United States v. Rupert

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 5, 2005

TENTH CIRCUIT
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 04-3466
v. (D.C. No. 04-CM-80023-JWL)
(District of Kansas)
GALE RENEE RUPERT,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.

Gail Renee Rupert was convicted for mail fraud, and was sentenced to six

months imprisonment with five years of supervised release. While serving

supervised release, she violated its terms. The district court revoked her

supervised release and sentenced her to the maximum sentence of three years

imprisonment for her violations. She appeals her sentence, arguing that it is

*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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judgment is not binding precedent, except under the doctrines of law of the case,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, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
unreasonable. We affirm.

At sentencing, Ms. Rupert stipulated that during her term of supervised

release, she intercepted approximately fifteen checks totaling approximately

$22,000 that were sent by mail to her employer. She admitted that she deposited

these checks into her own account without the knowledge or permission of her

employer, and that she did not disclose these transactions to her probation officer.

The district court found she had violated the conditions of her release because she

committed another crime, failed to abide by certain special financial conditions,

and failed to provide a truthful written monthly report. It explained its sentencing

decision in the following manner:

[T]his defendant has probably the most amazingly bad supervised release
performance I’ve seen in 13 years in terms of turning right around after
having been convicted and engaging in a pattern of lies and deception,
theft, and showing absolutely no remorse for it.
I believe the appropriate thing to do is to revoke her supervised
release, give her the maximum under the statute of three years in prison,
and hope that this time around she learns her lesson because I see no basis
here to believe that continuing to treat her with any degree of flexibility is
likely to benefit society or probably her. So that is what I intend to do.
....
In addition to what I’ve already said, I’ve considered the nature and
circumstances of the violations, the characteristics of the defendant, and the
sentencing objectives required by statute. The court has also considered the
advisory and nonbinding Chapter 7 policy statements issued by the
Sentencing Commission. The court therefore intends to revoke the
defendant’s supervised release and sentence her to a term of three years
with no supervised release to follow.

Rec., vol. I, doc. 18 at 26-27. The court further found:

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 The defendant’s criminal behavior during her original offense of
conviction involved defrauding employers and coworkers, obtaining
these individuals’ personal information, such as names and social
security numbers; she then used their identifiers to open up charge
accounts. She was sentenced to a short period of incarceration and
was released for supervision. She reverted back to that same form of
criminal activity almost immediately after placement on supervised
release. She has once again proven herself untrustworthy by
defrauding her employer of a large sum of money. She also failed to
comply with the objectives as outlined by the United States Probation
Office and has demonstrated complete disregard for the court. The
defendant’s actions warrant the most severe penalty that can be
levied by this court, and hopefully that will serve as a deterrent to
future such behavior.

Id. at 27-28.

Ms. Rupert argues that her sentence is unreasonable because it exceeds the

recommended term of confinement found in Chapter 7 of the United States

Sentencing Guidelines, it is significantly greater than the guideline range

applicable to her conduct had she been separately prosecuted in federal court, and

it is more than double the punishment that would have been imposed in a similar

state court prosecution.

“[W]e will not reverse a revocation sentence imposed by the district court if

it can be determined from the record to have been reasoned and reasonable.”

United States v. Contreras-Martinez, 409 F.3d 1236, 1240-41 (10th Cir. 2005)

(quoting United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004) (internal

brackets omitted)). In imposing a revocation sentence, the district court must

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consider the factors listed in various subsections of 18 U.S.C. § 3553(a) 1 and state

the reasons for its sentence. United States v. Kelley, 359 F.3d 1302, 1304-05

(10th Cir. 2004). It must also consider the policy statements in Chapter 7 of the

Sentencing Guidelines, but those “policy statements recommend a range of

imprisonment upon revocation of supervised release, and are advisory rather than

mandatory in nature.” Id. at 1305 (quotation marks omitted). In conducting our

analysis, we review the district court’s findings of fact for clear error, and its

legal interpretations of the Sentencing Guidelines de novo. Id. at 1304 (citation

omitted).

The record demonstrates that the district court considered the factors set

forth in § 3553(a) in imposing the maximum sentence of three years. In

particular, it focused on the need for deterrence, protection of the public, and

correctional treatment of Ms. Rupert. It also stated that it considered the Chapter

1
These factors include:
1) the nature and circumstances of the offense, 2) the history and
characteristics of the defendant, 3) the need for the sentence to afford
adequate deterrence to criminal conduct, 4) the need to protect the
public from further crimes of the defendant, 5) the need to provide
the defendant with needed training, medical care, or correctional
treatment, and 6) the sentencing range established under the
sentencing guidelines or the policy statements applicable to a
violation of supervised release.
United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004); see also 18 U.S.C.
§ 3553(a).

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7 policy statements and viewed them as advisory. It characterized Ms. Rupert’s

conduct as “probably the most amazingly bad supervised release performance I’ve

seen in 13 years” due to her repeated and unremorseful pattern of lying and theft.

Rec., vol. I, doc. 18 at 26. The district court’s sentencing decision was reasoned,

and there is nothing in the record that demonstrates it was not reasonable.

Ms. Rupert asserts that the best measure of reasonableness is a reference to

the guideline sentence for the offensive conduct underlying the supervised release

revocation. We have held that when sentencing for violation of the terms of

supervised release, the district court does not have a duty to consider the

guideline range applicable to the defendant’s original offense. Kelley, 359 F.3d at

1306, 1307 (noting that we have repeatedly “approved sentences above the

Chapter 7 range without any indication that the district court considered the

sentencing range that originally applied to the underlying offense”). Nor are we

persuaded the court has a duty to consider the sentence that would have been

imposed for the revocation violation conduct in either federal or Kansas state

court, as asserted by Ms. Rupert. Because the revocation sentence primarily

sanctions a defendant’s breach of trust, supervised release violators are not in a

comparable position to defendants facing initial sentencing for commission of the

crime underlying the revocation of supervised release. Cf. at 1307.

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For the foregoing reasons, we AFFIRM Ms. Rupert’s sentence.

ENTERED FOR THE COURT

Stephanie K. Seymour
Circuit Judge

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