FILED
United States Court of Appeals
Tenth Circuit
May 29, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-6230
v. (D.Ct. No. 5:96-CR-00186-R-1)
(W.D. Okla.)
BLAINE CHARLES MOORE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BARRETT, ANDERSON, and BRORBY, 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 Blaine Charles Moore appeals his 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This order and judgment is not binding precedent except under the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 his supervised release on grounds the district court erred by: (1)
imposing both a term of incarceration and additional supervised release following
revocation of his original term of supervised release; and (2) imposing an
unreasonable sentence by failing to adequately explain his sentence in
conjunction with the sentencing factors in 18 U.S.C. § 3553(a) and Chapter Seven
of the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). We
exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and
affirm Mr. Moore’s sentence.
I. Procedural Background
In 1997, Mr. Moore pled guilty to one count of possession of a machine
gun in violation of 18 U.S.C. § 922(o). The district court sentenced him to
ninety-six months imprisonment and three years supervised release. Mr. Moore’s
supervised release began on July 5, 2007. On August 27, 2008, the government
petitioned the district court for a warrant or summons concerning the revocation
of Mr. Moore’s supervised release based on multiple alleged violations. At a
revocation hearing on October 1, 2008, the government withdrew its allegations
concerning his arrest for breaking and entering and arrest for assault and
aggravated battery during his supervised release. 1 Mr. Moore stipulated to the
1
The transcript of the hearing shows the government agreed to withdraw
as violations Mr. Moore’s breaking and entering arrest, based on Mr. Moore’s
(continued...)
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remaining violations, admitting he: (1) tested positive for cocaine on June 6,
2008; (2) committed a theft crime while on supervised release; (3) failed to notify
the federal probation officer within seventy-two hours of his arrests for driving
under the influence and for breaking and entering; (4) failed to notify the federal
probation officer of his change of residence; and (5) failed to submit any
verifiable community service hours as instructed by the federal probation officer.
Based on Mr. Moore’s stipulation to those violations, the district court found by a
preponderance of the evidence he violated the terms of his supervised release and
ordered his term of supervised release revoked. During the remaining portion of
the revocation hearing, counsel for both parties presented argument concerning
the sentence to be imposed and Mr. Moore also addressed the district court.
Specifically, Mr. Moore’s counsel argued for a sentence below the
Guidelines range of eight to fourteen months imprisonment, requesting a sentence
of three months incarceration. In support, he pointed out Mr. Moore tested
positive for cocaine only once, shortly after his release from prison; had gone to
aftercare with no further drug use violations; and committed petty theft for
stealing a hot water heater to install in a trailer he was living in. Mr. Moore then
1
(...continued)
counsel’s representation that local authorities were not prosecuting him on that
charge, and his assault and aggravated battery arrest, given Mr. Moore’s intention
to contest that charge, for which he had not yet been convicted.
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addressed the district court, stating he wanted to get back to work and know his
daughter, had associated with the wrong crowd, and was tired of being in prison.
The district court responded by noting Mr. Moore did not “have a very good
record.” R., Vol. 2 at 8. During its colloquy with Mr. Moore, the district court
asked, “[w]hat’s your problem, Mr. Moore? ... I have gone back and reread the
presentence report and you’ve got a terrible record.” Id. Finally, government
counsel addressed the court, arguing against a three-month below-Guidelines
sentence and pointing to Mr. Moore’s substantial drug and alcohol problem; his
four or five significant brushes with the law while on supervised release, which
included theft and assault; his association with the wrong crowd; and his failure
to make the right choices.
In imposing the sentence, the district court explicitly stated it had
considered the advisory Guidelines and also noted that it had reviewed all of the
records in the case and listened to counsels’ arguments and Mr. Moore’s
statement. It also addressed Mr. Moore, stating, “you do have a dismal record
and sometimes prison is the best place for people like you, I’m afraid.” Id. at 10.
It then sentenced Mr. Moore within the advisory Guidelines range to twelve
months imprisonment and twenty-four months supervised release.
