FILED
United States Court of Appeals
Tenth Circuit
June 10, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 13-3287
v. (D.Ct. No. 2:10-CR-20002-KHV-DJW-1)
(D. Kan.)
CHRISTOPHER D. FULTON,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
submitted without oral argument.
Defendant-Appellant Christopher D. Fulton appeals his twenty-four-month
sentence following revocation of his supervised release. He asserts the district
*
This order and judgment is not binding precedent except under the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.
court abused its discretion by imposing a variant sentence above the advisory
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). He bases his
appeal on grounds the district court “relied on a legally defective trade-off notion,
substituting extra prison time for a term of supervised release” for the purpose of
punishing him for lack of remorse, resulting in a disproportionately severe
sentence in comparison with his criminal history and the nature of his offense.
We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291
and affirm Mr. Fulton’s twenty-four-month term of imprisonment.
I. Factual and Procedural Background
Mr. Fulton has a lengthy history with regard to the revocation of his
supervised release. In 2010, he pled guilty and received a conviction for being a
felon in possession of a firearm for which he received a fifteen-month sentence,
followed by a thirty-six-month term of supervised release conditioned, in part, on
his cooperation with his probation officer and prohibition regarding committing
new crimes and possessing firearms or illegal drugs. On November 25, 2011, Mr.
Fulton began supervised release, and during the first year he agreed to a
temporary transfer to a halfway house to resolve issues related to his continuing
unemployment and positive drug test. Thereafter, in early 2013, the government
filed a petition seeking revocation of Mr. Fulton’s supervised release, alleging he
illegally possessed prescription diuretic pills and broke halfway house rules,
including possession of an unauthorized cell phone, providing a false statement to
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a staff member, and refusing to obey a staff member’s order. On April 12, 2013,
following a hearing on the petition and Mr. Fulton’s stipulation to the violations,
the district court issued an order finding Mr. Fulton violated the terms and
conditions of his supervised release but ordered his supervised release be
continued because he obtained gainful employment and planned to reside with his
mother–a law enforcement detective.
A few months later, on June 28, 2013, the government filed a second
petition for revocation, alleging, in part, Mr. Fulton: 1) traveled for work
(outside the state) without obtaining advance permission from his probation
officer; 2) tested positive for marijuana and amphetamines; and 3) failed to
inform his probation officer of his second job at a night club where, according to
his Facebook page, he was “Head Security.” At the revocation hearing, Mr.
Fulton stipulated to all violations except his night club employment (but, at a later
hearing, admitted he had worked there on weekends before he obtained his full-
time job and had not reported it to his probation officer). Rather than revoking
his supervision, the district court conditioned his supervised release on his
returning to court every thirty days for a compliance review and warned him to
take the conditions of his supervision seriously or they would revisit his history
of violations “because the possibility is still out there that you will be revoked
and sent to prison.”
One month after the hearing, on August 20, 2013, Mr. Fulton appeared
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before the district court for his thirty-day compliance review, at which time it
noted his failure to comply with the conditions of travel by failing to provide
documentation for another work trip, warned him failure to do so in the future
would result in a violation of the terms of supervised release, and ordered him to
appear on September 18, 2013, for another compliance review hearing. Mr.
Fulton arrived late to that review hearing and was arrested and held in custody
until a hearing the next day; he was then held in custody an additional day due to
his failure to submit his monthly report and earnings verification. He was
released on September 20, 2013, after he provided his probation officer with the
necessary documents.
On October 24, 2013, the government filed another petition to revoke Mr.
Fulton’s supervised release based not only on his past violations but additional
violations, including allegations he possessed a firearm while driving a company
truck and used, without his employer’s permission, a company credit card at a
local bar to purchase alcohol, thereby failing to abstain from the possession of a
firearm and use of alcohol during his term of supervision. It also noted he was
terminated from his employment and was therefore unemployed, in violation of
the conditions of his supervised release. During a hearing on the matter, Mr.
Fulton stipulated to most of the violations and the government presented evidence
on those, as well as the firearm and alcohol use violations Mr. Fulton contested.
