of supervised release and resentencing, we have held “[i]t is
well-settled that supervised release is part of the penalty for the initial offense.”
See United States v. Cordova, 461 F.3d 1184, 1186 (10th Cir. 2006) (internal
quotation marks omitted). When supervised release is revoked and a sentence
imposed, the court is “merely requiring the defendant to serve in prison all or part
of the term of supervised release.” Tsosie, 376 F.3d at 1216 (internal quotation
marks omitted).
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Thus, under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583,
when a person violates the conditions of supervised release, the district court may
modify the conditions of release or revoke the term of supervised release and
impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.
2004); 18 U.S.C. § 3583(e)(2) and (3); Fed. R. Crim. P. 32.1(b); U.S.S.G.
§ 7B1.3. In imposing a sentence following revocation of supervised release, the
district court is required to consider both the Guidelines Chapter Seven policy
statements as well as the factors provided in 18 U.S.C. § 3553(a). See Cordova,
461 F.3d at 1188. The Chapter Seven policy statements apply to violations of
probation and supervised release and include advisory guideline ranges for
sentences following revocation of supervised release. See generally U.S.S.G. Ch.
7 and §§ 7B1.3 and 7B1.4.
The 18 U.S.C. § 3553(a) sentencing factors include:
The nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence imposed to
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.
Cordova, 461 F.3d at 1188-89 (quoting Contreras-Martinez, 409 F.3d at 1242
n.3) (emphasis added). “The sentencing court ... is not required to consider
individually each factor listed in § 3553(a), nor is it required to recite any magic
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words to show us that it fulfilled its responsibility to be mindful of the factors
that Congress has instructed it to consider before issuing a sentence.” Id. at 1189
(internal quotation marks omitted). Instead, the district court must “state in open
court the reasons for its imposition of the particular sentence,” 18 U.S.C.
§ 3553(c), and satisfy us that it “has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356 (2007). Finally, under § 3553(a), a defendant’s
history and characteristics are included in the list of sentencing factors considered
in revocation proceedings, so that “[t]he very language of the statute instructs the
sentencing court to consider the defendant’s ‘history and characteristics.’”
United States v. Hahn, 551 F.3d 977, 985 (10th Cir. 2008) (quoting 18 U.S.C.
§ 3553(a)(1)), cert. denied, 129 S. Ct. 1687 (2009).
In this case, Ms. Keller did not object to revocation of her supervised
release or the facts presented in the “Supervised Release Violation Report” on
which the district court relied in imposing her sentence. In that report, the
probation officer recounted that during her three years of supervised release, Ms.
Keller: (1) tested positive three times for cocaine or marijuana, (2) had eight
unexcused absences from the substance abuse program; (3) did not complete her
third round of substance abuse treatment because it was terminated due to her
own actions; and (4) was arrested and charged twice for driving under the
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influence and for a felony offense involving second-degree aggravated motor
vehicle theft, obstructing a peace officer, and resisting arrest. In recounting these
circumstances, the probation officer noted Ms. Keller’s disregard for the law and
lack of responsibility and the need to impress upon her the seriousness of
supervision and the negative impact of drug use.
It is evident the district court relied on these circumstances in departing
upward from the imprisonment range set out in Chapter Seven, noting Ms.
Keller’s “repeated violations” and “complete lack of interest in trying to comply
with the conditions of probation,” despite the many “opportunities” afforded her.
R., Vol. 2 at 15. In considering her history and characteristics, it not only
considered this cumulative conduct of non-compliance with the terms of her
supervised release but the fact that she had been given opportunities each time she
tested positive for an illegal substance to enter substance abuse treatment and
continue her supervised release. In other words, rather than have revocation
proceedings brought against her the three times she tested positive, she was given
opportunities to correct her problems and remain on supervised release. The
district court also considered and rejected the probation officer’s and her
argument she deserved a sentence of time served based on her steady employment
and completion of her training program. Instead, it determined her ongoing
disregard of the law during her supervised release, as evidenced by her multiple
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violations and failure to take advantage of the opportunities afforded her,
warranted an upward variant sentence, despite her continued employment and
training.
As Ms. Keller contends, on considering her violations and failure to take
advantage of the opportunities afforded her, the district court found her expressed
desire to be with her son insincere, she had been “gaming” the system, and her
supervised release to be a complete failure. However, because the district court
presided over Ms. Keller’s revocation, it was in a better position than us to assess
her sincerity and the extent and description of her abuse of supervised release.
Moreover, the terms it chose to describe her abuse, inappropriate or not, do not
change the fact that she continued to repeatedly violate the terms of her
supervised release, even after being afforded opportunities to correct her
problems and proceed on supervised release.
While Ms. Keller argues her sentence is substantively unreasonable because
it is twice the length of her original sentence and twice the length of the
applicable Guidelines range, we note the district court rejected the probation
officer’s recommended sentence of time served, as well as the advisory
Guidelines sentence of four to ten months imprisonment, as not adequately
reflecting her multiple infractions. Furthermore, the variant sentence it imposed
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did not exceed the maximum sentence of two years allowed by law See 18 U.S.C.
§ 3583(e).
In addition, Ms. Keller’s argument her sentence is unreasonable because
she almost completed her three years of supervised release ignores the fact that
the conditions of supervised release applied to all three years, and most of her
violations occurred during the last six months of her supervised release, including
testing positive for marijuana, allegedly driving under the influence on two
occasions, allegedly participating in felony auto theft, and missing eight of her
substance abuse treatment sessions. While, commendably, she started her
supervised release by completing substance abuse treatment, obtaining
employment, and receiving technical training, she nevertheless repeatedly failed
to comply with the conditions of her supervised release, especially toward the end
of the time imposed. Thus, a review of the record leaves us satisfied the district
court considered the parties’ arguments, had a reasoned basis for revoking her
supervised release, and imposed a sentence which did not exceed the maximum
allowable sentence. For the reasons discussed, we conclude the district court
imposed a reasoned and reasonable sentence that does not warrant reversal on
appeal.
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III. Conclusion
Accordingly, we AFFIRM Ms. Keller’s twenty-four-month term of
imprisonment following revocation of her supervised release.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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