United States v. McManis ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
February 6, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 14-1416
(D. Colorado)
JEREMY ALLEN McMANIS, (D.C. No. 1:13-CR-00293-RM-1)
Defendant – Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 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This order and judgment is not binding precedent, except under the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. 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. 32.1.
Defendant and Appellant, Jeremy Allen McManis, appeals the fourteen-
month sentence imposed following the revocation of his supervised release.
Concluding that the sentence is substantively reasonable, we affirm.
BACKGROUND
Mr. McManis was convicted in the Colorado federal district court of
possession and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). This conviction was based on three incidents in which Mr. McManis
sold cocaine to an undercover agent on the Fort Carson military base in Colorado
Springs, Colorado. Mr. McManis had recently been discharged from the Army,
after serving in Afghanistan. He was sentenced to five months in prison,
followed by three years of supervised release.
Mr. McManis’s supervised release commenced in February 2014, when he
was released from prison and placed in a halfway house in Colorado Springs.
Several months later, he violated numerous conditions of his supervised release:
he was caught with a cell phone, a prohibited device in the halfway house; he
adulterated two random urine screens; he admitted smoking synthetic marijuana
and took Percocet belonging to someone else; and he refused to wear a GPS
monitoring device, as instructed by his probation officers. As a result of these
violations, the halfway house terminated Mr. McManis’s placement there and his
probation officer requested a warrant for his arrest.
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In July of 2014, a Colorado Highway Patrol officer stopped Mr. McManis
and found him in possession of false identification. He was arrested on
outstanding warrants and pled guilty in state court to one count of falsifying his
identity.
In September 2014, Mr. McManis’s probation officer filed a report
charging him with three separate violations of his supervised release: (1) failure
to reside in a residential re-entry facility; (2) failure to participate in drug
treatment, as directed by his probation officer; and (3) failure to comply with the
law, based on his state court conviction for falsifying his identity.
In October 2014, the district court held a supervised release violation
hearing, at which Mr. McManis’s supervised release violations were classified as
Grade C violations under the United States Sentencing Commission, Guidelines
Manual (“USSG”). See USSG § 7B1.1(a)(3). With a criminal history category of
I, the Guidelines policy statement recommended an imprisonment sentence of
three to nine months. U.S.S.G. § 7B1.3. After warning the parties that the court
was inclined to impose a longer sentence than the recommended three to nine
months, the court ultimately imposed a sentence of fourteen months’
imprisonment, followed by twenty-two months of supervised release. This appeal
followed.
DISCUSSION
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“We review all sentences, including those imposed for violations of
supervised release, for reasonableness.” United States v. Rausch, 638 F.3d 1296,
1302 (10th Cir. 2011). That reasonableness standard requires deference to the
district court “under the ‘familiar abuse-of-discretion standard of review.’”
United States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010) (quoting Gall v.
United States, 552 U.S. 38, 46 (2007)). More specifically, “‘[w]e will not reverse
a sentence following revocation of supervised release if the record establishes the
sentence is reasoned and reasonable.’” United States v. Vigil, 696 F.3d 997, 1001
(10th Cir. 2012) (quoting United States v. Handley, 678 F.3d 1185, 1188 (10th
Cir. 2012)); United States v. Lamirand, 669 F.3d 1091, 1093 (10th Cir. 2012).
“Under our current nomenclature, a ‘reasoned’ sentence is one that is
‘procedurally reasonable’; and a ‘reasonable’ sentence is one that is
‘substantively reasonable.’” United States v. McBride, 633 F.3d 1229, 1232 (10th
Cir. 2011).
“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).” Id. at 1231 (citing 18 U.S.C.
§ 3583(e)). The court must also consider “the policy statements in Chapter 7 of
the Sentencing Guidelines.” Vigil, 696 F.3d at 1002.
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Mr. McManis argues his sentence is substantively unreasonable for two
reasons: (1) “it is unreasonably harsh in light of the relatively minor nature of his
violations, especially since his sentence on supervised release exceeded by far the
punishment he received for the more serious underlying offense;” and (2) it is
“unreasonable . . . because the district placed too little weight on the effects of
. . . [his] addiction to pain-killing opiates and the trauma he suffered as a soldier
in Afghanistan.” Appellant’s Br. at 4-5. He does not claim that the district court
failed to consider the relevant sentencing factors of policy statements; rather, he
challenges the district court’s ultimate sentencing determination made following
its allegedly inadequate consideration of those factors.
At the hearing concerning the revocation of Mr. McManis’s supervised
release, the probation officer and the prosecutor agreed that a six-month sentence
was appropriate. Mr. McManis urged a sentence of two to three months, at the
low end of the advisory range of three to nine months suggested by the
Guidelines. As indicated above, the district court expressed early on its
disinclination to sentence Mr. McManis to the Guidelines sentence or that
recommended by the prosecutor.
