FILED
United States Court of Appeals
Tenth Circuit
February 14, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 10-3206
OSIBISA MCBRIDE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 5:05-CR-40083-SAC-1)
Cyd K. Gilman, Federal Public Defender, (Marilyn M. Trubey, Assistant Federal
Public Defender, with her on the brief), District of Kansas, Topeka, Kansas, for
Defendant - Appellant.
Barry R. Grissom, United States Attorney, (James A. Brown, Assistant United
States Attorney), District of Kansas, Topeka, Kansas, for Plaintiff - Appellee.
Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.
HARTZ, Circuit Judge.
After Defendant Osibisa McBride admitted violating the terms of his
supervised release, the United States District Court for the District of Kansas
revoked his release and sentenced him to 12 months’ incarceration. See 18 U.S.C.
§ 3583(e)(3). Defendant appeals the sentence, claiming it was substantively and
procedurally unreasonable. We have jurisdiction under 28 U.S.C. § 1292 and
affirm. * Defendant has not overcome the presumption that his sentence, which
was within the range suggested by the United States Sentencing Commission’s
policy statements, was reasonable in length. And he has failed to satisfy his
burden of showing plain error arising from the district court’s alleged procedural
errors, to which he did not object below.
I. BACKGROUND
On November 15, 2006, Defendant pleaded guilty to possessing
ammunition after being convicted of a misdemeanor crime of domestic violence.
See 18 U.S.C. § 922(g)(9). He was sentenced to 51 months’ imprisonment and
two years of supervised release. One of the standard conditions of the supervised
release was that “the defendant shall refrain from excessive use of alcohol and
shall not purchase, possess, use, distribute, or administer any controlled
substances or any paraphernalia related to any controlled substances.” R., Vol. 1
at 24.
Defendant’s supervised release began on January 13, 2010, upon his release
from prison. On April 21 he was placed in a curfew program because of
*
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
ordered submitted without oral argument.
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violations of the terms of his release. And on May 18 he was ordered to live in a
residential re-entry center (a halfway house) because of additional violations.
While living there he twice tested positive for marijuana, tested positive for
alcohol, and signed out to work on a day he was not scheduled to work. On
July 14 his probation officer asked that the supervised release be revoked, and the
district court issued a warrant for Defendant’s arrest the next day.
At the revocation hearing Defendant stipulated to one of the six violations
alleged in the Probation Office’s petition for a warrant: his failure to comply
with the rules of the halfway house by consuming marijuana and alcohol. After
finding that Defendant had committed a Grade C offense and that his criminal-
history category was VI, the district court stated that it intended to impose a
12-month sentence. It explained:
The Court has considered the nature and circumstances, the
characteristics of the defendant, the sentencing objectives, and the
Court has considered the advisory non-binding Chapter 7 policy
statements. Specifically, the Court has considered the defendant was
referred to outpatient counseling and failed to comply. The Court
has also considered that the defendant failed to comply with the
residential re-entry center placement.
Id., Vol. 2 at 8. It then requested comments. The prosecutor said that he had no
objections to the proposed sentence. Defense counsel, however, requested that
Defendant be placed in “inpatient treatment rather than sending him back to
prison.” Id. at 9. Alternatively, she requested that the sentence be 12 months and
one day, although she did not explain why she sought the additional day. The
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court asked the probation officer for any comments on the request; the officer
responded that Defendant had failed treatment opportunities in outpatient
counseling and at a halfway house and that Defendant “could receive treatment
while he was in custody.” Id. at 11. The prosecutor then repeated that he thought
the proposed sentence was appropriate. The court “denie[d] the request of
defense counsel,” id., and imposed the proposed sentence. On the request of
defense counsel, the court recommended that Defendant be provided drug
treatment while in prison.
II. DISCUSSION
Before deciding whether to revoke a term of supervised release and
determining the sentence imposed after revocation, the district court must
consider the factors set out in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). 1 See 18 U.S.C. § 3583(e). Our review
1
18 U.S.C. § 3553 states in relevant part:
(a) Factors to be considered in imposing a sentence. The court shall impose a
sentence sufficient, but not greater than necessary, to comply with the purposes
set forth in paragraph (2) of this subsection. The court, in determining the
particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed—
....
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective
manner;
(continued...)
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of the court’s application of these factors is deferential. “[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, 1241 (10th Cir. 2005) (brackets and internal quotation
marks omitted). Under our current nomenclature, a “reasoned” sentence is one
that is “procedurally reasonable”; and a “reasonable” sentence is one that is
1
(...continued)
....