While his employer testified Mr. Fulton was not authorized to use the company
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credit card for the alcohol purchase, the government admitted it could not prove
Mr. Fulton drank the alcohol he purchased but argued his actions showed his
continued poor judgment. Other evidence showed employees besides Mr. Fulton
had access to the truck where the firearm was found. While his counsel
acknowledged Mr. Fulton had “tested [the court’s] patience several times by just
not following through with what he’s supposed to do,” she asked the court not to
place significant weight on the credit card or firearm issues. The government
pointed out the credit card use and firearm discovery incidents were merely in
addition to the other violations to which he stipulated.
In revoking Mr. Fulton’s supervised release and imposing a sentence, the
district court stated, in part:
Mr. Fulton, unfortunately I think we’re at the end of the road here. I
haven’t counted up the number of these status conferences we’ve had
but I feel like I have gone way out of my way to give you the benefit
of the doubt. I feel like you have conned me time and time again by
your smooth talk and your statements that you want to do better, that
you plan to do better and that you can do better.
Because of that, I’ve been reluctant to pull the rug out from
under you because you had a really good job that you said you
enjoyed and you said you were surrounded by people that were
making a positive impact in your life.
I guess I feel like [I] just haven’t been able to get through to
you that haphazard compliance with supervised release is not good
enough. And you had problems with supervised release from the
outset ....
At this point, I think the only alternative is to put you in prison
and put you in for a fairly long sentence ... that will not be followed
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by any supervised release. I frankly don’t think that you are trying
hard enough to succeed on supervised release to make it worth the
expenditure of resources in terms of money, the time of the probation
officer and definitely my time and that of the Court staff who have
had to deal with you over and over and over with the problems
you’ve presented.
Again, it’s not like any ... one thing taken in isolation ... but
it’s the cumulation of a lot of little things that you just don’t seem
willing to accept responsibility for. And as I heard you here this
afternoon, again, I heard you accept no responsibility for anything.
No responsibility for using the credit card, for drinking or not
drinking, for being in a bar at 12:30 [a.m.], for how that gun got in
your car ... for the things that are as simple as working with [the
probation officer] to get permission to travel when you know you
have to do that.
The district court then imposed a twenty-four-month sentence and, after
Mr. Fulton’s attorney’s objection, explained revocation was mandatory based on
his illegal possession of controlled substances and it based his sentence not only
on his violations but Mr. Fulton’s defiance of the court’s requirements during
supervised release, stating, “I am convinced from what I know of his own
personal history and characteristics that he’s not willing or able to successfully
meet the Court’s expectations and at this point, the drain on the Court’s resources
from unsuccessful efforts to supervise him just can’t be any further justified.” It
further explained that while the advisory Guidelines range was eight to fourteen
months, if it sentenced him to twelve months his sentence would be followed by
two additional years of supervised release, which, it stated, “I think would be
ridiculous given his performance on supervised release. So that’s why I’m
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basically doing the trade-off.”
II. Discussion
Mr. Fulton appeals his twenty-four-month sentence following revocation of
his supervised release. He asserts the district court abused its discretion by
imposing a variant sentence, which is twice the sentence recommended by the
Guidelines, because it “relied on a legally defective trade-off notion, substituting
extra prison time for a term of supervised release ....” He alleges the district
court did this for the purpose of punishing him for lack of remorse, resulting in a
disproportionately severe sentence in comparison with his criminal history and
the nature of his offense. In considering the lack of such remorse, Mr. Fulton
claims the district court made an implicit, erroneous finding he was responsible
for the gun and consumed alcohol in violation of his supervised release.
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(a). In imposing a sentence following revocation of supervised release,
the district court is required to consider both the Guidelines Chapter Seven policy
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statements as well as the factors provided in 18 U.S.C. § 3553(a). 1 See United
States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). “The court may, after
considering the factors set forth in” § 3553(a)(1)-(7), “revoke a term of
supervised release and require the defendant to serve in prison all or part of the
term of supervised release authorized by statute for the offense ....” 18 U.S.C.
§ 3583(e)(3). In this case, it is undisputed the advisory Guidelines range for Mr.
