FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
April 26, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-7108
BRIAN STEELE,
Defendant – Appellant.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:04-CR-00060-JHP-1)
Submitted on the briefs:
Bret A. Smith, Muskogee, Oklahoma, for Defendant-Appellant.
Sheldon J. Sperling, United States Attorney, and Christopher J. Wilson, Assistant United
States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.
___________________________________
Before TACHA, BRISCOE, and O'BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
Error! Main Document Only.After examining the briefs and appellate record, this
panel has determined unanimously to grant 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 ordered submitted without oral argument.
Brian Steele appeals from an 18-month sentence of imprisonment imposed for his
second violation of the terms of supervised release. He complains of procedural
irregularities and claims the sentence is unreasonable. We affirm.
I. BACKGROUND
In June 2004, Steele pled guilty to possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 63 months
imprisonment and 36 months supervised release. It is unclear from the record when he
began serving that (his first) supervised release. In any event, in March 2008, he violated
the terms by unlawfully possessing and using a controlled substance, failing to truthfully
answer questions and otherwise follow the instructions of his probation officer, and
committing another crime. The court revoked supervised release and sentenced him to 6
months imprisonment followed by another 18 months of supervised release. He began
the second supervised release on October 2, 2008.
On April 18, June 6, June 29 and July 24, 2009, he tested positive for marijuana.
He admitted his violations of supervised release in open court. The policy provisions of
Chapter 7 of the United States Sentencing Guidelines recommended a sentencing range
of 4 to 10 months imprisonment, see USSG §7B1.4(a)—the statutory maximum is 24
months. See 18 U.S.C. § 3583(e)(3). Defense counsel argued he was entitled to a lenient
sentence because he maintained a job and supported his two children while on the most
recent supervised release.1
1
It is unclear from the record whether Steele also maintained a job and/or
provided support for his children while serving his first supervised release.
The court sentenced Steele to 18 months imprisonment, explaining:
You know, a year ago, I was in hopes that six months would get
your attention . . . . And I appreciate that you have two children and are
paying child support. That’s the most positive thing I’ve heard . . . .
[F]rom my perspective, it’s not consistent, though. That you’re paying
child support and apparently taking care of your kids is a good thing
obviously . . . . [I]f I told you that that was common for me to see guys in
your situation taking care of their kids and taking care of their wife, I’d say
it’s unusual. You’re the exception there. What I don’t understand is why
you would sacrifice that relationship over marijuana . . . .
[M]arijuana is . . . illegal . . . . And when someone comes in, the
truth is, in my old age, I’ve gotten more lenient than I used to be. I used to
get one positive and I thought I ought to send people to jail right then
because you defied the Court, defied the law. So at the urging, primarily of
probation, I let it go two or three—go through some counseling [and] some
treatment. You’ve been through all that. And I’m just concerned there’s
not much I can do. And probably what you would like me to do is . . . let
you serve your time, and then you can go do with your life whatever you
choose to do. I just hope you . . . do something constructive that doesn’t
involve marijuana.
....
The Court has considered the violation policy statements . . . in
Chapter 7 of the United States Sentencing Guideline manual now in effect,
and view[s] those policies as advisory in nature for the purpose of these
proceedings. I’ve considered the nature and circumstances of the violation
conduct and history and characteristics of the offender. Mr. Steele has
shown little regard for the rules and conditions of supervised release as
indicated by his possession and use of marijuana during his term of
supervised release.
The sentence imposed is within the authority specified in 18 United
States Code, Section 3583(e)(3). Said sentence is reasonable, provides just
punishment for noncompliance, is an adequate deterrent to criminal
conduct, and promotes respect for the law.
(R. Vol. II at 24-27.)
The court informed Steele of his right to appeal and then asked each party whether
there was “[a]nything further.” (Id. at 28.) The government said “[n]o” and defense
-3-
counsel responded with a request that the court recommend Steele be permitted to serve
his sentence in Beaumont, Texas. (Id.)
II. DISCUSSION
Steele does not challenge the revocation of his supervised release. Rather, he
complains 18-months imprisonment is unreasonable in light of the guidelines’
recommendation of 4 to 10 months and the facts and circumstances of this case. In
addition, he says the court failed to adequately explain its decision to deviate from the
guidelines’ recommendation, especially after acknowledging Steele’s demonstrated
ability to maintain employment and support his children. To avoid plain error review, he
claims the district court erred in failing to elicit objections after imposing sentence,
thereby preventing him from ascertaining (or challenging) the court’s reasons for
deviating from the guidelines’ recommendation.
