FILED
United States Court of Appeals
Tenth Circuit
January 14, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-1325
(D.C. No. 1:12-CR-00103-WYD-1)
JAIMIN YOUNG MUSE, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
After examining the briefs and the 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). This case
is therefore ordered submitted without oral argument.
Defendant Jaimin Muse appeals the ten-month sentence imposed by the
district court after revocation of his supervised release. Specifically, Defendant
contends the district court imposed a sentence at the top of the advisory
*
This order and judgment is not binding precedent, except under the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.
guidelines range based on impermissible considerations relating to Defendant’s
race and the possible rehabilitative effect of incarceration. Because Defendant
did not raise these arguments below, we review only for plain error. See United
States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013).
In 2012, Defendant pled guilty to possession of a firearm as a prohibited
person in violation of 18 U.S.C. § 922(g)(1). After serving an eighteen-month
term of incarceration, he began serving a three-year term of supervised release.
Over the next several months, Defendant committed numerous violations of the
terms of his release, despite the probation office’s exhaustive efforts to help him
address his drug addiction problems and numerous warnings regarding the
possible results of violating the terms of his release. In May 2015, a probation
officer finally filed a petition for issuance of a warrant for violation of supervised
release. Defendant subsequently admitted to twelve separate violations of the
terms of his release.
At the sentencing hearing, the district court first stated that, in light of
Defendant’s numerous violations and consistent disregard of the probation
office’s admonitions, he did not understand why the probation department was
recommending a bottom-of-the-guidelines sentence of seven months instead of a
top-of-the-guidelines sentence of ten months. The district court judge questioned
the probation officer, the prosecutor, and the defense attorney, then conducted an
extensive colloquy with Defendant. The judge expressed concerns about
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Defendant’s attitude, stating he believed Defendant’s words and actions
demonstrated deceitfulness and hypocrisy instead of any kind of commitment to
stopping his unlawful behaviors. In response to Defendant’s statement that he
kept violating his probation because dealing with a drug addiction is hard, the
judge told Defendant that any achievement is hard, including the judge’s own
achievement of being the first African American judge in the history of Colorado,
and Defendant would need to work hard if he was going to be more than just
another statistic. The judge told Defendant that “men of color”—like both the
judge and Defendant—face more difficulties than similarly situated white men,
and he is disappointed when racial minorities make excuses for underachieving
instead of working harder to overcome their challenges. (Sentencing Tr. at 21.)
The judge then recommended Defendant take his ten-month period of
incarceration to figure out who he was and whether he intended to keep going
down the path of ruination. In doing so, the judge specifically noted for the
record that his challenge for Defendant to turn his life around had no real
relationship to the sentence he would impose. The judge also expressed
significant doubt as to whether Defendant would actually listen to his advice and
change his behavior. The judge then told Defendant, “[Y]ou need to have a 10-
month sentence because you don’t deserve a day less,” and he noted again that
the probation office had shown extreme—and perhaps
counterproductive—forbearance in the way it dealt with Defendant’s repeated
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violations. (Id. at 31.)
On appeal, Defendant quotes certain passages from the sentencing
transcript and argues those comments show that the district court impermissibly
based his sentence on considerations of rehabilitation and race. For instance,
Defendant argues the judge’s statement that he was imposing a ten-month
sentence because Defendant “need[ed] to sit for a while” to think about his life
choices demonstrates the judge selected a longer sentence for purposes of
rehabilitating Defendant. (Id.) Similarly, Defendant argues the judge’s
statements about his and Defendant’s status as racial minorities demonstrates that
the judge would not have imposed a ten-month sentence were it not for
Defendant’s race.
Having reviewed the entire sentencing transcript in context, however, we
are not persuaded the district court’s sentencing decision was based on
impermissible considerations of rehabilitation or race. While the judge’s advice
to Defendant referred to his hopes for rehabilitation and his concerns about the
lack of accountability shown by many young men of color, the record makes clear
that the sentencing decision itself was based on permissible considerations
relating to Defendant’s unrepentant attitude and his continued violations despite
the probation office’s numerous attempts to help him address his drug addiction
problems. Particularly under the applicable plain error standard of review, we are
not persuaded that the district court’s editorial comments reflect any reliance on
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impermissible considerations in the sentencing decision.
We accordingly AFFIRM the district court’s decision.
Entered for the Court
Monroe G. McKay
Circuit Judge
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