FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 16, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-3300
v. (D. Kansas)
WALTER L. GREGORY, (D.C. No. 04-CR-40132-RDR-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BRISCOE, 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 proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument.
Defendant and appellant Walter L. Gregory pled guilty in 2006 to being an
unlawful user of a controlled substance in possession of a firearm, in violation of
18 U.S.C. § 922(g)(3). He was sentenced to fifteen months’ imprisonment. The
*
This order and judgment is not binding precedent except under the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.
Bureau of Prisons released Gregory from custody on April 18, 2007, and he
commenced service of two years of supervised release. When he violated the
terms of his supervised release, his supervised release was revoked and he was
sentenced to eight months’ imprisonment, followed by one year of further
supervised release. Arguing that the district court’s articulated rationale for
imposing the eight-month sentence was not supported by the record, Gregory
argues his sentence was procedurally unreasonable. We affirm the sentence.
BACKGROUND
On September 20, 2008, while Gregory was serving his term of supervised
release for his initial offense of firearms possession, Gregory’s probation officer
filed a petition seeking to revoke Gregory’s supervised release on the ground that,
on September 17, 2008, Gregory had left the judicial district without the
permission of the court or the probation officer. 1 On October 16, 2008, the
1
As the district court stated in its written order recording its oral ruling at
sentencing:
The violation report also charged defendant with three other
violations to which defendant did not stipulate. Defendant was
charged with violating the mandatory condition that defendant not
commit another crime. This charge alleged that defendant was
arrested near Bethany, Missouri on September 18, 2008 as a
passenger in a vehicle containing a substantial amount of marijuana
and cocaine. There were two other people in the vehicle. Defendant
was charged with committing another crime on the basis of his arrest
for driving under the influence in Kansas City, Missouri on July 20,
(continued...)
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district court conducted a hearing on the allegation, at which Gregory stipulated
that he had left the judicial district without permission. That constituted a Grade
C supervised release violation. 2 The district court accepted Gregory’s stipulation
and revoked his supervised release.
In preparation for sentencing, the district court observed that Gregory’s
criminal history was a category III, which, with his Grade C violation, yielded an
advisory Guidelines sentence of five to eleven months. When the court asked the
parties to comment on sentencing, the government recommended that Gregory
receive an eight-month sentence. Gregory proposed a “sentence of three months
in the halfway house in Kansas City and then the remaining two months to be
served on paper with no additional paper to follow.” Tr. of Final Revocation Hr’g
at 6, R. Vol. 2 at 9. He listed four reasons for the lighter sentence: (1) it was
consistent with his relatively moderate fifteen-month sentence for his original
crime; (2) it reflected the marginal gravity of the actual conduct; (3) it was
1
(...continued)
2008. Finally, defendant was alleged to have violated the special
condition that he abstain from alcohol, again on the basis of the
arrest for driving under the influence. No evidence was presented as
to these alleged violations.
Order at 1-2, R. Vol. 1 at 28-29.
2
Pursuant to United States Sentencing Commission, Guidelines Manual
(“USSG”) §7B1.1(a)(3), a Grade C violation of supervised release is “conduct
constituting (A) a federal, state, or local offense punishable by a term of
imprisonment of one year or less, or (B) a violation of any other condition of
supervised release.”
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consistent with the Sentencing Commission’s emphasis on non-prison sentences;
and (4) Gregory’s individual circumstances justified a low sentence.
The court then imposed a sentence of eight months, and extended the period
of Gregory’s supervised release by one year. The court explained its sentence as
follows:
The highest . . . grade of violation is a C. The criminal history
category is 3. The policy statement in this case would be five to 11
months. I’m going to sentence the defendant to eight months in this
case, and I’m going to place him on one year of supervised release
following service of his sentence.
I’ve considered the nature and the circumstances of these
violations, and the Court intends, of course, to revoke the
defendant’s supervised release and, as I’ve said, sentence him to
eight months in confinement. The Court determines that the
defendant has been around criminal conduct similar to the nature—
to his original offense of conviction and has failed to comply with
the supervised release conditions.
Tr. of Final Revocation Hr’g at 10-11, R. Vol. 2 at 13-14.
Gregory announced his objection to the sentence, arguing it was both
“substantively and procedurally unreasonable.” Id. at 15. The gist of his
argument was that the court based its sentence on the allegation that Gregory was
caught in a car full of drugs, and thus that Gregory had been “around criminal
conduct similar to” his original offense. But, as the record indicates, Gregory
only actually stipulated to being outside the judicial district without permission,
and that was therefore the only record evidence of his supervised release
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violation. The government then inquired whether, in view of Gregory’s
procedural objection to the sentence, the Court could:
state on the record whether or not it considered the Chapter 7 policy
statements in coming to the sentence that it did and also whether it
considered the 3553(a) factors in coming to the sentence that it did,
including the defendant’s characteristics, the nature of the . . .
offense, the need for deterrence, the need for rehabilitation, et cetera.
