United States v. Foster

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 12, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v. No. 14-1327
(D. Colo.)
CHESTON FOSTER, (D.C. No. 1:10-CR-00442-LTB-1)

Defendant – Appellant.

ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON, and MURPHY, 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.

BACKGROUND

Defendant and appellant, Cheston Jerome Foster, was convicted in 2010 in

Colorado of possession of stolen mail, in violation of 18 U.S.C. § 1708. He was

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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. 32.1.
sentenced to seventeen months’ imprisonment, followed by three years of

supervised release. On October 30, 2012, the district court revoked Mr. Foster’s

supervised release based upon five Grade C violations of his supervised release:

failure to work regularly, failure to notify his probation officer of a change of

address, failure to submit monthly reports, traveling without permission, and

associating with a convicted felon. The district court sentenced Mr. Foster to

time served and it imposed thirty months of supervised release, with special

conditions. One of the special conditions was that Mr. Foster was supposed to

reside in a “residential reentry center” (RRC) for up to six months following his

release from imprisonment. Supervised Release Violation Report at 2; R. Vol. 2

at 15.

On January 2, 2013, Mr. Foster’s probation officer filed a Petition for

Issuance of Arrest Warrant Due to Violations of Supervised Release. The Petition

alleged that Mr. Foster had violated the special conditions of his supervised

release by absconding from the RRC on December 27, 2012, and that, as of the

date of the Petition, Mr. Foster’s whereabouts were unknown. The Petition also

alleged Mr. Foster had failed to comply with the rules of the RRC. The probation

officer prepared a Supervised Release Violation Report that calculated the

applicable sentencing range under the United States Sentencing Commission,

Guidelines Manual (“USSG”). The Report calculated that the claimed violation

was Grade C and that Mr. Foster’s criminal history category was V. This yielded

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an advisory Guidelines sentencing range of seven to twelve months. See USSG

§ 7B1.4(a). R. Vol. 2 at 21.

A revocation hearing was scheduled for February 13, 2013. The day before

that hearing, the government filed an indictment charging Mr. Foster with escape

from the RRC, in violation of 18 U.S.C. § 751(a). That charge was based on the

same conduct that underlay the revocation petition, in that it involved Mr.

Foster’s escape/absconding from the RRC. The district court judge agreed to

continue the revocation hearing in the stolen mail case (and stemming from the

absconding/escape charge) pending resolution of the escape charge.

The district court judge initially assigned to both the stolen mail and the

escape cases was Judge Lewis T. Babcock. Judge Babcock subsequently recused

himself from the escape case, and the case was reassigned to Judge Christine M.

Arguello. Judge Arguello dismissed the escape indictment in November 2013.

The government appealed that dismissal, and Judge Babcock agreed to further

continue the supervised release matter in the stolen mail case through the

pendency of the appeal.

Meanwhile, in April 2014, while the appeal of the escape charge dismissal

was pending, Mr. Foster’s probation officer filed a Supplemental Petition for

Issuance of Arrest Warrant Due to Violations of Supervised Release, alleging yet

another (new) violation of supervised release. The new violation was a violation

of law: assault and robbery of a postal service employee, in violation of 18 U.S.C.

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§ 2114(a). The Supplemental Petition stated that the robbery had occurred on

December 17, 2012, and that Mr. Foster had recently plead guilty to that offense

before U.S. District Judge John L. Kane.

In June 2014, our court reversed Judge Arguello’s dismissal of the escape

indictment. United States v. Foster, 754 F.3d 1186 (10th Cir. 2014). Mr. Foster

then pled guilty to that offense, and his probation officer again supplemented the

revocation petition in this case (the stolen mail conviction) to add the escape

conviction as a new “violation of law.” Attach. to Supplemental Pet. for Issuance

of Arrest Warrant Due to Violations of Supervised Release; R. Vol. 3 at 14-16.

This latest violation was a Grade B violation of Mr. Foster’s supervised release.

Id.

In each of the later cases (the escape case and the robbery case) the parties

reached plea agreements pursuant to which the government agreed to recommend

that each sentence run concurrently with the other and with any sentence imposed

for the supervised release violations in this (stolen mail) case. 1 The sentences

actually imposed in those cases were consistent with those recommendations:

Judge Kane imposed a sentence of eighty-four months’ imprisonment with five

1
At the sentencing hearing on the revocation of supervised release
proceedings, the government attorney stated that, “Mr. Foster has been before
judges in multiple courtrooms in related matters. The Government, as part of the
Plea Agreement in the robbery case before Judge Kane, and the escape case
before Judge Arguello, recommended that those sentences and any sentence in
this case run concurrent.” Tr. of Sentencing at 12; R. Vol. 5 at 35.

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years of supervised release for the robbery conviction and Judge Arguello

imposed a sentence of fifteen months’ imprisonment on the escape conviction, to

run concurrently.