A. Failure to Elicit Objections
In United States v. Jones, the Eleventh Circuit held that after imposing sentence, a
district court must give the parties the opportunity “to object to the . . . court’s ultimate
findings of fact and conclusions of law and to the manner in which the sentence is
pronounced.” 899 F.2d 1097, 1102 (11th Cir. 1990), rev’d on other grounds, United
States v. Morrill, 984 F.2d 1136 (11th Cir. 1993). It reasoned such a procedure would
“serve the dual purpose of permitting the district court to correct on the spot any error it
may have made and of guiding appellate review.” Id. “In applying the Jones rule, [the
Eleventh Circuit] has held that when the district court merely asks if there is ‘anything
further?’ or ‘anything else?’ and neither party responds with objections, then the court
-4-
has failed to elicit fully articulated objections and has therefore violated Jones.” United
States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007). “Under this rule, when a
district court fails to elicit objections after imposing a sentence, [the appellate court]
normally vacate[s] the sentence and remand[s] to the district court to give the parties an
opportunity to present their objections.” Id. at 1347. But a remand is not necessary when
the record on appeal is sufficient to enable adequate review. Id. In the Eleventh Circuit
Jones applies to supervised release revocation proceedings. Id. at 1348. Not all circuits
agree. United States v. Starnes, 583 F.3d 196, 219 n.12 (3d Cir. 2009) (rejecting Jones
rule, stating, inter alia, “we have never adopted such a supervisory rule and, in light of
our precedents, we doubt the propriety of doing so”); United States v. Vanderwerfhorst,
576 F.3d 929, 934 (9th Cir. 2009) (rejecting imposition of a requirement that district
courts elicit objections after announcing sentence).
Relying on Jones and Campbell,2 Steele argues the district court erred in failing to
elicit objections from the parties after imposing sentence, thereby preventing him from
determining the reasons behind the court’s deviation from the guidelines’ recommended
sentencing range. Even though the court asked both parties whether there was
“[a]nything further” and neither party responded with an objection, Steele claims the
court did not fulfill its obligation of eliciting objections. (R. Vol. II at 28.)
This issue has not previously been presented in this Circuit. We side with the
2
As the government points out, the Sixth Circuit imposes a similar requirement on
the district courts within its circuit. See United States v. Bostic, 371 F.3d 865, 872-73
(6th Cir. 2004).
-5-
Third and Ninth Circuits in concluding a trial judge is not required to specifically elicit
objections after announcing a sentence. Competent professionals do not require such
gratuitous superintendence; as long as there is a fair opportunity to register an objection,
ask for an explanation or request factual findings, counsel must take the initiative thereby
insuring that silence is not mistaken for acceptance. If a proper record is not made in the
district court, we will only review for plain error.3
In this case a sufficient opportunity was made available. If Steele had objections
to the sentence imposed or, more particularly, to the decision-making process, he could
and should have raised them at a time and in such a way as to afford the trial judge an
opportunity to correct any error, clarify any ambiguity or elaborate as necessary. In any
event, this judge clearly articulated his (self evident) reasons for imposing a sentence
outside the recommended range—Steele’s serial violations of the law and supervised
release terms, the failure of a shorter sentence to deter such violations and the apparent
futility of substance abuse treatment.
B. Reasonableness in general
“[A] sentence in excess of that recommended by the Chapter 7 policy statements
will be upheld if it can be determined from the record to have been reasoned and
reasonable.” United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006) (quotations
omitted). This is the same analysis as the reasonableness standard of review under
United States v. Booker, 543 U.S. 220 (2005). See United States v. Rodriguez-
3
The result might be different in a pro se case where a defendant was clearly and
unfairly disadvantaged.
-6-
Quintanilla, 442 F.3d 1254, 1256-57 (10th Cir. 2006) (citing United States v. Kelley, 359
F.3d 1302, 1304 (10th Cir. 2004)).4 “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.” United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). “In [Gall v.
United States, 552 U.S. 38 (2007)], the Supreme Court identified failing to consider the §
3553(a) factors and failing to adequately explain the chosen sentence as forms of
procedural error.” Id. (quotations omitted). On the other hand, “[a] challenge to the
sufficiency of the § 3553(a) justifications relied on by the district court implicates the
substantive reasonableness of the resulting sentence.” Id. at 804. Steele claims his
sentence is procedurally flawed and substantively unreasonable.
1. Procedural Reasonableness
When a defendant violates a condition of supervised release, the district court
may, as it did here, revoke the term of supervised release and impose prison time. 18
U.S.C. § 3583(e)(3). “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).” Cordova, 461 F.3d at 1188 (citation omitted). Those factors include:
The nature and circumstances of the offense; the history and characteristics
4
See also United States v. Wrobel, No. 09-5042, 2010 WL 226960, at *2 (10th
Cir. Jan. 21, 2010) (Unpublished). Unpublished decisions are not binding precedent.
