United States v. Wrobel , 361 F. App'x 939 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 21, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5042
JOSHUA SETH WROBEL, (D.C. No. 4:03-CR-00121-JHP-1)
(N. D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, 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); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
Defendant Joshua Seth Wrobel appeals from the twenty-four month
sentence imposed by the district court for violation of the terms of his probation.
*
This order and judgment is not binding precedent, except under the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.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I
In February 2004, Wrobel pled guilty to a charge of interference with flight
crew members and attendants in violation of 49 U.S.C. § 46504. The district
court sentenced him to a term of three years’ probation.
In September 2005, the probation office alleged that Wrobel committed
three violations of his terms of probation. The probation office alleged that
Wrobel failed to submit written monthly reports for July and August 2005,
Wrobel failed to advise the probation office of his whereabouts, and Wrobel
missed ten urinalysis testing dates. In January 2006, Wrobel stipulated to these
violations. The post-sentence investigation report (PSI) indicated that Wrobel
had three convictions for cocaine possession, which resulted in probationary or
suspended sentences. The PSI also noted that Wrobel had completed two
inpatient treatment programs and participated in out-patient counseling and
Cocaine Anonymous meetings. The district court extended Wrobel’s probation
for two years, for a total term of five years’ probation.
On February 6, 2009, Wrobel’s probation officer petitioned the district
court to revoke Wrobel’s probation. The probation office alleged that Wrobel had
tested positive for cocaine and he failed to submit to drug testing. These “Grade
C” violations, combined with Wrobel’s criminal history category of I, resulted in
a suggested sentence of three to nine months’ imprisonment under § 7B1.4(a) of
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the Sentencing Guidelines.
The probation office prepared a revocation and sentencing memorandum.
According to the memorandum, Wrobel had previously received inpatient drug
treatment on two occasions, and he relapsed both times. Additionally, the
memorandum noted that the district court had previously warned Wrobel in
connection with his prior probation violations. The memorandum recommended
that based on this history, Wrobel be sentenced above the guideline range in order
to allow Wrobel to complete the 500 Hour Comprehensive Drug Treatment
Program, noting that the Federal Bureau of Prisons recommends a term of
imprisonment of twenty-four months to complete the program.
Wrobel stipulated to these recent violations and proceeded to sentencing.
Wrobel called two witnesses: a counselor at the 12 & 12 halfway house and his
probation officer. After hearing the testimony, the district court revoked
Wrobel’s probation and sentenced him to a term of twenty-four months’
imprisonment, followed by twenty-four months’ supervised release. The district
court stated:
The Court recommends that the defendant participate in
the Bureau of Prisons 500 hour comprehensive drug abuse
program. The Court has considered the violation policy
statements of Chapter 7 of the United States Sentencing
Guideline manual now in effect and view [sic] those
policies as advisory in nature for the purpose of these
proceedings. The Court has also considered the nature and
circumstances of the violation conduct and characteristics
of the offender. . . . The Court has taken into consideration
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the treatment effort that the defendant has engaged in and
finds a custody term is necessary. Joshua Seth Wrobel has
previously been warned by this Court regarding his
possession and use of illicit drugs. Despite being
previously warned and based on the nature of the
violations and the need to protect the public, the Court
believes that a lengthy imprisonment term above the
prescribed guideline range is not only justified, but
necessary. Said sentence is reasonable, provides just
punishment for noncompliance, is an adequate deterrent to
criminal conduct, promotes respect for the law, and
provides the defendant with the opportunity to obtain
correctional treatment in the most effective manner.
ROA, Vol. II at 39.
II
Wrobel appeals the reasonableness of the term of twenty-four months’
imprisonment; he does not contest the revocation of probation itself. “[I]t is now
axiomatic that 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. Cordova, 461 F.3d 1184, 1188 (10th
Cir. 2006) (quotations omitted) (supervised release revocation). This is the same
analysis as the reasonableness standard of review under United States v. Booker,
543 U.S. 220 (2005). See United States v. Contreras-Martinez, 409 F.3d 1236,
1241 n.2 (10th Cir. 2005); see also United States v. Moulden, 478 F.3d 652, 655
(4th Cir. 2007) (treating probation revocation and supervised release revocation
sentences similarly). Reasonableness is comprised of two components:
procedural and substantive reasonableness. United States v. Zapata, 546 F.3d
41179, 1192 (10th Cir. 2008). It does not appear that Wrobel raises any procedural
challenge to the calculation of his sentence, but rather focuses upon the
substantive reasonableness of his sentence.
Wrobel contends that the sentence of twenty-four months’ imprisonment is
unreasonable in light of the Chapter 7 policy statement’s recommendation of three
to nine months’ imprisonment. In reviewing a sentence following revocation of
probation, “we consider the substantive reasonableness of the length of the
sentence under an abuse-of-discretion standard.” United States v. Miller, 557
F.3d 919, 922 (8th Cir. 2009); see also United States v. Silva, 443 F.3d 795, 798
(11th Cir. 2006); United States v. Reber, 876 F.2d 81, 83 (10th Cir. 1989). “A
district court abuses its discretion when it renders a judgment that is arbitrary,
capricious, whimsical, or manifestly unreasonable.” United States v. Landers,
564 F.3d 1217, 1224 (10th Cir. 2009). This standard “applies without regard to
whether the district court imposes a sentence within or outside the advisory
Guidelines range.” United States v. Friedman, 554 F.3d 1301, 1308 (10th Cir.
2009).
Upon review of the record, including the transcript of the revocation
hearing, we conclude that the district court committed no error in sentencing
Wrobel. The court clearly considered the nature and circumstances of the
violations, Wrobel’s history and characteristics, and the need for the sentence to
protect the public and provide Wrobel with incentives to alter his pattern of
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behavior. The district court noted that Wrobel had previously been warned about
violating the terms of his probation. Additionally, the district court considered
that custody was necessary to help treat Wrobel’s substance abuse problem and
recommended that Wrobel participate in the drug rehabilitation program, which
recommends a sentence of twenty-four months’ imprisonment. The district court
took into account the Chapter 7 policy statements. Although the sentence
imposed was greater than the recommended range, the sentence was reasonable.
See Silva, 443 F.3d at 799 (district court did not abuse its discretion in imposing
a 24-month sentence following revocation of probation when Chapter 7
recommended three to nine months’ imprisonment); Cordova, 461 F.3d at 1189(concluding that a sentence of thirty-six months’ imprisonment following
revocation of supervised release was substantively and procedurally reasonable
even though the guidelines range was three to nine months’ imprisonment).
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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