United States v. Threatt , 352 F. App'x 247 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
November 3, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-6137
v. (W.D. Oklahoma)
RICO LAMAR THREATT, (D.C. No. CR-03-00192-HE-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, Senior 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); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Rico Lamar Threatt appeals from the imposition of
a ten-month sentence following the revocation of his supervised release. We
affirm.
*
This order and judgment is not binding precedent except under the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
Mr. Threatt was initially charged in a one-count indictment with possession
of a firearm after previously being convicted of a felony. He pled guilty and was
sentenced to twenty-eight months’ imprisonment, followed by three years of
supervised release. After Mr. Threatt completed his first term of imprisonment,
he violated a condition of his supervised release. His release was revoked, and he
was sentenced to a new term of seven months’ imprisonment, followed by twenty-
eight months of supervised release.
While serving his second (twenty-eight month) term of supervised release,
a second revocation petition was filed, alleging that Mr. Threatt had once again
violated the conditions of his supervised release. Specifically, the petition
alleged that Mr. Threatt violated the terms of his supervised release by (1)
submitting urine specimens on four occasions in March and April 2009 which
tested positive for phencyclidine (PCP), and (2) admitting to his probation officer
on April 28, 2009 that he used PCP frequently during March and April of 2009.
On May 11, 2009, a revocation hearing took place. At the conclusion of
the hearing, the district court continued the hearing to June 22, 2009, to enable
Mr. Threatt to show that he could comply with the terms of his supervised release.
After the June 22 hearing, the district court determined that Mr. Threatt had
violated the terms of his supervised release and revoked it. Mr. Threatt was then
sentenced to ten months’ imprisonment, a sentence within the advisory range of
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six to twelve months stipulated by the United States Sentencing Commission,
Guidelines Manual (“USSG”). This appeal followed, in which Mr. Threatt argues
that the ten-month sentence imposed upon revocation of his term of supervised
release was unreasonable.
DISCUSSION
Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583, when
a person violates the conditions of his or her supervised release, the district court
may modify the conditions of release or revoke the term of supervised release and
impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304 (10 th Cir.
2004). “In imposing a sentence following revocation of supervised release, a
district court is required to consider both Chapter 7's policy statements, as well as
a number of the factors provided in 18 U.S.S. § 3553(a).” United States v.
Cordova, 461 F.3d 1184, 1188 (10 th Cir. 2006) (citations omitted). The district
court is not required, however, to consider individually each § 3553(a) factor, nor
“recite any magic words” before imposing a sentence. Id. at 1189. The district
court need only consider § 3553(a) en masse and state its reasons for imposing a
given sentence. Id.
Furthermore, following United States v. Booker, 543 U.S. 220 (2005), and
its progeny, we review all sentences for reasonableness, applying a deferential
abuse of discretion standard. See Rita v. United States, 551 U.S. 338, 351 (2007).
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This applies equally to sentences imposed following the revocation of a
defendant’s supervised release. See United States v. Contreras-Martinez, 409
F.3d 1236, 1241 n.2 (10 th Cir. 2005). Mr. Threatt argues that the ten-month
sentence imposed in this case is unreasonable because “the district court’s reasons
for the sentence were based primarily on Mr. Threatt’s severe drug problem . . .
[and] [t]he violations of supervised release committed in this case when viewed in
the context of Mr. Threatt’s otherwise law-abiding conduct are not of sufficient
magnitude to warrant a sentence of imprisonment of 10 months.” Appellant’s Br.
at 7.
After reviewing the entire record, we conclude that the sentence imposed
was reasonable. At the initial revocation hearing, on May 11, 2009, the district
court noted that Mr. Threatt’s case was not the typical case of repeated violations
of the terms of supervised release. Indeed, the court noted that Mr. Threatt had
been making efforts in many areas of his life to improve himself and avoid
violating his supervised release. Thus, the court observed:
THE COURT: Well, I can’t say there are a lot of good options here.
We’ve obviously wrestled with this on a number of occasions
resulting in the revocation once before. Frankly, in the normal
circumstance that I deal with when somebody has been revoked once
and they are back here for the same thing again, I have a strong
temptation to just revoke it again so that there’s some penalty for the
violation, and then go on down the line without any further
supervision. I mean, by the time we revoked the first time, revoking
is not the first thing we resort to. It’s kind of the last resort after
we’ve tried everything else. And so here we are with reuse again.
