FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 19, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-6168
(D.C. No. 5:09-CR-00072-M-1)
KEVIN PATTON, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Kevin Patton appeals from a district court order that revoked his supervised
release and sentenced him to seven-months’ imprisonment. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
BACKGROUND
In 2009, Patton pleaded guilty to one count of access-device fraud, in violation
of 18 U.S.C. § 1029(a)(2), for using a stolen credit card to acquire over $20,000 in
fuel and other products. The district court sentenced him to five-months’
imprisonment with three-years of supervised release.
After being released from custody, Patton’s probation officer petitioned the
district court to revoke Patton’s term of supervised release because he had
(1) “attempt[ed] to deceive drug testing procedures” using “a bottle of clean urine”;
and (2) tested positive for methamphetamine. R., Vol. I at 25. At the hearing on the
petition, the court continued the matter for ninety days to give Patton the
“opportunity to participate in additional substance abuse counseling.” Id. at 32.
Patton began to comply with the terms of his supervised release, and the court
dismissed the revocation petition.
Five months later, however, Patton’s probation officer filed another revocation
petition, repeating the earlier violations and adding that Patton had (1) failed to notify
her that he had been fired from work; (2) failed to report on two occasions for drug
testing; (3) and tested positive for amphetamine when he did report. The U.S.
Probation Office listed the violations as Grade C offenses. See U.S. Sentencing
Guidelines Manual § 7B1.1 (placing various probation and supervised release
violations in Grades A through C depending upon the severity of the offense).
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The court held a hearing, in which Patton admitted the violations alleged in
both petitions, and he argued for placement in a halfway house so he could find work,
meet his child-support obligations, and continue with drug counseling. The
government argued for revocation and imprisonment, indicating that Patton had been
fired for unauthorized use of a credit card.
The court declined to give Patton another opportunity to meet the
requirements of his supervised release, and instead, opted for imprisonment within
the five-to-eleven month guideline revocation range. The court then selected a
seven-month sentence upon “consider[ing] the factors in Title 18 United States Code
Section 3553, and the policy statements in Chapter 7 of the Sentencing Guidelines.”
R., Vol. 3 at 9.
Patton appeals.
DISCUSSION
We review a sentencing decision for reasonableness, applying a deferential
abuse of discretion standard. See United States v. Haley, 529 F.3d 1308, 1311
(10th Cir. 2008). Patton acknowledges that the applicable revocation sentence is
five-to-eleven months. Aplt. Br. at 7. His seven-month sentence is, thus,
presumptively reasonable. See United States v. McBride, 633 F.3d 1229, 1232-33
(10th Cir. 2011).
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Patton argues, however, that he should have been given another chance at
supervised release instead of incarceration.1 “When a convicted defendant violates a
condition of supervised release, the sentencing judge may revoke the term of
supervised release and impose prison time.” United States v. Vigil, 696 F.3d 997,
1002 (10th Cir. 2012) (citing 18 U.S.C. § 3583(e)(3)). In doing so, “[t]he judge must
consider [certain] factors in 18 U.S.C. § 3553(a)[2] and the policy statements in
Chapter 7 of the Sentencing Guidelines.” One such policy statement advises that
1
Patton also complains that the district court did not adequately explain its
reasons for the sentence it selected. But he forfeited the argument by not raising it
during the revocation hearing. See United States v. Teague, 443 F.3d 1310, 1314
(10th Cir. 2006). And while the argument could still qualify for plain-error review
on appeal, see United States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010), Patton
neither acknowledges the standard’s applicability nor attempts to satisfy anything but
the first element of that standard, see id. (noting that plain error requires “(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”). This court has
announced that “the failure to argue for plain error and its application on appeal
surely marks the end of the road for an argument for reversal not first presented to
the district court.” United States v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir.
2012) (ellipsis and quotation omitted). Indeed, Patton does not argue how a more
detailed sentencing explanation would have resulted in a lesser sentence, thereby
affecting his substantial rights. See United States v. Begaye, 635 F.3d 456, 471
(10th Cir. 2011) (holding that defendant failed to carry his plain-error burden of
showing that district court’s allegedly inadequate sentencing explanation affected
his substantial rights). We will not craft a party’s arguments for him. United States
v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir. 2011), cert. denied, 132 S. Ct. 1969
(2012). Consequently, we do not reach the merits of Patton’s
procedural-reasonableness argument.
2
The § 3553(a) considerations are, in a nutshell: the background of both the
offense and the defendant; the deterrent, protective, and correctional aspects of the
sentence; applicable guideline and policy statements; the avoidance of sentencing
disparities; and victim restitution. See 18 U.S.C. § 3583(e) (listing the applicable
§ 3553(a) factors).
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“[r]evocation of . . . supervised release generally is the appropriate disposition in the
case of a Grade C violation by a defendant who, having been continued on
supervision after a finding of violation, again violates the conditions of his
supervision.” U.S. Sentencing Guidelines Manual § 7B1.3 cmt. n.1. Although the
district court dismissed the first revocation petition without making a formal finding
as to the violation, Patton “stipulated” at the hearing on the first petition that he had
in fact “attempted to circumvent drug testing procedures and . . . had tested positive
for methamphetamine.” R., Vol. I at 36. Moreover, despite receiving a second
chance to comply with the conditions of supervised release, Patton committed several
further infractions just a short time later. According to the U.S. Sentencing
Commission, such a breach of trust should be the primary basis of the court’s
revocation sanction. See U.S. Sentencing Guidelines Manual § Ch. 7, Pt. A(3)(b).
We conclude that revoking Patton’s term of supervised release and sentencing
him to seven months’ imprisonment due to his repeated violations of the terms of his
supervised release and his breach of the district court’s trust was reasonable and not
an abuse of discretion.3
3
The government contends that Patton was subject to mandatory revocation
under 18 U.S.C. § 3583(g)(3) for missing drug tests and attempting to manipulate test
results. We need not reach that contention because of our conclusion that
discretionary revocation was reasonable.
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CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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