The revocation hearing in this case finally occurred on July 28, 2014, after

the sentences in the robbery and escape cases had been imposed. Prior to that

hearing, the probation officer filed a Revised Supervised Release Violation

Report. That Report stated that the two new law violations were Grade B, which,

with a criminal history category of V, yielded an advisory Guidelines sentencing

range of eighteen to twenty-four months. The Report further stated that:

Pursuant to U.S.S.G. § 7B1.3(f), any term of imprisonment imposed
upon the revocation of probation or 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.

Superseding Supervised Release Violation Report at 4; R. Vol. 2 at 26.

At the July 28 revocation hearing, the court began with the following

observations:

[Y]ou have a fairly long and serious criminal history. I don’t know what
I’m going to do yet, because I haven’t heard from [the government], and I
have not heard from your lawyer and I haven’t heard from you, but given
all of the opportunities that you have been afforded before me, when you
were on supervised release, and given that there were two federal felonies
committed while you were on supervised release, I could go above this 24
months.

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Tr. of Sentencing Hr’g at 8; R. Vol. 5 at 31. Both the government and defense

counsel requested a sentence concurrent with the other two sentences. The

government explained that Mr. Foster had been the lookout in the robbery case,

and that his two accomplices had been the ones who actually confronted the

postal worker. The two co-defendants, however, had been allowed to plead to a

conspiracy charge with a sixty-month sentencing cap, while the government

offered Mr. Foster only a plea to robbery, which carried a higher statutory

maximum penalty. He thus received an eighty-four month sentence, some twenty-

four months longer than the maximum sentence to which his co-defendants were

exposed. The government opined that the severity of Mr. Foster’s sentence in the

robbery case vis-a-vis his co-defendants justified the imposition of concurrent, as

opposed to consecutive, sentences in this case and the escape case.

The district court ultimately rejected the recommendations of both parties

and imposed a sentence of twenty-four months, to run consecutively to the

sentences imposed in the escape and robbery cases. The court explained its

sentence as follows:

What your Criminal History Category is a level V, it’s high.
It’s a Level V here, but if it was a new case before me it would be a
Level VI. So I look at all of these factors that I mentioned to you, in
terms of disregarding the mandatory language of the policy
statements, and when I look at all of these factors, what they say to
me, under the facts and circumstances of this case, and your history
and characteristics, is that I probably ought to depart upward. And
when I consider 18 U.S.C. Section 3553(a), as the Tenth Circuit says

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 I can do, considering those factors, as applied here, they require for
me a consecutive, not concurrent [sentence].

....

Well, I have considered 18 U.S.C. Section 3553(a), and on that
consideration and on your admissions, I will find and conclude that
you have violated your conditions of supervised release as charged
here, violations two and three are Grade B violations, your Criminal
History Category Level in this case remains at V, and that results in a
recommended range of imprisonment of 18 to 24 months. Under the
policy statements by the Sentencing Commission.

Based on these findings and based upon the nature and
circumstances of the violation, under the context and circumstances
of this case, and your history and your characteristics, and finding
that you have violated the conditions of supervised release as
alleged, it is ordered and adjudged that your supervised release is
revoked and you are sentenced to the custody of the bureau of
prisons for a period of 24 months to run consecutively with the
sentence imposed in U.S. District Court case number[s] 13-cr-238-
JLK-01 and 13-cr-62-CMA-01.

Id. at 47-48. The court then further explained its sentencing decision, particularly

in light of the sentences imposed in the other (escape and robbery) cases, stating

as follows:

[T]he plea negotiations between Government counsel and Defense
counsel and the defendant in separate cases are just that. When we
come here today, it remains my responsibility to look at these
violations in light of 18 U.S.C. Section 3553(a), and the policy
statements of the guidelines, rather than whatever policy or whatever
plea negotiations were conducted by counsel.

Id. at 50. The court also indicated its emphasis on the seriousness of Mr. Foster’s

violations of the conditions of his supervised release:

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 [S]omebody who is on supervised release, and I think there’s Tenth
Circuit authority to this effect, that there is a blanket of trust imposed
by the law and by the guidelines and by the conditions of supervised
release, and it is an important trust, because it is a trust that is
imposed so as to rehabilitate a defendant, and to protect the . . .
public from further violations. In this case that trust was violated
egregiously.

Id. at 52-53.

Mr. Foster now appeals his twenty-four month consecutive sentence,

arguing that it is substantively unreasonable. More specifically, he argues that

the “district court’s error in treating the relative severity of Mr. Foster’s sentence

in the robbery case as irrelevant produced an unreasonable balancing of the

sentencing factors and a substantively unreasonable sentence.” Appellant’s Br. at

6.

DISCUSSION

As we have stated before, “[a] substantive challenge [to a sentence]

concerns the reasonableness of the sentence’s length and focuses on the district

court’s consideration of the § 3553(a) factors and the sufficiency of the

justifications used to support the sentence.” United States v. Lente, 647 F.3d

1021, 1030 (10th Cir. 2011). We have also held that a “district court commits a

procedural sentencing error by failing to consider sentencing factors enumerated

in 18 U.S.C. § 3553(a).” United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir.

