F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 28, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-3386
v. (D.C. No. 04-CR-20034-KHV)
(Kansas)
A N TH O NY L. PIN IO N ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Anthony Pinion appeals the imposition of a 13-month sentence to run
consecutively to a 15-month sentence imposed by the District Court for the
W estern District of M issouri. W e affirm.
M r. Pinion was convicted of bank robbery in the W estern District of
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
M issouri and sentenced to 33 months incarceration followed by 3 years of
supervised release. M r. Pinion was subsequently charged with escaping from a
halfway house in violation of 18 U.S.C. § 751, and pled guilty in the District of
Kansas. The district court in Kansas sentenced M r. Pinion to a prison term of 12
months and 1 day followed by 2 years of supervised release. The supervised
release was to run concurrently to the term of supervised release imposed by the
district court in M issouri for the underlying robbery conviction.
M r. Pinion was released from custody on February 25, 2005, after having
completed the 12-month and 1-day term imposed in Kansas. He then began
serving his two concurrent terms of supervised release. M r. Pinion tested positive
for methamphetamine use in M arch, and he tested positive for cocaine use in
April. He also failed to find employment, submit urine samples, and appear for
counseling sessions, all in violation of his terms of supervised release. As a
result of these violations, M r. Pinion was ordered to enter a halfway house. W hen
he failed to do so, warrants were issued for his arrest in both the District of
Kansas and the W estern District of M issouri.
On August 12, 2005, the district court in M issouri revoked M r. Pinion’s
supervised release and sentenced him to 15 months incarceration with no term of
supervised release to follow. The 15-month term exceeded the applicable
guideline range by 4 months. On October 3, the district court in Kansas revoked
M r. Pinion’s supervised release and sentenced him to 13 months incarceration to
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run consecutively to the 15-month sentence imposed by the M issouri court. The
13-month sentence was within the applicable guideline range of 7 to 13 months.
On appeal, M r. Pinion contends the Kansas district court abused its
discretion by imposing the 13-month sentence to run consecutively to the 15-
month sentence. He further claims the sentence is unreasonable because the
district court failed to articulate reasons for imposing a consecutive sentence.
As we noted in United States v. Rodriguez-Q uintanilla, 442 F.3d 1254,
1256 (10th Cir. 2006) (emphasis added) (citations and quotations omitted):
Under 18 U.S.C. § 3584(a), a district court has the discretion
to impose consecutive or concurrent sentences. The district court’s
discretion is guided by the factors delineated by 18 U.S.C. § 3553(a),
which include the characteristics of the offense and the defendant,
the need for deterrence and the protection of the public, and, in cases
involving a violation of supervised release, the applicable guidelines
or policy statements issued by the Sentencing Commission. Like the
post-Booker Guidelines, policy statements regarding supervised
release are advisory in nature. The applicable policy statement
contained in § 7B1.3(f) recommends that: Any term of imprisonment
imposed upon the revocation of supervised release shall be ordered
to be served consecutively to any sentence of imprisonment that the
defendant is serving, whether or not the sentence of imprisonment
being served resulted from the conduct that is the basis of the
revocation of probation or supervised release.
The district court’s imposition of a consecutive prison term is in accordance with
the advisory policy statement. M r. Pinion therefore “bears the burden to
demonstrate that the D istrict Court should exercise its discretion to impose
concurrent sentences in spite of that statement.” Id.
M r. Pinion asserts that the imposition of the consecutive sentences by the
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two district courts resulted in the imposition of a 28-month sentence for, in
essence, missing some drug tests and counseling sessions, remaining unemployed,
and testing positive on two occasions for drug use. Such a sentence, he argues, is
especially harsh in light of the 7 to 13-month guideline range he faced for the
same violation of one of his supervised releases.
But M r. Pinion violated not one, but two supervised releases. M oreover, he
violated them within weeks, if not days, of being released from custody. His
failure to report to the halfway house, although not technically an escape from
custody, mirrored his earlier conduct. Furthermore, the district court expressly
stated it was imposing a consecutive sentence at the top of the applicable
guideline range because it w as choosing not to order a supervised release.
Viewed in light of these considerations, we cannot say consecutive prison terms
constitute an abuse of discretion, or that the district court’s imposition of a
consecutive term was unreasonable. See id. at 1258.
M r. Pinion also argues he is entitled to a remand for resentencing because
the district court failed to adequately explain why it declined to order his 13-
month sentence to run concurrently with his 15-month sentence.
[T]he sentencing court is not required to consider individually each
factor listed in § 3553(a) before issuing a sentence. In addition, we
do not demand that the district court recite any magic words to show
us that it fulfilled its responsibility to be mindful of the factors that
Congress has instructed it to consider.
Id. at 1258-59 (citations and quotation marks omitted). In this case, prior to its
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ruling the district court specifically invited counsel for M r. Pinion to address the
issue of consecutive sentences. The court stated that a consecutive sentence was
appropriate when there was to be no supervised release to follow. Rec., vol. II at
11. The court also heard M r. Pinion’s counsel argue that the sentence was too
harsh in light of the underlying conduct, but it chose to impose a consecutive
sentence nonetheless. Id. (The sentence was reached after “taking into account
the violation, the characteristics, the sentence objective.”) Although, the court
could have stated its reasons for imposing the 13-month consecutive sentence
more clearly, given the facts of this case we are satisfied that the sentence was
not unreasonable.
W e A FFIR M .
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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