United States v. Tedford

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 3 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-7079
MISTY LEE TEDFORD,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 00-CR-61-P)

Submitted on the briefs: *

J. Lance Hopkins, Tahlequah, Oklahoma, for Defendant-Appellant.

Sheldon J. Sperling, United States Attorney, and Linda A. Epperley, Assistant
United States Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma, for
Plaintiff-Appellee.

Before EBEL, McKAY, and HENRY, Circuit Judges.

*
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). The case is therefore submitted without
oral argument.
McKAY, Circuit Judge.

On April 25, 2001, Defendant was sentenced to thirty-six months’

incarceration with the Bureau of Prisons to be followed by sixty months’

supervised release for her involvement in a drug conspiracy in violation of 21

U.S.C. § 846. After completing her term of imprisonment, Defendant began her

term of supervised release. On April 7, 2003, the Probation Office filed a

Petition to revoke Defendant’s supervised release based on four alleged violations

of the conditions of her supervised release: (1) commission of a state crime, (2)

failure to notify her probation officer within seventy-two hours of her arrest, (3)

failure to pass seven drug tests, and (4) continuation of a relationship with a

known convicted felon. Defendant admitted to all four allegations.

Based on a combination of Defendant’s criminal history and the nature of

the violations, the recommended sentence pursuant to the Sentencing Guidelines

was between five and eleven months of incarceration. The district court imposed

a sentence of forty-eight months. Defendant appealed. After consideration of the

issues presented, we remanded with directions for the district court to more

adequately explain the reasons for imposing its sentence. United States v.

Tedford, 92 Fed. Appx. 738, 740 (10th Cir. 2004).

On July 16, 2004, the district court held an evidentiary hearing relating to

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Defendant’s resentencing. During that hearing, both Defendant and her fiancé

testified. After receiving the testimony, the district court again imposed a forty-

eight month sentence of incarceration. In so doing, the district court considered

the violation policy statements in Chapter 7 of the United States
Sentencing Guideline Manual in effect and view[ed] those policies as
advisory in nature for the purposes of the[] proceedings. [The district
court] considered the nature and circumstances of the violation of
conduct, which included that [Defendant was] convicted of a state
crime while on supervised release; . . . that [Defendant] failed to
notify [her] probation officer within seventy-two hours of [her] arrest
on the state charge; that [Defendant] failed seven drug tests; and that
[she] continued a relationship with a convicted [felon]. All of these
violations convinced the Court that [Defendant had] no regard or
respect for the rules and conditions of supervised release, and that it
would, therefore, be a waste of the limited resources of the probation
office to have to continue supervision over a defendant who has
repeatedly violated the terms of her supervised release. Additionally,
at the time of [Defendant’s] original sentencing, this Court
considered the fact that [she was] pregnant, and the impact that
continued drug use would have upon [Defendant’s] unborn child. A
sentence outside of the range called for by the application of the
guidelines provides just punishment for [her] non-compliance [and]
is an adequate deterrent to future criminal conduct, and perhaps will
instill some respect for the law in [Defendant].

Rec., Vol. III, at 28-29.

Although the Supreme Court’s decision in United States v. Booker altered

our standard of review for most sentencing cases, the standard of review for cases

where the defendant challenges the revocation of her supervised release remains

the same. 1 See United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 766 (2005)

1
We note that the Eighth Circuit has taken an identical position on this
(continued...)

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(citing United States v. Tsosie, 376 F.3d 1210, 1218-19 (10th Cir. 2004), as an

example of an application of the reasonableness standard of review). Hence, in

this case, we will follow the law as articulated by Tsosie, wherein we stated that

imposition of a sentence in excess of that recommended by the Chapter 7 policy

statements of the Sentencing Guidelines will be upheld “if it can be determined

from the record to have been reasoned and reasonable.” Tsosie, 376 F.3d at 1218

(internal quotation omitted).

Defendant’s first contention is that her sentence was unreasonable because

the district court did not “adequately consider[] the Chapter 7 policy statements.”

Aplt’s Br. at 7-9. In imposing sentences after revocation of supervised release,

district courts are obligated to consider Chapter 7’s policy statements. United

States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004) (citation omitted). Magic

words, however, are not required to demonstrate fulfillment of this requirement.

See id.

Prior to imposing a sentence in the present case, the district court stated

that it considered the Chapter 7 policy statements, viewed them as advisory, and

then articulated the reasons warranting a sentence outside the recommended

Guideline range. Rec., Vol. III, at 28-29. In so doing, the district court fulfilled

its responsibility to adequately consider the Chapter 7 policy statements. See

1
(...continued)
issue. See United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005).

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United States v. Lee, 957 F.2d 770, 775 (10th Cir. 1992) and United States v.

Brooks, 976 F.2d 1358, 1360 (10th Cir. 1992) cited in Kelley, 359 F.3d at 1305.

To be clear, we do not hold that Defendant’s sentence, which is more than four

times the outside limit of the recommended Guideline range, to be reasonable.

We hold that the sentence is not unreasonable for the reasons presented by

Defendant – that the district court failed to adequately consider the Chapter 7

policy statements.

Defendant’s second contention attacks the district court’s reasoning in

support of its sentence. Defendant claims the district court’s consideration of the

Probation Office’s resources was an improper factor to rely on in imposing the

sentence because it is not an enumerated factor in the Guidelines. Aplt’s Br. at 9-

10. We review de novo the district court’s interpretation of the Guidelines.

United States v. Burdex, 100 F.3d 882, 884 (10th Cir. 1996).

The Sentencing Guidelines set forth factors that must be considered, see

United States v. White, 244 F.3d 1199, 1204 (10th Cir. 2001) (citing 18 U.S.C. §

3553(a)), but that list is not all-inclusive. In addition, when read in context, the

factor to which Defendant objects, the resources of the Probation Office, does not

reflect an impermissible analysis of federal penal resource allocation. The district

court stated that it would “be a waste of the limited resources of the probation

office to have to continue supervision over a defendant who has repeatedly

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violated the terms of her supervised release.” Rec., Vol. III, at 28. The district

court merely recognized the futility of continued supervision, a consideration

implicit in the Congressional grant of authority to revoke one’s supervised

release. See 18 U.S.C. § 3583(e)(3).

AFFIRMED.

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