II. Discussion
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On appeal, Mr. Moore contends the district court erred in imposing both a
term of incarceration and additional supervised release following revocation of
his original term of supervised release. In support, Mr. Moore argues his conduct
involving his original firearm conviction occurred prior to the effective date of
subsection (h) to 18 U.S.C. § 3583, which expressly authorizes imposition of an
additional term of supervised release after imprisonment following revocation of
the previous term of supervised release. Mr. Moore’s counsel acknowledges this
argument was not raised before the district court and is “foreclosed” by the
Supreme Court’s decision in Johnson v. United States, 529 U.S. 694 (2000), but
explains Mr. Moore specifically requested he present the argument for review on
appeal.
As counsel points out, Mr. Moore’s argument is precluded as a matter of
law. In Johnson, the Supreme Court concluded that, even prior to the addition of
subsection (h) to § 3583, the statute gave district courts “authority to order terms
of supervised release following reimprisonment.” See 529 U.S. at 713. For this
reason, the district court did not err in imposing a term of supervised release
together with a term of imprisonment following revocation of Mr. Moore’s
original supervised release.
Additionally, Mr. Moore contends on appeal the district court imposed an
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unreasonable sentence by failing to adequately explain his sentence. Specifically,
he contends the district court failed to consider the Guidelines Chapter Seven
policy statements or the 18 U.S.C. § 3553(a) factors and that the record does not
otherwise disclose whether his sentence was clearly reasonable and justified.
“In Gall, the Supreme Court identified ‘failing to consider the § 3553(a)
factors’ and ‘failing to adequately explain the chosen sentence’ as forms of
procedural error.” United States v. Smart, 518 F.3d 800, 803 (10 th Cir. 2008)
(quoting Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007)). In
reviewing a sentence imposed after revocation of supervised release, we review
the district court’s findings of fact for clear error and its legal conclusions de
novo. See United States v. Kelley, 359 F.3d 1302, 1304 (10 th Cir. 2004); see also
United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
However, when a defendant fails to raise a contemporaneous objection to the
district court’s allegedly inadequate explanation of the sentence imposed, we
review the district court’s determination only for plain error. See United States v.
Ruiz-Terrazas, 477 F.3d 1196, 1199 (10 th Cir. 2007). “Plain error occurs when
there is (i) error, (ii) that is plain, which (iii) affects the defendant’s substantial
rights, and which (iv) seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. (citation omitted).
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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 18 U.S.C. § 3583(e)(2)-(3); Fed. R. Crim. P. 32.1;
Kelley, 359 F.3d at 1304-05. As previously noted, under § 3582(h), “[w]hen a
term of supervised release is revoked and the defendant is required to serve a term
of imprisonment,” courts are expressly permitted to impose “a term of supervised
release after imprisonment,” and this principle implicitly applied even prior to the
enactment of subsection (h). See Johnson, 529 U.S. at 713.
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). United States
v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). The Chapter Seven policy
statements apply to violations of probation and supervised release and include
applicable Guidelines ranges for sentences following revocation of supervised
release. See U.S.S.G. Ch. 7 and § 7B1.4, p.s. 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;
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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 United States v. Contreras-Martinez, 409
F.3d 1236, 1242 n.3 (10th Cir. 2005)).
While the instant case involves a sentence following revocation of
supervised release, we take instruction from recent cases articulating the
principles applicable to a district court’s alleged error in failing to consider the
§ 3553(a) factors or explain the chosen sentence during the original sentencing.