10th Cir. R. 32.1(A). We mention Wrobel as we would any other non-precedential
authority.
-7-
of the defendant; the need for the sentence imposed to afford adequate
deterrence, protect the public, and provide the defendant with needed
educational or vocational training, medical care or other correctional
treatment in the most effective manner; pertinent guidelines; pertinent
policy statements; the need to avoid unwanted sentence disparities; and the
need to provide restitution.
Id. at 1188-89 (quotations omitted). “The sentencing court, however, is not required to
consider individually each factor listed in § 3553(a), nor is it required to 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 before issuing a sentence.” Id. (quotations
omitted).
Because Steele did not raise his procedural objection (failure to adequately explain
the decision to deviate from the guidelines’ recommendation) with the district court, our
review is for plain error. United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007)
(because defendant did not object to the district court’s lack of explanation after it
announced his sentence, plain-error review is appropriate); see also Cordova, 461 F.3d at
1186 (applying plain error review to sentencing arguments challenging the revocation of
a term of supervised release because arguments not raised with district court). “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.” Romero, 491 F.3d at 1178. Because we discern no error, we need
not go beyond the first step of the sequential analysis.
The district court considered the Chapter 7 policy statements as well as the §
3553(a) factors, in particular, the nature and circumstances of the violations, the history
-8-
and characteristics of the defendant and the need for the sentence imposed to afford
adequate deterrence and protect the public. It also adequately explained its decision to
deviate from the guidelines’ recommendation. While it acknowledged Steele’s provision
of support for his children was exceptional, it also noted this admirable conduct was
inconsistent with and eclipsed by his decision to continue to violate the law by using
marijuana. It was also concerned that he refused to learn from past mistakes—lesser past
punishment proved not to be an adequate deterrent—and he failed to benefit from
counseling and treatment. To the extent explanation was required, it was more than met.
2. Substantive Reasonableness
We consider the substantive reasonableness of the length of a sentence under an
abuse-of-discretion standard. Gall, 552 U.S. at 51. “A district court abuses its discretion
when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly
unreasonable.” United States v. Landers, 564 F.3d 1217, 1224 (10th Cir.), cert. denied,
130 S. Ct. 198 (2009) (quotations omitted); see also United States v. Ortiz, 804 F.2d
1161, 1164 n.2 (10th Cir. 1986) (“Under the abuse of discretion standard, a trial court’s
decision will not be disturbed unless the appellate court has a definite and firm conviction
that the lower court made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.”). This standard applies without regard to
whether the district court imposes a sentence within or outside the advisory Guidelines
range. Gall, 552 U.S. at 51.
The United States Sentencing Commission debated two different approaches to
sanctioning a violation of supervised release: (1) consider the “defendant’s failure to
-9-
follow the court-imposed conditions of . . . supervised release as a ‘breach of trust’” or
(2) sanction the defendant “for the particular conduct triggering the revocation as if that
conduct were sentenced as new federal criminal conduct.” USSG Ch. 7, Pt. A(3)(b). The
Commission chose the former approach—“at revocation the court should sanction
primarily the defendant’s breach of trust, while taking into account, to a limited degree,
the seriousness of the underlying violation and the criminal history of the violator.” Id.
This was Steele’s second breach of trust in a fairly short time. Under the guidelines,
recidivism is generally a reason for increased sentencing severity.5
The seriousness as well as the persistence of Steele’s violations, while not the
primary focus, is also relevant. These were not mere technical violations; possession of
marijuana is both a federal and state crime. See 21 U.S.C. § 844(a); Okla. Stat. Ann. tit.
63, § 2-402(A)(1), (B)(2).
Steele’s sentence was patently reasonable.
AFFIRMED.
5
The Comprehensive Crime Control Act sets forth four purposes of
sentencing. (See 18 U.S.C. § 3553(a)(2).) A defendant’s record of past
criminal conduct is directly relevant to those purposes. A defendant with a
record of prior criminal behavior is more culpable than a first offender and
thus deserving of greater punishment. General deterrence of criminal
conduct dictates that a clear message be sent to society that repeated
criminal behavior will aggravate the need for punishment with each
recurrence. To protect the public from further crimes of the particular
defendant, the likelihood of recidivism and future criminal behavior must
be considered. Repeated criminal behavior is an indicator of a limited
likelihood of successful rehabilitation.
USSG Ch. 4, Part (A), intro. comment.
- 10 -