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to [28
U.S.C. § 994(a)(1)], subject to any amendments made to such guidelines by act of
Congress (regardless of whether such amendments have yet to be incorporated by
the Sentencing Commission into amendments issued under [28 U.S.C. § 994(p)]);
and
(ii) that, except as provided in [18 U.S.C. § 3742(g)], are in
effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing Commission
pursuant to [28 U.S.C. § 994(a)(3)], taking into account any amendments made to
such guidelines or policy statements by act of Congress (regardless of whether
such amendments have yet to be incorporated by the Sentencing Commission into
amendments issued under [28 U.S.C. § 994(p)]);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to [28 U.S.C.
§ 994(a)(2)], subject to any amendments made to such policy statement by act of
Congress (regardless of whether such amendments have yet to be incorporated by
the Sentencing Commission into amendments issued under [28 U.S.C. § 994(p)]);
and
(B) that, except as provided in [18 U.S.C. § 3742(g)], is in effect on
the date the defendant is sentenced[;]
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
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“substantively reasonable.” To say that the district court acted reasonably—either
procedurally or substantively—is to say that it did not abuse its discretion. See
United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008).
Defendant argues that his sentence was both substantively and procedurally
unreasonable. We first address substantive reasonableness.
A. Substantive Reasonableness
Defendant argues that it was substantively unreasonable for the district
court to refuse to give him a sentence of 12 months and one day, which would
have allowed him to earn good-time credit and thereby reduce his incarceration
time. We agree that such a sentence would have been reasonable. But Defendant
must do more than show that his preferred sentence was a reasonable one. In
virtually every case, many sentences would be reasonable. To obtain relief, he
must show that the actual sentence imposed was outside this range of
reasonableness. See United States v. Medley, 476 F.3d 835, 840 (10th Cir. 2007).
In assessing what sentence would be reasonable for violation of a condition
of supervised release, the district court has been instructed by Congress to
consider “the applicable . . . policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3553(a)(4)(B). These policy statements serve
essentially the same role as the now-advisory sentencing guidelines issued by the
Commission. They represent an expert assessment of appropriate sentencing
practices, often informed by empirical data regarding actual sentencing practices.
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See Rita v. United States, 551 U.S. 338, 348–50 (2007); U.S. Sentencing
Guidelines Manual (USSG) ch. 1, pt. A, at 4 (noting that Commission’s empirical
approach included analysis of “the United States Parole Commission’s guidelines
and statistics”). We have applied a presumption of reasonableness in reviewing
within-guidelines sentences imposed upon conviction. See United States v. Kristl,
437 F.3d 1050, 1055 (10th Cir. 2006). And the Supreme Court has upheld that
presumption because “when the judge’s discretionary decision accords with the
Commission’s view of the appropriate application of § 3553(a) in the mine run of
cases, it is probable that the sentence is reasonable.” Rita, 551 U.S. at 351.
For the same reason, that presumption is also appropriate in reviewing a
revocation-of-supervised-release sentence within the range suggested by the
Commission’s policy statements. We note that two other circuits that have
adopted the presumption in the original-sentence context have applied it to
revocation sentences. See United States v. Petreikis, 551 F.3d 822, 824–25 (8th
Cir. 2009); United States v. Polihonki, 543 F.3d 318, 322 (6th Cir. 2008). And
two panels of this court have adopted the same view in nonprecedential,
unpublished opinions. See United States v. Dodds, 385 Fed. App’x 829, 830
(10th Cir. 2010) (unpublished); United States v. Harsh, 368 Fed. App’x 873, 876
(10th Cir. 2010) (unpublished). We emphasize, however, that the presumption is
a rebuttable one. It may be rebutted “by demonstrating that the sentence is
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unreasonable in light of the other sentencing factors laid out in [18 U.S.C.]
§ 3553(a).” Kristl, 437 F.3d at 1055.
Here, Defendant’s sentence is entitled to the presumption of
reasonableness. His sentence was 12 months’ imprisonment. For a releasee such
as Defendant—who has committed a Grade C offense and has a criminal-history
level of VI—the policy statements recommend 8 to 14 months’ imprisonment.
See USSG § 7B1.4.
