United States v. Osborn ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT May 29, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-7081
(E.D. Oklahoma)
RONALD EARL OSBORN, (D.C. No. 6:10-CR-00019-RAW-1)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
Defendant Ronald Earl Osborn challenges the substantive reasonableness of his
sentence after the second revocation of his supervised release. The United States District
Court for the Eastern District of Oklahoma sentenced Defendant to 12 months’
*
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. This order and judgment is not binding precedent, except under the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.
imprisonment, one month above the range specified by the United States Sentencing
Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and
we affirm.
In May 2010 Defendant pleaded guilty to being a felon in possession of a firearm,
see 18 U.S.C. § 922(g)(1); possession of an unregistered firearm, see 26 U.S.C. §§ 5845,
5861(d), and 5871; and being a felon in possession of explosive materials, see 18 U.S.C.
§ 842(i)(1). The district court sentenced him to 37 months’ imprisonment and 24 months
of supervised release. He began his term of supervised release on November 30, 2012.
Shortly thereafter, he began violating the conditions of his supervised release. According
to a report by the probation officer, he tested positive for marijuana and
methamphetamine on December 5, 2012, and admitted to using methamphetamine in
April 2013. The probation officer instructed Defendant to participate in substance-abuse
therapy through the Veterans Administration (VA) and said that he would be subjected to
more frequent urine tests; but no court action was requested, and the court did not take
action. In June 2013 the probation officer submitted a second report stating that
Defendant had admitted to using marijuana to celebrate his birthday. The probation
officer again instructed Defendant to participate in substance-abuse treatment through the
VA. Once again, the probation officer did not request court action and the court did not
take any. Four months later the probation officer submitted a report saying that
Defendant admitted to being in constant contact with James Cedric Baird, contrary to the
condition that he not associate with any person convicted of a felony. In addition, he had
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failed to report to the probation officer in July, August, and September. After receiving a
verbal reprimand from the probation officer, Defendant demonstrated a renewed sense of
purpose and indicated that he was taking steps to terminate all contact with Mr. Baird.
For a third time, the probation officer did not request court action and the court agreed.
On January 14, 2014, the probation officer petitioned the district court to revoke
Defendant’s supervised release because of his continuing violations of conditions of
supervised release. The petition said that in December 2013 Defendant was arrested and
charged with driving under the influence; driving with a suspended, canceled, or revoked
license; and failing to carry insurance verification. Moreover, Defendant failed to notify
his probation officer of this arrest within 72 hours of the arrest or in his monthly written
report. Finally, Defendant failed to report to his probation officer for an additional three
months. At the revocation hearing on March 6, 2014, Defendant stipulated to the
violations and the court sentenced him to three months’ imprisonment followed by 24
months of supervised release.
On July 1, 2014, the probation officer submitted a second petition to revoke
Defendant’s supervised release. The petition alleged that on June 6 and 11 Defendant
submitted urine samples that tested positive for methamphetamine. Also, two days after
an orientation meeting in which the probation officer instructed Defendant not to have
contact with Mr. Baird, the probation officer observed Mr. Baird inside Defendant’s
house. At the revocation hearing Defendant argued that the government was required to
call as a witness the lab technician who prepared the samples, and the court reset the
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hearing. At the rescheduled hearing the court considered only the violation related to
Defendant’s association with a convicted felon and not the drug-related violations.
Defendant did not contest the violation based on his contact with Mr. Baird.
The district court noted that the guidelines sentencing range was 5 to 11 months
for the supervised-release violation, and the statutory maximum was 21 months. The
government argued that the court’s prior leniency warranted a more significant
punishment. In mitigation, defense counsel explained that Defendant had lived with
Mr. Baird for approximately 15 years, he considered Mr. Baird to be family, and one of
Mr. Baird’s brothers took care of Defendant’s finances. The court then sentenced
Defendant to 12 months’ imprisonment without any supervised release, stating that he
had “shown little regard for the rules and conditions of supervised release.” R., Vol. II at
32.
On appeal Defendant argues that the sentence imposed was substantively
unreasonable. In assessing the substantive reasonableness of a sentence, we examine the
relevant factors set out in 18 U.S.C. § 3553(a). See United States v. McBride, 633 F.3d
1229, 1231‒32 (10th Cir. 2011). We review the reasonableness of “all sentences—
whether inside, just outside, or significantly outside the Guidelines range—under a
deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).
“A district court abuses its discretion when it renders a judgment that is arbitrary,
capricious, whimsical, or manifestly unreasonable.” United States v. Damato, 672 F.3d
832, 838 (10th Cir. 2012) (internal quotation marks omitted).
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Defendant contends that a 12-month sentence was not warranted in light of his
history and the nature and circumstances of his offense. See 18 U.S.C. § 3553(a)(1). He
argues that associating with a felon is a victimless offense and did not involve the
commission of a new crime; that the offense was merely self-harming and there was no
need to protect the public from Defendant or to be concerned about respect for the law,
see id. § 3553(a)(2)(A),(C); and that Mr. Baird was like family to him. But the guidelines
state that “at 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.” USSG ch. 7, pt. A, introductory
cmt. (b). And we have recognized that “[u]nder the guidelines, recidivism is generally a
reason for increased sentencing severity.” United States v. Steele, 603 F.3d 803, 809
(10th Cir. 2010) (footnote omitted). Here, Defendant repeatedly breached the court’s
trust by violating his conditions of supervised release. In fashioning a sentence, the
district court properly focused on Defendant’s disregard for the rules of supervision.
Further, Defendant had not responded to leniency. On three occasions the court did not
take any action in response to reports of Defendant’s supervised-release violations.
When the court revoked Defendant’s supervised release the first time, it imposed a prison
sentence below the advisory guidelines range. See USSG § 7B1.4(a) (5-11 month range
for grade C violation and criminal-history category III). Given this prior leniency, the
court’s imposition of a sentence one month above the guidelines range upon a second
revocation was eminently reasonable.
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Defendant has failed to demonstrate that the district court abused its discretion in
imposing a 12-month sentence.
We AFFIRM.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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