Appellate Case: 22-5010 Document: 010110749698 Date Filed: 10/06/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 6, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-5010
(D.C. No. 4:19-CR-00065-GKF-1)
ERIC EUGENE ROYER, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, BALDOCK and CARSON, Circuit Judges.
_________________________________
Eric Eugene Royer appeals from the district court’s judgment revoking his
supervised release and imposing a ten-month sentence of imprisonment and a
twenty-six-month term of supervised release. He argues the court erred by not
granting a continuance of his revocation hearing and by imposing a substantively
unreasonable sentence. Exercising jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding precedent,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.
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I.
In 2019, Mr. Royer stopped his truck, blocked traffic, and began yelling at
other cars that drove around his truck. He pulled a handgun from his pocket and
pointed it at one car. After that car drove around him, Mr. Royer got back in his
truck and began pursuing the car. One of the car’s occupants called the sheriff’s
office. Deputies stopped Mr. Royer’s truck at gunpoint, seized a loaded handgun
from his pocket, and arrested him. Mr. Royer pleaded guilty in federal court to one
count of possession of a firearm and ammunition by a felon. See 18 U.S.C.
§ 922(g)(1). The court sentenced him to 30 months of imprisonment and two years
of supervised release.
In February 2021, Mr. Royer was released from prison and began serving his
term of supervised release. Later that year, the United States filed in the district
court a Petition for Warrant for Offender Under Supervision alleging the following.
In May 2021, Mr. Royer tested positive for methamphetamine and later admitted to
his probation officer that he had used methamphetamine. Also in May, he was
arrested in Arkansas and served a two-month sentence for failure to appear. Before
and after his Arkansas incarceration, he repeatedly failed to submit to required drug
testing. Beginning in August 2021, Mr. Royer stopped submitting monthly reports,
which the probation office uses to track changes in contact information and
employment, and as of September 30, he had stopped making required daily calls to
the drug testing hotline. On October 26, 2021, the probation officer went to the
motel where Mr. Royer was living because she had been unable to contact or locate
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him since October 14. Mr. Royer was not there, and the hotel manager told her he
had not seen Mr. Royer for several days. The officer asked the manager to have
Mr. Royer call her immediately, and she left a card in the keycard slot of the motel
room instructing Mr. Royer to call her. Mr. Royer never did so. The probation
officer contacted Mr. Royer’s mother on November 1 and 9. Mr. Royer’s mother
said that on October 29, he had called her from a borrowed phone to ask for money
but she had not been able to reach him since.
Based on these allegations, the petition asserted Mr. Royer had committed
three Grade C violations of supervised release: (1) failing to submit monthly written
reports to his probation officer and to contact his probation officer as directed;
(2) failing to abide by the policies and procedures of his drug testing program; and
(3) testing positive for methamphetamine and admitting to using it.
Prior to his revocation hearing, Mr. Royer filed a motion for a downward
variance from the sentencing range for his violations set out in the United States
Sentencing Guidelines Manual, which was six to twelve months in prison, see USSG
§ 7B1.4(a) and (b)(3). He said he would stipulate to the alleged violations and ask
the district court for a sentence that would place him in a halfway house in Tulsa.
But at the revocation hearing, when the district court asked Mr. Royer if he had failed
to submit required monthly reports for August through November 2021, he stated he
knew of only one such failure. The court then asked the government to call
Mr. Royer’s probation officer to testify.
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The probation officer testified that Mr. Royer initially submitted monthly
reports through May 2021, but after release from his Arkansas confinement, he did
not submit monthly reports for August through November 2021. In October she had
given him a report and asked him to submit it, but he never did. The officer also
testified that in May 2021, Mr. Royer had tested positive for and admitted to using
methamphetamine, and that he had missed thirteen drug tests.
