FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 26, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6161
(D.C. No. 5:01-CR-00202-R-1)
JIMMY EUGENE RHODES, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
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Jimmy Eugene Rhodes argues his sentence for violation of supervised release
conditions is substantively unreasonable. Exercising jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291, we affirm.
Mr. Rhodes commenced supervised release after serving a 260-month sentence for
drug and firearms offenses. Seven months later, the district court found he had violated
*
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 This order and judgment is not binding precedent,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.
the terms of his supervised release to refrain from using drugs, participate in a substance
abuse program, and not violate any other laws. Mr. Rhodes had failed 10 to 13 drug tests
for methamphetamine or marijuana, was arrested for driving on a revoked license, and
was found in possession of methamphetamine. ROA, Vol. 2 at 22, 24-28, 45-46; Supp.
ROA at 8-10. He declined to participate in an in-patient drug treatment program. Supp.
ROA at 10; see ROA, Vol. 2 at 49-50. The court revoked his supervised release and
sentenced him to 10 months in prison.
We review the substantive reasonableness of a sentence for violations of
supervised release for abuse of discretion. United States v. Rausch, 638 F.3d 1296, 1302
(10th Cir. 2011), overruled on other grounds by United States v. Bustamante-Conchas,
850 F.3d 1130 (10th Cir. 2017). A revocation-of-supervised-release sentence within the
range suggested by the United States Sentencing Commission’s (“U.S.S.C.”) policy
statements is presumed to be substantively reasonable. See United States v. McBride, 633
F.3d 1229, 1233 (10th Cir. 2011).
The district court found that the U.S.S.C.’s policy statement recommended a
sentence between 8 to 14 months. ROA, Vol. 2 at 72-73; see Supp. ROA at 6-7; United
States Sentencing Guidelines (“U.S.S.G.”) § 7B1.4. Mr. Rhodes does not dispute this
calculation, Aplt. Br. at 8, so his sentence is presumptively reasonable. His attempts to
overcome this presumption fail.
First, Mr. Rhodes contends the district court improperly weighed the sentencing
factors under 18 U.S.C. § 3553(a). At the revocation hearing, the court said it had
considered the § 3553(a) factors and pointed to Mr. Rhodes’s repeated drug use and
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arrest while on supervised release. ROA, Vol. 2 at 73. This court defers to the relative
weight a district court gives to the sentencing factors. See United States v. Smart, 518
F.3d 800, 808 (10th Cir. 2008). We see nothing in the record to suggest an abuse of
discretion.
Second, Mr. Rhodes asserts the district court failed to consider granting an
exception to the mandatory revocation requirement to allow him to participate in a
substance abuse program. When a defendant has more than three positive drug tests in
one year, “the court shall revoke the term of supervised release and require the defendant
to serve a term of imprisonment.” 18 U.S.C. § 3583(g)(4). But the court must consider
whether “the availability of appropriate substance abuse treatment programs . . . warrants
an exception.” Id. § 3583(d); see U.S.S.G. § 7B1.4 Note 6.
Because Mr. Rhodes had claimed he had no drug problem and declined in-patient
treatment just weeks before his revocation hearing, the court did not abuse its discretion
when it sent him to prison rather than a drug program. Supp. ROA at 10; see ROA, Vol.
2 at 49-50. The court’s lack of a specific ruling on the exception is not an abuse of
discretion. See United States v. Hammond, 370 F.3d 1032, 1038-39 (10th Cir. 2004).
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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