United States v. Olden , 694 F. App'x 649 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-5008
(D.C. No. 4:04-CR-00071-TCK-1)
GERALD LAMONT OLDEN, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
This appeal involves a disagreement over whether the defendant
admitted that he had committed a crime. The government alleges that the
defendant admitted a crime; the defendant denies doing so, claiming that
he admitted only certain allegations that did not constitute crimes. The
district court agreed with the government, and we affirm under the plain-
error standard.
*
We conclude that oral argument would not materially help us to
decide this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Thus, we are deciding the appeal based on the briefs.
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
The district court found the commission of a crime based on the
defendant’s admission. The district court revoked supervised release based
on the defendant’s violation of his conditions. The court then imposed a
new sentence based on a guideline range of 21 to 27 months. This
guideline range would have applied only if the defendant had violated the
condition prohibiting the commission of another crime; here, the
government claimed that the defendant had committed a crime consisting
of a false statement to a federal officer. 18 U.S.C. § 1001(a). 1 The
defendant acknowledges that he admitted violating some of the conditions,
but insists that he did not admit the commission of a crime involving a
false statement. And in the absence of such an admission, the defendant
contends that the district court committed plain error by finding that he
had violated the condition prohibiting the commission of a crime.
Any alleged error would not have been obvious. The defendant
acknowledges that he failed to object in district court and that this failure
triggers the plain-error standard. Under this standard, relief would be
available only if the district court had committed an obvious error. United
States v. Pablo, 696 F.3d 1280, 1290 (10th Cir. 2012). Applying this
1
The district court found nine other violations. But those violations
would not have triggered a guideline range of 21 to 27 months.
2
standard, we conclude that if the district court had erred, the error would
not have been obvious. 2
To determine whether the defendant’s statements constituted an
admission, we consider the totality of circumstances. United States v. Fay,
547 F.3d 1231, 1235 (10th Cir. 2008). The totality of circumstances could
reasonably have indicated an admission that the defendant had violated
§ 1001(a).
In seeking revocation of supervised release, the government alleged
false statements to the probation office regarding the defendant’s address,
vehicles, and telephone number. At the hearing, the district court asked
defense counsel whether the allegations were admitted or in dispute.
Defense counsel responded: “They’re not in dispute, sir. We had intended
to waive the right to have the hearing today and stipulate to the
allegations.” R., vol. II at 34. With this statement, the court asked the
defendant if he understood what his attorney had just said. The defendant
answered that he did. Id. To this point, the admission appeared airtight.
But the defendant relies on what happened next. The court recounted
the allegations and asked the defendant if they were true. Id. at 35. He
answered: “Some of it is, Your Honor.” Id. He explained that the issue
with his telephone was a misunderstanding, but admitted that he had driven
2
We need not decide whether an error took place.
3
his cousin’s vehicle and had not told his probation officer that he was in
the process of moving, which he acknowledged “was wrong.” Id.
The defendant points to his comment at the revocation hearing that
only “[s]ome of” the allegations were true. See id. But the defendant then
admitted that he had driven his cousin’s vehicle and had not told his
probation officer that he was moving, which were two of the things he was
accused of lying about. Although the defendant minimized the severity of
his false statements, he did not deny making them with the knowledge that
they were false.
In light of this exchange, the district court did not commit an obvious
error in concluding that these false statements had constituted a crime
under § 1001. Thus, the district court did not commit plain error by finding
the violation of a supervised-release condition involving the commission of
a crime.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
4