Fulton on revocation is eight to fourteen months imprisonment. See U.S.S.G.
§§ 7B1.3(a), (b) and 7B1.4(a). However, § 3583 authorizes the district court to
impose a maximum sentence of up to two years in prison, and, in this case, the
term of supervised release cannot exceed the term authorized by statute for the
original offense, which in this case is three years. See 18 U.S.C. § 3583(e)(3).
Generally, 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 (10 th Cir.
2005). Our appellate review for reasonableness is for abuse of discretion. See
United States v. Ruby, 706 F.3d 1221, 1225 (10 th Cir. 2013). We review the
district court’s factual findings for clear error and its legal conclusions de novo.
1
The Chapter Seven policy statements include advisory Guidelines ranges
for sentences following revocation of supervised release. See generally Ch. 7 and
U.S.S.G. §§ 7B1.3 and 7B1.4. With respect to the sentencing factors, they
include, in part, not only the nature of the offense but the history and
characteristics of the defendant as well as the need for the sentence to provide
adequate deterrence and protect the public. See United States v. Kristl, 437 F.3d
1050, 1053 (10 th Cir. 2006); 18 U.S.C. § 3553(a).
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See id. “[A]lthough a district court must provide reasoning sufficient to support
the chosen variance, it need not necessarily provide ‘extraordinary’ facts to
justify any statutorily permissible sentencing variance.” United States v. Smart,
518 F.3d 800, 807 (10th Cir. 2008).
In this case, the district court explained its reasons for the variant twenty-
four-month sentence by explaining its belief a within-Guidelines sentence,
followed by a long term of supervised release, would not sufficiently deter Mr.
Fulton from future violations of supervised release given his defiant attitude and
past and ongoing failure to follow the conditions imposed, even after receiving
multiple opportunities to correct his behavior. In so doing, it clearly rejected Mr.
Fulton’s argument some leniency was required, and it considered all the
violations to which he stipulated or were proven by the evidence, including that
he: 1) illegally possessed prescription diuretic pills and tested positive for
marijuana and amphetamines; 2) broke halfway house rules, including possession
of an unauthorized cell phone, providing a false statement to a staff member, and
refusing to obey a staff member’s order; 3) traveled outside of his town and the
state for work on multiple occasions without obtaining advance permission from
his probation officer; 4) failed to timely appear before the district court at a
hearing; and 5) failed to submit his monthly report and earnings verification. As
the district court pointed out, it is the cumulation of these violations after
multiple opportunities to correct his behavior, together with his defiant attitude
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and its belief he would continue to fail to abide by the conditions of supervised
release, that compelled it to imposed a variant sentence without supervised
release. Not only is such sentence permissible under the law but nothing in the
law or the circumstances of this case makes such a “trade-off” impermissible.
Instead, the district court’s reasoning is sufficient to support Mr. Fulton’s variant
sentence. This is true, even without considering his unauthorized use of a
company credit card to purchase alcohol or any inference he consumed that
alcohol or possessed a firearm.
In addition, it is clear the district court imposed the sentence it did for the
reasons previously referenced and not merely for the purpose of punishing Mr.
Fulton for lack of remorse with regard to the firearm or alcohol incidents. In
referencing the cumulation of his multitude of violations, it noted he had failed to
accept responsibility for them, and only after that did it comment the same was
true with regard to his allocution that day during sentencing when he failed to
take any responsibility with regard to “using the credit card, for drinking or not
drinking, for being in a bar at 12:30 [a.m.], for how that gun got in your car ....”
Similarly, the fact his sentence is almost twice the recommended advisory
Guidelines range does not make his sentence unreasonable, given the
circumstances presented with respect to his multitude of violations, even when
considered with his prior criminal history and the nature of his instant offense. In
this case, the variance is explicable by the facts presented in the record on appeal
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and the district court’s reasoning is sufficiently compelling to support the degree
of the variance. As a result, it has satisfied us it had a reasoned and reasonable
basis for the variance.
III. Conclusion
Accordingly, we AFFIRM Mr. Fulton’s twenty-four-month sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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