FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 4, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-1457
v. (D.C. No. 1:15-CR-00171-WYD-1)
(D. Colo.)
JOSE LUIS PLANCARTE,
Defendant - Appellant.
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ORDER AND JUDGMENT *
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Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
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This appeal involves the substantive reasonableness of an 11-month
sentence for violating the terms of supervised release. We affirm the
sentence.
Sentences must be substantively reasonable, which we review under
the abuse-of-discretion standard. See United States v. Walker, 844 F.3d
* The parties have not requested oral argument, and it would not
materially aid our consideration of the appeal. Thus, we have decided the
appeal based on the briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R.
34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1253, 1255 (10th Cir. 2017) (requirement of substantive reasonableness);
United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (abuse-
of-discretion standard). A district court abuses its discretion only if the
sentence is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
Friedman, 554 F.3d at 1307 (citation omitted).
Mr. Plancarte’s sentence is considered presumptively reasonable
because it falls within the applicable guideline range. United States v.
McBride, 633 F.3d 1229, 1232–33 (10th Cir. 2011) (rebuttable presumption
of reasonableness applies in proceedings for revocation of supervised
release). Nonetheless, Mr. Plancarte contends that the district court gave
inadequate weight to Mr. Plancarte’s history, his characteristics, and the
need to provide medical care. 1 We reject this contention.
1
Mr. Plancarte argues that
the district court considered the seriousness of the underlying
offense and
this factor should not serve as the “primary basis” of a district
court’s decision to revoke supervised release.
We decline to consider this argument. This challenge involves procedural
reasonableness, not substantive reasonableness. See United States v.
Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012). And Mr. Plancarte has
not raised or preserved a challenge involving procedural reasonableness.
See United States v. Chatburn, 505 F. App’x 713, 716 (10th Cir. 2012)
(unpublished) (treating the same challenge as one involving procedural
reasonableness); United States v. Chavez-Morales, 894 F.3d 1206, 1213
(10th Cir. 2018) (holding that a defendant failed to preserve a challenge,
2
For Mr. Plancarte’s conviction (smuggling goods), the guidelines
called for a sentence of imprisonment of 15 to 21 months. Instead, the
court imposed a lenient sentence of five years’ probation. After Mr.
Plancarte violated eight terms of probation, the court again acted with
leniency, imposing a prison term of only five months. But after finishing
the prison term, Mr. Plancarte again breached the terms of his supervised
release, violating five terms that involved (1) the use of alcohol and (2) the
possession and use of a controlled substance.
The violation of a condition of supervised release constitutes a
breach of trust. U.S. Sentencing Guidelines Manual ch. 7, pt. A
introductory cmt. (U.S. Sentencing Comm’n 2016). Thus, the district court
could reasonably view Mr. Plancarte’s continued violations as a breach of
trust, justifying a sentence of eleven months’ imprisonment after the
leniency that the court had shown earlier. See United States v. Steele, 603
F.3d 803, 809 (10th Cir. 2010) (persistent violations of supervised-release
terms could be seen as a breach of trust). In light of the reasonableness of
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which involved procedural reasonableness of the sentence, by failing to
present the challenge after sentencing).
3
this view, the sentence was not arbitrary, capricious, whimsical, or
manifestly unreasonable.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
4