Defendant has not rebutted the presumption. He argues only that by
sentencing him to an extra day, the district court could have, in effect, reduced his
time in prison by making him eligible for good time. But he does not explain
why the court was unreasonable in ruling that the “longer” sentence was more
appropriate. We therefore reject Defendant’s challenge to the substantive
reasonableness of his sentence.
B. Procedural Reasonableness
Defendant contends that the district court committed two procedural errors
in imposing the sentence. First, he asserts that the district court considered
“allegations that had neither been stipulated to, nor proven by the presentation of
evidence.” Aplt. Br. at 5. He is apparently referring to the district court’s
statement that it had considered his failure to comply with the requirements for
both his outpatient counseling and his placement in a residential re-entry center.
Second, he complains that the district court did not indicate that it had considered
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his request for inpatient treatment instead of prison. Defendant, however, did not
raise either issue at the revocation hearing. Accordingly, we review for plain
error. See United States v. McComb, 519 F.3d 1049, 1054 (10th Cir. 2007). “We
will find plain error where 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.” Id. Defendant is not entitled to relief if he
fails to establish one or more of the four elements of plain error. See United
States v. Romero, 491 F.3d 1173, 1179 (10th Cir. 2007).
With respect to the first alleged procedural error, Defendant fails on the
third prong; he cannot show that the alleged error affected his substantial rights.
United States v. Zubia-Torres, 550 F.3d 1202 (10th Cir. 2008), is instructive. In
that case the defendant complained on appeal that no evidence had been presented
in district court that his state-court conviction had been for selling drugs rather
than just possessing them. See id. at 1204. But the government had not had
occasion to seek or produce the relevant documents because in district court his
defense counsel had not challenged the assertion in the presentence report that his
prior offense was for distributing drugs. See id. at 1208–09. And defense
counsel had never, even on appeal, presented evidence that the conviction was for
simple possession. See id. at 1209. We held that we would not remand absent a
showing that the sentencing would be different the second time. “[I]f appropriate
documents showed that [the defendant’s] conviction was for a drug trafficking
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offense,” we said, “then the [sentencing] enhancement would properly apply,
notwithstanding any legal error in the sentencing judge’s approach.” Id. We
reiterated this court’s longstanding rule that “factual disputes not brought to the
attention of the trial court do not rise to the level of plain error.” Id. at 1210
(brackets and internal quotation marks omitted).
Here, too, we will not reverse for plain error unless Defendant can show
that the result after remand (when the government will have an opportunity to put
on evidence regarding Defendant’s compliance with the rules governing him)
would probably be different. Yet Defendant has not even argued that the
government could not prove that he failed to comply with the terms of his
outpatient counseling or of his placement in a halfway house. Without showing
that the government could not prove these facts, Defendant cannot establish
prejudice. See id. at 1209–10. If the district court was relying on facts that were
disputed, Defendant should have objected at the time rather than awaiting appeal
and requesting that we remand for what might well be a futile enterprise.
As for Defendant’s claim that the district court did not consider his request
for inpatient treatment, he fails on the first prong of plain-error review. Contrary
to Defendant’s assertion, there was no error because the court explicitly rejected
his request to be placed in an inpatient facility. After expressing its tentative
views on an appropriate sentence and then hearing from defense counsel, the
probation officer, and the prosecution, it said, “Well, the Court denies the request
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of defense counsel.” R., Vol. 2 at 11–12. The court did not need to say more
than it did. When imposing a within-guidelines sentence after conviction, a court
is not required to discuss its reasons in detail; it need only provide “a general
statement of the reasons for its imposition of the particular sentence.” McComb,
519 F.3d at 1054 (internal quotation marks omitted). The Supreme Court has
explained why more is generally unnecessary:
[W]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation.
Circumstances may well make clear that the judge rests his decision
upon the Commissions’s own reasoning that the Guidelines sentence
is a proper sentence (in terms of § 3553(a) and other congressional
mandates) in the typical case, and that the judge has found that the
case before him is typical. Unless a party contests the Guidelines
sentence generally under § 3553(a)—that is argues that the
Guidelines reflect an unsound judgment, or, for example, that they do
not generally treat certain defendant characteristics in the proper
way—or argues for departure, the judge normally need say no more.
Rita, 551 U.S. at 356–57. The same rationale applies to sentences after
revocation of probation or supervised release when they are within the range
recommended by the Commission’s policy statements. The district court’s
comments adequately explained why it was imposing incarceration rather than
inpatient treatment.
III. CONCLUSION
We AFFIRM the judgment of the district court.
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