The Supreme Court has “made clear that a district judge is not required to give an
exhaustive list of reasons” for the sentence imposed. United States v. Tindall,
519 F.3d 1057, 1065 (10 th Cir. 2008). However, a district court must provide
some basis for us to conclude 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, 127 S. Ct. 2456, 2468 (2007). In turn, unless a party
contests the Guidelines sentence generally under § 3553(a), the district court
normally does not need to give a lengthy explanation. See id. Additionally, when
a sentence falls within the Guidelines range, we have said § 3553(c) requires the
court to provide only a general statement in explaining the imposition of a
sentence. See Ruiz-Terrazas, 477 F.3d at 1199. If the sentence is within the
correctly-calculated Guidelines range, the sentence is presumptively reasonable,
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unless the defendant “rebut[s] this presumption by demonstrating that the
sentence is unreasonable in light of the other sentencing factors laid out in
§ 3553(a).” Kristl, 437 F.3d at 1054. Even in instances where a sentence is
imposed in excess of that recommended by the Chapter Seven policy statements,
we have determined it will be upheld “if it can be determined from the record to
have been reasoned and reasonable.” United States v. Rodriguez-Quintanilla, 442
F.3d 1254, 1258 (10 th Cir. 2006) (quotation marks and citation omitted).
In this case, Mr. Moore made no prior argument concerning the calculation
of the advisory Guidelines range, including application of the Chapter Seven
policy statements. Accordingly, the district court did not specifically discuss the
policy statements on which it relied, but generally stated that it had considered
the applicable advisory Guidelines in imposing Mr. Moore’s sentence. In absence
of an objection relating to the application of Chapter Seven of the Guidelines, the
district court was not required to provide a lengthy explanation as to its reliance
on those Guidelines.
In addition, while Mr. Moore did not specifically object to the calculation
of the Guidelines range, he did argue for a below-Guidelines sentence at the
revocation hearing based on the nature and circumstances of the offenses and his
history and characteristics, noting he: (1) only tested positive for cocaine once,
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shortly after his release from prison; (2) went to aftercare with no further drug
usage violations; (3) committed only petty theft; (4) wanted to get back to work
and know his daughter; (5) associated with the wrong crowd; and (6) was tired of
being in prison. The government responded by pointing to Mr. Moore’s
substantial drug and alcohol problem; his four or five significant brushes with the
law while on supervised release, which included theft and assault; his association
with the wrong crowd; and his failure to make the right choices. Clearly, these
are the specific factors the parties believed were relevant for presentation to the
district court and which it explicitly stated it had considered. Thus, when the
district court imposed a sentence within the Guidelines range, it is clear it
rejected Mr. Moore’s reasons for imposing a three-month, below-Guidelines-
range sentence and based its decision for a Guidelines-range sentence on the
government’s arguments and Mr. Moore’s history of recidivism and his criminal
conduct while on supervised release, as evidenced by the district court’s repeated
reference to his criminal history.
While a more comprehensive explanation might have aided this court in
concluding whether a reasoned basis existed for the district court’s twelve-month
sentence, it imposed a sentence within the recommended Guidelines range, which
requires only a general explanation of the reason for the sentence imposed. Even
if we determined a more comprehensive explanation was required, we can find no
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procedural error. This is because Mr. Moore cannot satisfy either the third or
fourth prong of the plain error analysis. To meet the third prong, he must
demonstrate his substantial rights were affected, which requires a showing the
result of the sentencing proceeding would have been different but for the asserted
error. See United States v. Romero, 491 F.3d 1173, 1179 (10 th Cir.), cert. denied,
128 S. Ct. 319 (2007). Nothing in the record or Mr. Moore’s argument indicates
the district court would have imposed a different sentence had it provided further
or more explicit reasoning for the sentence imposed. See id.
Alternatively, Mr. Moore has failed to establish the fourth prong of the
plain error analysis, which requires a showing his twelve-month sentence
seriously affected the fairness, integrity, or public reputation of judicial
proceedings. In order to make this showing, he must demonstrate the district
court’s limited explanation of his sentence was “particularly egregious” and a
failure to correct it would result in a “miscarriage of justice.” See United States
v. Gonzalez-Huerta, 403 F.3d 727, 736 (10 th Cir. 2005) (en banc). Here, Mr.
Moore received a sentence within the Guidelines range and the record is devoid of
any evidence sufficient to support a lower sentence. Therefore, Mr. Moore has
failed to make a showing his sentence is particularly egregious or that a
miscarriage of justice occurred.
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III. Conclusion
For these reasons, we AFFIRM Mr. Moore’s sentence of twelve months
imprisonment and twenty-four months supervised release.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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