FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 15, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2012
(D.C. No. 1:09-CR-01860-MCA-1)
DAMON HATANAKA, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
_________________________________
Damon Hatanaka appeals from a 28–month sentence of imprisonment imposed
for violating his second supervised release. He complains the sentence is both
procedurally and substantively unreasonable. We affirm.
I. BACKGROUND
In 2010, Hatanaka was sentenced to 70 months of imprisonment and five years
of supervised release after pleading guilty to possessing with intent to distribute five
grams and more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). He
*
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. This order and judgment is not binding precedent,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.
violated the supervised release in August 2015 after using the telephone at his
halfway house to make threats amounting to a domestic violence offense against his
wife. The district court revoked his supervised release and sentenced him to eight
months of imprisonment and four years of supervised release.
In April 2016, Hatanaka started his second supervised release. He again was
ordered to live at a halfway house. But in August 2016, he absconded and went to
his wife’s house, where he doused her clothes with bleach and broke several
televisions. He also repeatedly attempted to contact her. Afterwards, he remained at
large for some four months. This misconduct led to the revocation of the second
supervised release.
The first revocation sentence of eight months’ imprisonment left 28 months’
imprisonment as the maximum available term. The advisory Guideline range was six
to twelve months’ imprisonment. The district court varied upward and sentenced
Hatanaka to the entire 28 months, stating:
The sentence that I will impose here is imposed due to this
defendant’s continued disregard for court orders, and this has been
consistent, Mr. Hatanaka.
Since his original commencement of supervision, he has been
arrested on three occasions for domestic violence-related matters.
I find that he is both a danger to the community and poses a risk of
flight, and the following sentence takes into consideration his lack of
compliance, what I would characterize as a poor attitude and poor behavior
while under supervised release here.
I am committing you to the custody of the Bureau of Prisons for a
term of 28 months.
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A term of supervised release will not be reimposed. I see no benefit
in that.
R., Vol. IV at 24-25. Hatanaka did not object. He now appeals.
II. DISCUSSION
An above-Guidelines sentence “will be upheld if it can be determined from the
record to have been reasoned and reasonable.” United States v. Steele, 603 F.3d 803,
807 (10th Cir. 2010) (internal quotation marks omitted). “Our appellate review for
reasonableness includes both a procedural component, encompassing the method by
which a sentence was calculated, as well as a substantive component, which relates to
the length of the resulting sentence.” Id. at 807-08 (internal quotation marks
omitted). Hatanaka challenges both components.
A. Procedural Reasonableness
“The procedural component relates to the manner in which the district court
calculated and explained the sentence.” United States v. A.B., 529 F.3d 1275, 1278
(10th Cir. 2008). “In imposing a sentence following revocation of supervised
release, a district court is required to consider both the policy statements contained in
Chapter 7 of the sentencing guidelines, as well as a number of the factors provided in
18 U.S.C. § 3553(a).” Steele, 603 F.3d at 808 (brackets and internal quotation marks
omitted). Examples of procedural error include “failing to consider the § 3553(a)
factors, . . . or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall v. United States,
552 U.S. 38, 51 (2007).
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Hatanaka argues the district court erred in (1) not explaining how it considered
the § 3553 factors; (2) not adequately explaining why it rejected the advisory
Guideline range; and (3) considering factors outside the statutory and Guideline
factors. “Because [Hatanaka] did not raise his procedural objection[s] . . . with the
district court, our review is for plain error.” Steele, 603 F.3d at 808. “We find plain
error only when there is (1) error, (2) that is plain, (3) which affects substantial
rights, and (4) which seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted). “The plain error
standard presents a heavy burden for an appellant, one which is not often satisfied.”
United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007).
We see no error, much less plain error. “[W]e have made it quite clear that the
sentencing court is not required to consider individually each factor listed in
§ 3553(a) before issuing a sentence.” United States v. Kelley, 359 F.3d 1302, 1305
(10th Cir. 2004). Although the district court did not expressly refer to the § 3553(a)
factors, “[w]e do not require a ritualistic incantation to establish consideration of a
legal issue, nor do we demand that the district court recite any magic words to show
us that it fulfilled its responsibility to be mindful of the factors that Congress has
instructed it to consider.” Id. (internal quotation marks omitted). “[I]t is enough if
the district court considers § 3553(a) en masse and states its reasons for imposing a
given sentence.” Id.
The district court explained its reasons for the upward variance, including
Hatanaka’s repeated failure to abide by the conditions of supervision and poor
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attitude while on supervision, his arrest for three domestic violence offenses while on
supervision, and his dangerousness. Although Hatanaka criticizes the district court’s
precise language, there is no indication the district court considered an improper
factor. Rather, these reasons relate directly to the § 3553(a) factors, including “the
nature and circumstances of the offense,” “the history and characteristics of the
defendant,” and “the need for the sentence imposed--(A) to reflect the seriousness of
the offense, to promote respect for the law, and to provide just punishment for the
offense; (B) to afford adequate deterrence to criminal conduct; [and] (C) to protect
the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1), (2).
As for Hatanaka’s suggestion the district court did not expressly consider other
§ 3553(a) factors, such as whether the sentence was consistent with defendants with
similar histories, there is no indication he made any material, non-frivolous
arguments regarding such factors. See United States v. Pinson, 542 F.3d 822, 833
(10th Cir. 2008) (“The court must also address, in its statement of reasons, the
material, non-frivolous arguments made by the defendant.”). “Had [the defendant]
raised the issue, specific discussion of the point might have been in order, but it was
not incumbent on the District Judge to raise every conceivably relevant issue on [her]
own initiative.” Gall, 552 U.S. at 54.
Finally, to the extent Hatanaka argues the district court’s reasons for its
upward variance were already adequately accounted for by the Guidelines range, we
have held “district courts have broad discretion to consider particular facts in
fashioning a sentence under 18 U.S.C. § 3553(a), even when those facts are already
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accounted for in the advisory Guidelines range.” United States v.
Alapizco-Valenzuela, 546 F.3d 1208, 1222 (10th Cir. 2008). The court must explain
the reasons why the defendant’s situation differs from the ordinary, see id. at
1222-23, but “[t]his explanation need not be overly detailed,” id. at 1223 (internal
quotation marks omitted). The district court did identify factors it found important,
and any failure in that explanation would not be plain error.
Having identified no plain procedural error, we need not consider whether any
such error affected Hatanaka’s substantial rights and seriously affected the fairness,
integrity, or public reputation of judicial proceedings.
B. Substantive Reasonableness
“The substantive component relates to the length of the sentence: In
evaluating the substantive reasonableness of a sentence, we ask whether the length of
the sentence is reasonable considering the statutory factors delineated in 18 U.S.C.
§ 3553(a).” A.B., 529 F.3d at 1278 (internal quotation marks omitted). We review
substantive reasonableness for abuse of discretion. Gall, 552 U.S. at 51. “When
conducting this review, the court will, of course, take into account the totality of the
circumstances, including the extent of any variance from the Guidelines range.” Id.
“[I]f the sentence is outside the Guidelines range, the court . . . must give due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Id.
Given the domestic violence arrests and Hatanaka’s 2016 absconsion from the
halfway house, the district court did not clearly err in finding he is dangerous. Such
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a finding supports the substantive reasonableness of the sentence. Pinson, 542 F.3d
at 837. Moreover, this was Hatanaka’s second revocation of supervised release in
less than two years, and therefore his “second breach of trust in a fairly short time.
Under the guidelines, recidivism is generally a reason for increased sentencing
severity.” Steele, 603 F.3d at 809. We cannot conclude the district court abused its
discretion.
The district court’s judgment is affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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