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Against that, this, too, is a little unusual with Mr. Threatt, and
that is he comes here unlike many in this circumstance with at least
some indication that he’s trying . . . he’s employed, apparently, and
trying to better himself through education and so on, and that’s not
true in a great many cases. And I, frankly, am frustrated at the
possibility of just sending him back to jail again, because I’m not
sure, apart from teaching a lesson for violating the terms, that that
ultimately helps solve anything. That may be where we end up.
...
I’ll just say that I’m not going to take any substantive action with
respect to the petition today, but I’m going to continue this hearing
until [June 22]. By that time there will have been additional [urine
tests] and . . . [b]y that time you will have had the opportunity to
explore this latest treatment plan to see if that works. . . . And as I
see it I’m giving you one last chance to prove to me that there’s a
reason for us not to just pull the plug and go on down the road. And
I very much hope that you’ll come in here in six weeks with no
problems in the meantime and still employed . . . you’ve got plenty
of reason to grab ahold of this and figure out a way to deal with the
drugs.
Tr. of 5/11/09 Revocation Hr’g at 16-18, R. Vol. 3.
The previously adjourned revocation hearing was again convened on
June 22, 2009. At that hearing, defense counsel revealed to the court that
Mr. Threatt admitted to the probation office that he had used drugs on a couple of
occasions since the last court hearing. After listening to all parties involved, the
court stated:
Well, this is a difficult situation, of course. We’ve been down this
road once before with Mr. Threatt, and I revoked him once
previously for the same sorts of violations. That revocation, of
course, came only after a variety of alternatives had been considered.
We’re now here again after multiple opportunities to try and address
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the concern with the drug use again, and we continue to not have any
luck.
I don’t minimize the difficulty of breaking an addiction like
this. On the other hand, it’s something that he’s going to have to
come to grips with and fix at some point if his life is ever to move in
other than an utterly self-destructive direction. And I don’t know
that there’s a good solution here, but it seems to me that under the
circumstances where we have . . . admitted multiple violations of the
terms of supervised release, apparently a long-running course of
conduct even since our rescheduled hearing that reflects the same
kind of ongoing violations, I think plainly there has to be
consequences for that.
And so I am going to find on the basis of the admitted
violations that the supervised release for Mr. Threatt should be and is
hereby revoked. He will be committed to the custody of the Bureau
of Prisons for a term of ten months. At the conclusion of that ten
months I, frankly, am disinclined to order some further period of
supervised release. . . . I will include with the commitment order to
the Bureau of Prisons a recommendation that he participate in
whatever drug abuse programs are reasonably available to him based
on the term of incarceration that I’m ordering now. But I think
basically we’ve done all that I know to do in terms of getting these
violations handled and dealing with Mr. Threatt’s situation.
As I say, it’s not a situation that I enjoy any more than
anybody else here does, but I think it’s what the law requires and
what the circumstances required, and that will be the order of the
Court.
Tr. of 6/22/09 Revocation Hr’g at 6-8, R. Vol. 3.
The district court’s ten-month sentence was reasonable. As indicated
above, in determining a sentence for a defendant following the violation of the
defendant’s terms of supervised release, the district court must consider both the
Policy statements of Chapter 7 of the USSG as well as factors set forth in
§ 3553(a). The range of imprisonment is calculated by reference to the revocation
table contained in USSG §7B1.4(a). Given that Mr. Threatt’s violation of his
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condition of release was a Class C, and his criminal history category was IV, the
applicable Guidelines advisory range was six to twelve months’ imprisonment.
The ten months imposed was within that range. Mr. Threatt does not specify what
policy statements or § 3553(a) factors should have suggested a different sentence
to the district court. Indeed, although the court was clearly particularly concerned
about Mr. Threatt’s repeated drug use, it stated that the sentence imposed was the
most appropriate given all the circumstances of the case. Further, the court made
every effort to permit Mr. Threatt to establish that he could comply with his
conditions of release before it reluctantly imposed the ten-month sentence. In
short, we cannot conclude that the district court abused its discretion in
sentencing Mr. Threatt, or imposed anything other than a reasonable sentence.
CONCLUSION
For the foregoing reasons, the sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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