United States v. Corley , 439 F. App'x 768 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
October 26, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-7013
v. (D.C. No. 6:97-CR-00039-FHS-1)
(E.D. Okla.)
ROBERT ALLEN CORLEY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
Robert Allen Corley appeals the sentence imposed following revocation of
his supervised release. The district court sentenced him to 50 months in prison,
four months above the range indicated by the United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”). Our jurisdiction arises from 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 1997, Mr. Corley entered guilty pleas to two counts of a numerous-count
indictment charging him and others with drug-trafficking and firearms crimes. He
entered guilty pleas to counts one and two: conspiracy to possess with intent to
distribute and distribution of methamphetamine, and money laundering. His
Guidelines sentencing range was 235 to 293 months. He was sentenced to 168
months in prison, to be followed by 60 months of supervised release. The
conditions of his supervised release included prohibitions on possessing a
controlled substance and possessing a firearm. R. Vol. 1 at 79. After serving 13
years, he was released from prison and he began his period of supervised release.
In February 2011, the United States Probation Office sought to revoke
Mr. Corley’s supervised release, asserting that he had violated the terms of
supervised release by illegally possessing a controlled substance and a firearm.
Those proceedings culminated in a final hearing, at which the district court heard
testimony from three witnesses. One testified, among other things, that he and
Mr. Corley went from Stidham to Oklahoma City in the spring of 2010, where he
observed Mr. Corley purchase methamphetamine from a man called “Monday.”
When they returned to Stidham, Mr. Corley gave the witness a rock of
methamphetamine, which he smoked. The district court also heard the testimony
of an agent with the Drug Enforcement Administration, showing that Mr. Corley
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had been in telephone contact with Monday 40 to 50 times between January and
June of 2010.
The district court also heard from Carrie Stachmus, whose testimony forms
the basis of this appeal. She admitted that she was a regular methamphetamine
user. She described a trip to Oklahoma City in the late spring or early summer of
2010 with Mr. Corley and his wife to purchase methamphetamine from her drug
connection there. She stated that Mr. Corley gave her $4000 to purchase
methamphetamine, but Mr. Corley rejected it because it “wasn’t quality, it was
cut,” R. Vol. 2 at 83. According to Ms. Stachmus, Mr. Corley told her to get his
money back, and when she could not, he and his wife “battered” her, and
Mr. Corley held a gun to her head. Id. at 89. Near the conclusion of her
testimony, the district court asked Ms. Stachmus when was the last time she had
used methamphetamine. She responded that she had not used methamphetamine
since the previous December, two or three months before the hearing. On her
way out of the courthouse, however, she told a victim-witness assistant that she
had lied to the judge about how long it had been since she had used
methamphetamine. This was promptly reported in open court. Defense counsel
objected to basing the revocation of supervised release on Ms. Stachmus’s
testimony. The district court then inquired whether the government had made a
deal with Ms. Stachmus in exchange for her testimony. The prosecutor responded
that no deal had been made with her, although she was not prosecuted as part of
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the broader drug conspiracy, “primarily because she wasn’t a significant enough
player in any of that for [the government] to be interested in her.” Id. at 146-47.
The prosecutor further reported that state charges were pending against
Ms. Stachmus but he also had made no deal with the state prosecutor.
The district court found that Mr. Corley had violated the conditions of his
supervised release, specifically that he illegally possessed a controlled substance,
methamphetamine, for the purpose of distribution. The court found Ms. Stachmus
not credible and therefore dismissed the firearms charge because it was based
solely on her testimony. The court noted that the other witnesses provided
sufficient evidence that Mr. Corley had possessed methamphetamine.
The district court advised Mr. Corley that the Guidelines sentencing range
for revocation of his supervised release was 37 to 46 months, and that the
statutory maximum was 60 months on count one (the drug charge) and 24 months
on count two (the firearms charge) of the original offenses. See 18 U.S.C.
§ 3583(e)(3).
The district court imposed a sentence of 50 months on count one and 24
months on count two, to run concurrently. In sentencing Mr. Corley, the court
noted that it had reviewed the applicable statutes and policy statement. The court
considered the nature and circumstances of Mr. Corley’s conduct, as well has his
criminal history and characteristics, and determined that the 50-month sentence
provided just punishment for noncompliance with the terms of his supervised
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release, was an adequate deterrent from criminal conduct, and promoted respect
for the law.
Mr. Corley appeals the 50-month sentence, contending that Ms. Stachmus’s
lie about how long it had been since she had used methamphetamine “corrupted
the evidentiary process.” Aplt. Br. at 23. Accordingly, he argues that the
sentence is substantively unreasonable.
Discussion
Our review of the district court’s application of the relevant factors for
revoking a term of supervised release and determining the sentence is deferential.
United States v. McBride, 633 F.3d 1229, 1231-32 (10th Cir. 2011). We will
affirm a revocation sentence if it is procedurally and substantively reasonable. Id.
at 1232. “A sentence in excess of that recommended by the Chapter 7 policy
statements will be upheld if it can be determined from the record to have been
reasoned and reasonable.” United States v. Steele, 603 F.3d 803, 807 (10th Cir.
2010) (internal quotation marks omitted) (brackets omitted). “To say that the
district court acted reasonably–either procedurally or substantively–is to say that
it did not abuse its discretion.” McBride, 633 F.3d at 1232. We will find an
abuse of discretion only if the sentence imposed is “arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Huckins, 529 F.3d
1312, 1317 (10th Cir. 2008) (internal quotation marks omitted).
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Mr. Corley does not challenge the revocation of his supervised release, nor
does he allege that his revocation sentence is procedurally unreasonable. He
contends that his sentence is substantively unreasonable because the district court
may have relied on Ms. Stachmus’s testimony in imposing an above-Guidelines
sentence.
There is no indication in the record that the district court’s decision to
impose an above-Guidelines sentence was influenced by Ms. Stachmus’s
testimony. To the contrary, the record makes clear that the court gave no weight
to her testimony. The court dismissed the firearms count because it was based
solely on her statement, and the court specifically noted that the testimony of the
other witnesses established the controlled-substance violation.
Moreover, the applicable policy statement supports an above-Guidelines
sentence. The district court is to consider “the applicable . . . policy statements
issued by the Sentencing Commission,” when deciding on a reasonable sentence
for violating a condition of supervised release. 18 U.S.C. § 3553(a)(4)(B).
“These policy statements . . . represent an expert assessment of appropriate
sentencing practices, often informed by empirical data regarding actual
sentencing practices.” McBride, 633 F.3d at 1232. The applicable policy
statement was U.S.S.G. § 7B1.4, pertaining to imprisonment upon revocation of
supervised release. Application note 4 to § 7B1.4 provides, “[w]here the original
sentence was the result of a downward departure . . . an upward departure may be
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warranted.” Mr. Corley’s original sentence was the result of downward departure.
Accordingly, an upward departure was warranted on the revocation sentence.
Applying our deferential standard of review, and “tak[ing] into account the
totality of the circumstances, including the extent of [the] variance from the
Guidelines range,” Gall v. United States, 552 U.S. 38, 51 (2007), we determine
that the sentence above the Guidelines range, but below the statutory maximum, is
substantively reasonable.
The judgment of the district court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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