The court explained its reasoning very clearly. The court recognized that
Mr. McManis’s violations of his supervised release were not “egregious” when
viewed in isolation. Tr. of Supervised Release Hr’g (“Sup. Rel. Hr’g”) at 12; R.
Vol. III at 15. Nonetheless, when “put . . . in context . . . the shape of the things
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changes a little bit.” Id. When viewed as a whole, as the government states, Mr.
McManis’s conduct “demonstrated a disturbing pattern of deception and
arrogance.” Appellee’s Br. at 6. The court recounted Mr. McManis’s history of
being discharged from the military for his involvement in a “prescription drug
deal.” Tr. of Sup. Rel. Hr’g at 13; R. Vol. III at 16. Even though he was placed
on probation for that offense, the court noted that Mr. McManis did not alter his
conduct, but rather “start[ed] selling . . . powder cocaine . . on the military base.”
Id. The district court further recounts that Mr. McManis:
continues to, while he is on probation from the state and on bond
here, he is having hot UAs and having problems. A warrant is issued
for his arrest, and he is brought into custody here, and he comes at
sentencing and he gets a break, just as he did in the state. It’s
probation. Here he gets a split. . . . Within a couple of months [in
the halfway house], he is committing every violation conceivable.
Id. As the district court goes on to state, Mr. McManis’s “approach to things is,
I’m just going to thumb my nose at you,” and “he has blown off anybody and
everybody who stuck their hand out in an offer to try and get him on the right
path.” Id. The court summed up its analysis as follows:
There is an abject consistency to [Mr. McManis’s] conduct from
before, all the way up to now, and the message that flows from that
conduct is, I’m going to do what I damn well please, and – because
nothing really bad is going to happen to me, and if five months didn’t
get the message through to him the last time, I’m not going to sit
here and pretend that six months is going to get the message through
to him.
Id. at 14; R. Vol. III at 17.
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Thus, while Mr. McManis’s underlying crime of selling powder cocaine
was not necessarily as serious as other possible crimes, and even his particular
violations of supervised release were unexceptional, the court considered the
totality of Mr. McManis’s history, conduct and attitude. As we have stated
numerous times, “[t]he violation of a condition of supervised release is a breach
of trust and, while the sentencing court at revocation takes into account the
seriousness of the underlying crime, it is primarily the breach of trust that is
sanctioned.” United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir.
2005) (citing U.S.S.G. Ch. 7, pt. A, introductory cmt.); see Vigil, 696 F.3d at
1002 (“[A]t revocation the court should sanction primarily the defendant’s breach
of trust, while taking into account, to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator.”). The district court
accordingly sentenced Mr. McManis to fourteen months, stating that “I’m going
to get your attention, because I think I need to. I think you are young. I think
you have got a life in front of you. If you choose to have one.” Tr. of Sup. Rel.
Hr’g at 26; R. Vol. III at 29. We therefore perceive nothing unreasonable in the
district court’s sentence of fourteen months despite his lesser sentence for the
underlying conviction and his non-egregious supervised release violations.
Mr. McManis also argues the district court imposed an unreasonable
sentence because it failed to accord proper weight to his post-traumatic stress
syndrome (“PTSD”) and his opiate addiction. As the government noted, we have
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stated that “[t]he weight a district court assigns to each of the § 3553(a) factors,
and the balance it ultimately assesses among them, is not subject to [this court’s]
de novo review.” Martinez, 610 F.3d at 1229. “‘[A]s long as the balance struck
by the district court among the factors set out in § 3553(a) is not arbitrary,
capricious, or manifestly unreasonable, we must defer to that decision even if we
would not have struck the same balance in the first instance.’” Id. (quoting
United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008)).
The record makes it clear that the district court was aware of Mr.
McManis’s PTSD and his addiction. But the court also noted that Mr. McManis
had “blow[n] off” possible PTSD treatment while he was in the military. Tr. of
Sup. Rel. Hr’g at 12; R. Vol. III at 15. The court similarly acknowledged Mr.
McManis’s addiction, but again stated that he had “blown off anybody and
everybody who stuck their hand out in an offer to try and get him on the right
path.” Id. at 13; R. Vol. III at 16. The court did not ignore or fail to consider Mr.
McManis’s PTSD and addiction; rather, it simply weighed them in a manner with
which Mr. McManis disagrees. That is insufficient to convince us that the
sentence imposed is unreasonable.
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CONCLUSION
For the foregoing reasons, we AFFIRM the sentence in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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