2013). Mr. Foster alleges that the district court treated as irrelevant his relatively

severe robbery sentence, which led to an unreasonable balancing of the sentencing

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factors and a substantively unreasonable sentence in this case. However

characterized, we review the district court’s sentencing decision for abuse of

discretion. Lente, 647 F.3d at 1030.

A district court has the discretion to impose consecutive or concurrent

sentences. 18 U.S.C. § 3584(a). We generally review the consecutive nature of

sentences for abuse of discretion, but we have reviewed consecutive sentences

imposed for supervised release violations under the “plainly unreasonable”

standard. United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1256-57 (10th

Cir. 2006). Under the abuse of discretion standard, we will uphold a sentence

“unless it is arbitrary, capricious, whimsical, or manifestly unreasonable.” United

States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008). Similarly, under

the plainly unreasonable standard, “we will not reverse if [the sentence] can be

determined from the record to have been reasoned and reasonable.” United States

v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004) (quotation omitted). “A reasoned

sentence is one that is procedurally reasonable; and a reasonable sentence is one

that is substantively reasonable.” United States v. Vigil, 696 F.3d 997, 1001

(10th Cir. 2012) (alteration and quotations omitted). The overarching question is

whether the district court abused its discretion in selecting the sentence it deems

reasonable; our review of that sentence is deferential. See United States v.

McBride, 633 F.3d 1229, 1231-32 (10th Cir. 2011).

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 When imposing a sentence following revocation of supervised release, a

district court must consider the Guidelines Chapter 7 policy statements and the

sentencing factors in 18 U.S.C. § 3553(a). United States v. Cordova, 461 F.3d

1184, 1188 (10th Cir. 2006). It is clear from the record in this case that the

district court considered both of those. The court was also acutely aware that

pursuant to USSG § 7B1.3(f), “[a]ny term of imprisonment imposed upon the

revocation of probation or 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.”

USSG § 7B1.3(f). Additionally, the court clearly understood that that Guidelines

provision is merely an advisory policy statement, and the court must consider the

§ 3553(a) sentencing factors to arrive at a reasonable sentence.

Mr. Foster claims the district court treated as irrelevant the fact that Mr.

Foster had been treated more harshly in the robbery case than his codefendants

were, and that the court accordingly unreasonably balanced the relevant

sentencing factors. We disagree. First, the record convinces us that the court did

not consider the robbery sentence as irrelevant; it was very aware of that sentence

and the parties’ argument that the eighty-four month sentence in that case was

“sufficient.” Tr. of Sentencing Hr’g at 17; R. Vol. 5 at 40. The court simply

acknowledged that the sentence and negotiations in that case were not binding on

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its own sentencing decision: “the plea negotiations between Government counsel

and Defense counsel and the defendant in separate cases are just that. When we

come here today, it remains my responsibility to look at these violations in light

of 18 U.S.C. Section 3553(a), and the policy statements of the guidelines, rather

than whatever policy or whatever plea negotiations were conducted by counsel.”

Id. at 50.

Second, the court’s reasoning and balancing of the relevant sentencing

factors was not unreasonable. We have stated that “[t]he violation of a condition

of supervised release is a breach of trust and, while the sentencing court at

revocation takes into account the seriousness of the underlying crime, it is

primarily the breach of trust that is sanctioned.” United States v. Contreras-

Martinez, 409 F.3d 1236, 1241-42 (10th Cir. 2005); see also Vigil, 696 F.3d at

1003 (noting that “at revocation [of supervised release] the court should sanction

primarily the defendant’s breach of trust . . .” (quoting USSG Ch. 7 pt. A,

introductory cmt., A(3)(b))); United States v. Steele, 603 F.3d 803, 809 (10th Cir.

2010). The court made it clear that Mr. Foster had committed a serious breach of

trust, and that he did so despite being given opportunities earlier to remain law-

abiding:

You are an intelligent and articulate man, and you are right, I
cut you some slack, gave you an opportunity to, as you say, a chance
to prove who you are. And then what you proved during that time
was that you committed an armed robbery of a postal employee . . .
that involved highjacking this postal employee, getting a key so that

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 you could rummage through the mailboxes that are there for the
public.

Tr. of Sentencing Hr’g at 21; R. Vol. 5 at 44. The court precisely and carefully

explained its reasoning in deciding Mr. Foster’s sentence.

In short, the court determined to impose Mr. Foster’s sentence to run

consecutively to his sentences in the other cases, after a full consideration and

analysis of the relevant Guidelines provisions, including policy statements,

sentencing factors and the arguments of the parties. Its decision was not

arbitrary, whimsical or manifestly unreasonable.

CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed in this case.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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