Before cross-examining the officer, defense counsel asked for a continuance
because the matter had become contested. The court agreed the matter was now
contested but denied a continuance because the court was down one judge, each
judge’s docket had recently increased 350%, and the court was falling behind in its
criminal docket by twelve to fifteen cases per month.
With the motion denied, defense counsel then cross-examined the probation
officer about the monthly reports. She testified that she sometimes met with
Mr. Royer at his motel, and although it was possible he completed report forms she
gave him, she never received reports for August through November, and it was not
possible those reports were lost or misplaced. She also agreed that Mr. Royer was
arrested at the residence he had listed with the probation office.
After cross-examination of the probation officer, Mr. Royer testified. As to
the monthly reports for August through November 2021, he said that, except for one
month when he was recovering from surgery, his probation officer brought the report
to him at the motel where he was living, he would complete it, and she would take it
with her. He admitted he had used methamphetamine and tested positive for it. And
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he contended he had been drug-tested eight times per month and had never changed
his address.
The district court found Mr. Royer had admitted to violating a condition of
supervised release prohibiting the use of drugs and that the probation officer’s
testimony about the monthly-report and drug-testing violations was credible. After
some discussion about the viability of sentencing Mr. Royer to a halfway house or
transferring his supervision to New Mexico or Missouri, the district court denied his
motion for a variance, finding there were “no factors present . . . that separate this
defendant from the mine run of similarly situated defendants,” R., Vol. II at 40. The
court then sentenced him to ten months of imprisonment followed by twenty-six
months of supervised release. Mr. Royer appeals.
II.
Mr. Royer first contends the district court erred in denying his motion for a
continuance. Our review is for an abuse of discretion, and we “will only find error if
the district court’s decision was arbitrary or unreasonable and materially prejudiced
the defendant.” United States v. McClaflin, 939 F.3d 1113, 1117 (10th Cir. 2019)
(internal quotation marks omitted). To that end, we examine four factors in light of
“the individual circumstances of the case”: “(1) the diligence of the party seeking the
continuance; (2) the likelihood the continuance, if granted, would have accomplished
the stated purpose; (3) the inconvenience to the opposing party, witnesses, and the
court; and (4) the need for the continuance and any harm resulting from its denial.”
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Id. (internal quotation marks omitted). In this review, “[t]he final factor is the most
important.” Id. (internal quotation marks omitted).
Mr. Royer satisfies none of these factors. Regarding the first, he argues he
was diligent in requesting the continuance because the need for one arose only when
the probation officer testified about the monthly reports. But that situation was of his
own making. Mr. Royer had six weeks between his initial appearance and the
revocation hearing to review the allegations and contest them, but he instead led the
court and the government to believe he would stipulate to all of the alleged
violations. As to the third factor, a continuance clearly would have inconvenienced
not only the district court, whose docket was overloaded, but also government
counsel and the probation officer, each of whom would have had to make another
court appearance.
Regarding the second and fourth factors, Mr. Royer contends a continuance
would have allowed his attorney to gather exhibits and prepare defense witnesses
regarding his failure to submit monthly reports. But he fails to identify any such
evidence, positing only that his attorney “may have been able to provide
documentary evidence of his residence” or “narrow down time lines.” Aplt. Opening
Br. at 13. Moreover, although Mr. Royer maintained he was compliant with his drug
testing, he acknowledged he failed to submit at least one monthly report and he
admitted the third violation (use of methamphetamine). Each of those admitted
violations would have independently supported a Grade C violation. We therefore
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conclude he has not shown that a continuance would have accomplished his stated
purpose or that the denial of a continuance prejudiced him.
For these reasons, we hold that the district court did not abuse its discretion in
denying Mr. Royer’s motion for a continuance.
III.
Mr. Royer next contests the substantive reasonableness of his sentence. Our
review is for an abuse of discretion. United States v. McBride, 633 F.3d 1229, 1232
(10th Cir. 2011). The parties agree that the district court’s sentence was within the
advisory Guidelines range, so the sentence is presumptively reasonable. See id.
at 1232–33. But Mr. Royer may rebut the presumption “by demonstrating that the
sentence is unreasonable in light of the other sentencing factors laid out in 18 U.S.C.