If the Court can make that statement on the record, I think that may
clear up the procedural reasonableness challenge.
Id. at 15-16. The district court responded, “I’m ready to make that statement, and
I think that I have considered all of those things, and I want to continue the
sentence as I have ordered it to be made.” Id. at 16. In its written order, entered
the next day, the court stated as follows:
Defendant has a criminal history category of III. The
stipulated violation is a Grade C violation. So under the policy
statement of the Sentencing Guidelines the sentencing range is 5 to
11 months. The court decided to sentence defendant to 8 months
with a one-year term of supervised release.
Prior to imposing sentence the court listened to government
counsel recommend a sentence which was the same as that imposed
by the court. The court also listened to defense counsel argue that a
lesser sentence should be imposed in light of: the minor nature of
the stipulated violation; the relatively minor nature of the offense of
conviction; the trend toward seeking alternatives to incarceration;
and the absence of evidence of a drug problem.
When the court imposed the sentence in this matter the court
indicated that one of the factors the court considered was that
defendant had been “around” criminal activity.
After imposition of sentence, defense counsel raised a
procedural and substantive objection to the sentence. The
government counsel then asked the court to state for the record that
the court had considered the Chapter 7 policy statements of the
Guidelines and the factors listed in 18 U.S.C. § 3553. The court
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responded that those matters had been considered in rendering the
sentence imposed by the court.
The court reiterates that after considering the nature and
circumstances of defendant’s stipulated violation as well as
defendant’s criminal history, the policy statements of Chapter 7 of
the Sentencing Guidelines and the factors listed in § 3553, the court
believes a sentence in the mid-range suggested by the Guidelines is
the appropriate sentence in this matter.
Order at 2-3, R. Vol. 1 at 29-30. This appeal followed.
DISCUSSION
Gregory challenges his sentence as procedurally unreasonable, because he
claims that the district court’s only “articulated rationale” for the sentence—that
Gregory had “been around criminal conduct similar to the nature [of] his original
offense”—was not supported by the record. He appears to make no substantive
challenge to the reasonableness of his sentence.
We review revocation sentences for procedural and substantive
reasonableness. A district court imposes a procedurally reasonable revocation
sentence when it properly considers the sentencing factors outlined in 18 U.S.C.
§ 3583(e), which incorporates several of the sentencing factors contained in 18
U.S.C. § 3553(a). See United States v. Contreras-Martinez, 409 F.3d 1236, 1242
& n.3 (10th Cir. 2005). A court must also consider the policy statements
contained in Chapter 7 of the Guidelines in imposing a sentence following a
revocation of supervised release. See United States v. Cordova, 461 F.3d 1184,
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1188 (10th Cir. 2006) (“In imposing a sentence following revocation of
supervised release, a district court is required to consider both Chapter 7’s policy
statements . . . as well as a number of the factors provided in 18 U.S.C.
§ 3553(a).”) (citing United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir.
2005); 18 U.S.C. § 3583(e)). “We do not . . . require that the district court recite
any magic words to show us that it fulfilled its responsibility to be mindful of the
factors [in § 3553(a).]” United States v. Chavez-Calderon, 494 F.3d 1266, 1268
(quotations omitted), cert. denied, 129 S. Ct. 185 (2008).
Gregory’s argument is two-fold: “First, factfinding which relies on
evidence not in the record is clearly erroneous. Second, a sentence that relies on
clearly erroneous factfinding is unreasonable and must be reversed.” Appellant’s
Br. at 5. We perceive no erroneous factfinding in the district court’s imposition
of the sentence in this case. The district court noted that Gregory had “been
around criminal conduct similar to” his original offense, but also noted that he
had “failed to comply with the supervised release conditions.” Tr. of Final
Revocation Hr’g at 11, R. Vol. 2 at 14. There is no dispute that, as Gregory
stipulated, he violated the terms of his supervised release by going outside the
judicial district without permission. Thus, even if it was error to refer to
Gregory’s proximity to drugs as “similar” to his prior criminal conduct and as
some sort of factual “finding” supporting the sentence imposed, any such error
was harmless. It is clear that the court sentenced Gregory for violating a term of
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his supervised release, which he indisputably did. Furthermore, as the court
indicated in response to the government’s inquiry at the hearing, and as explicitly
stated in the court’s written order memorializing the sentence, the court
considered the Chapter 7 policy statements and the appropriate § 3553(a) factors
in reaching the sentence, which was in the middle of the advisory Guideline
range. Procedural reasonableness requires nothing more.
CONCLUSION
For the foregoing reasons, the sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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