§ 3553(a).” McBride, 633 F.3d at 1233 (brackets and internal quotation marks
omitted).
Mr. Royer argues it was substantively unreasonable to sentence him to
imprisonment rather than a halfway house. He posits that because he had no ties to
Oklahoma, a halfway house would have provided more structure than living in a
hotel, thereby assuaging the district court’s concern about his failure to keep his
probation officer informed of his address. He also contends that halfway-house
placement would have been most effective with respect to one of the § 3553
factors—“provid[ing] the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner,”
§ 3553(a)(2)(D).
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These arguments fail to rebut the presumption of substantive reasonableness.
The district court was aware of the factual underpinnings of Mr. Royer’s arguments
and his lack of ties to Oklahoma but rejected the idea of sentencing him to a halfway
house in Tulsa, finding he had “exhibit[ed] a pattern of noncompliance” and that a
within-Guidelines sentence would be “an adequate deterrent” to Mr. Royer and
others, “promote respect for the law, provide just punishment for the offense, and
provide protection for the public.” R., Vol. II at 41. Implicit in the district court’s
finding is that Mr. Royer’s pattern of noncompliance would likely continue at a
halfway house and placement in one would not be the most effective means of
preventing drug use or failures to report for drug tests or submit monthly reports.
We likewise reject Mr. Royer’s argument that the twenty-six-month term of
supervised release is substantively unreasonable. In support, he points out that his
violations were Class C violations, which is the lowest grade, see USSG § 7B1.1(a).
He adds that he thought he had complied with the reporting requirements, he had
only one positive drug test, and he had surgery in the fall of 2021 that affected his
probation officer’s ability to contact him in late October 2021 and his ability to meet
his drug-reporting requirements. And he observes that the second term of supervised
release is two months longer than his first term. But the district court clearly
disagreed with Mr. Royer’s view of the seriousness of his violations and rejected his
attempt to excuse his reporting requirements. We cannot say the district court abused
its discretion in that regard. And any limitations related to his fall 2021 surgery do
not account for violations that occurred prior to the surgery. Nor was the second
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term of supervised release substantively unreasonable simply because it was two
months longer than the first. Given the ten-month prison sentence, the district court
was permitted by statute to impose up to a twenty-six-month term of supervised
release.1 And the twenty-six-month term also fell within the Guidelines range for the
term of supervised release for his original offense, which was one to three years, see
USSG § 5D1.2(a)(2). This sentence was substantively reasonable given the pattern
of Mr. Royer’s noncompliance and the presumptive reasonableness of a
within-Guidelines sentence, which Mr. Royer has failed to rebut.
IV.
We affirm the district court’s judgment.
Entered for the Court
Joel M. Carson III
Circuit Judge
1
When supervised release is revoked and an individual is sentenced to prison
time, a court can include a term of supervised release after the imprisonment. See
18 U.S.C. § 3583(h). Such a term of supervised release cannot exceed the supervised
release term authorized by the statute for the original offense less any term of
imprisonment imposed upon revocation. Id. Mr. Royer’s original offense, charged
under 18 U.S.C. § 922(g)(1), was a Class C felony because the maximum term of
imprisonment was ten years. See 18 U.S.C. § 924(a)(2) (2019) (setting a ten-year
maximum term of imprisonment for § 922(g)(1) offense); id. § 3559(a)(3)
(classifying an offense as a Class C felony “if the maximum term of imprisonment
authorized is . . . less than twenty-five years but ten or more years”). And the
maximum term of supervised release for a Class C felony offense is three years.
§ 3583(b)(2). Thus, under § 3583(h) and the ten months of prison time the district
court gave, the court could impose up to twenty-six months of supervised release.
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