United States v. Bull , 459 F. App'x 795 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
March 14, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-8016
v. (D. of Wyo.)
VINCENT BAD HEART BULL, (D.C. No. 97-CR-00099-WFD)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.
Vincent Bad Heart Bull challenges the sentence he received for violations
of the terms of his supervised release. The district court sentenced him to 24
months in prison for the violations, all of which occurred within a few months of
his release from prison after serving a 15-year sentence under the Armed Career
Criminal Act. Bad Heart Bull now challenges the procedural and substantive
reasonableness of his sentence. He also argues that the new three year term of
*
This order and judgment is not binding precedent except under the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.
supervised release, coupled with two years in prison, exceeds the total amount of
supervised release time authorized by statute.
We conclude the sentence was reasonable and lawful, and AFFIRM the
district court.
I. Facts
After serving a 15-year prison term, Bad Heart Bull was released in
November 2010. His sentence included a three-year term of supervised release,
with a number of conditions. Despite these restrictions, within a short time after
his release he accumulated five violations for marijuana and prescription drug
use, and several alcohol-related offenses.
The final violation occurred in February 2011, when Bad Heart Bull, while
intoxicated, encountered a group of young children who, by his account, taunted
him with a racial epithet, calling him a “drunken Indian.” R. 30. He claims they
grabbed at him and that he tried to slap them away. In a different account of the
proceedings, which was included in the report that Bad Heart Bull pleaded no
contest to, a ten-year-old girl told the police that a drunk man, whom she later
identified as Bad Heart Bull, banged on the door and window of her dance class
building, frightening her, and later tried to grab her as she waited outside for her
mother to pick her up. He admits to slapping at the girls who were touching his
coat, but not to the more serious allegation of trying to grab a child.
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For this incident, he was charged in state court with, and pled no contest to,
being a “pedestrian under the influence of alcohol” in violation of Wyoming
Statute § 31-5-612 and to “unlawful contact” in violation of Wyoming Statute
§ 6-2-501(g)(i) and (h). He was sentenced to thirty days in jail and six months of
unsupervised probation.
In addition to the state criminal charges, these violations of supervised
release are all classified as Grade C violations of the terms of supervised release
under the United States Sentencing Guidelines. USSG § 7B1.1. Given Bad Heart
Bull’s criminal history, the Guidelines recommend a supervision revocation of 8
to 14 months for Grade C. The parties do not contest that this was the relevant
guidelines range.
The probation officer recommended an upward variance based on Bad
Heart Bull’s lengthy criminal history, the fact that the violations began almost
immediately after he was released from prison, and the risk he poses to the
community. Bad Heart Bull, during his allocution, asked the court to take into
account the hard work he was doing in counseling, the damage he suffered from
sexual abuse both as a child and as a prisoner, and his struggle to stay sober and
change his life. His lawyer also argued against an upward variance on these
grounds, saying that the court should instead give a sentence within the guidelines
range for these Grade C violations, followed by a long stint in residential drug
and alcohol therapy.
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The court sentenced Bad Heart Bull to 24 months of confinement and three
years of supervised release, specifying that the first six months of his supervision
would be served in an inpatient treatment facility. The court explained that its
decision to depart upward was based on the incident involving the young
girl—the “events that took place . . . as murky as they may be, raise a red flag for
the Court; that to simply sentence you within the guideline range does not achieve
a just sentence.” R. 58.
Bad Heart Bull objects to the adequacy of the district court’s explanation of
his sentence and the reasonableness of the length of that sentence.
II. Discussion
We review the procedural and substantive reasonableness of a sentence
under the familiar abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). We conduct this reasonableness review by “first ensur[ing] that
the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Id. We
then “consider the substantive reasonableness of the sentence imposed,” taking
into account “the totality of the circumstances.” Id.
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A. Procedural Reasonableness
Bad Heart Bull does not contest that the district court correctly calculated
the guidelines range or argue that the facts the court considered were inaccurate
or inappropriate. Instead, he argues the court failed to take into account all the
relevant factors under § 3553(a), erroneously focusing exclusively on community
protection. He claims that factor alone does not justify a 12-month increase in his
sentence above the sentencing guidelines recommendation. We disagree.
“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.C. § 3553(a).” United States v.
Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006) (citations omitted). These factors
include,
[T]he nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence imposed to
afford adequate deterrence, protect the public, and provide the
defendant with needed educational or vocational training, medical
care or other correctional treatment in the most effective manner;
pertinent guidelines; pertinent policy statements; the need to avoid
unwanted sentence disparities; and the need to provide restitution.
United States v. Contreras-Martinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005).
“The sentencing court, however, is not required to consider individually each
factor listed in § 3553(a), nor is it required to recite any magic words to show us
that it fulfilled its responsibility to be mindful of the factors that Congress has
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instructed it to consider before issuing a sentence.” Cordova, 461 F.3d at 1189(internal quotations and citations omitted).
At the sentencing hearing, the district court reviewed the “circumstances”
of the violations in detail, explaining why they were more serious than their low
classification would otherwise suggest, particularly the encounter with a ten-year-
old girl. The court listened to Bad Heart Bull and his attorney present mitigating
factors—the children allegedly used a racial taunt—but found that insufficient to
justify Bad Heart Bull’s reaction. R. 16–20, 24–34.
The district court also took into account “the history and characteristics of
the defendant,” discussing Bad Heart Bull’s lengthy criminal history and well-
documented substance abuse issues. R. 38–39. Bad Heart Bull had a long history
of alcohol abuse and had spent 33 of the last 37 years in prison. R. 41.
Given the district court’s evaluation of the § 3553(a) factors, Bad Heart
Bull argues that the court failed “to the provide the defendant with needed
educational or vocational training, medical care or other correctional treatment in
the most effective manner.” § 3553(a)(2)(D). Bad Heart Bull contends he would
be better served by more treatment and less incarceration. The court did consider
this factor and recommended that Bad Heart Bull participate in a drug treatment
program while in prison and a residential rehabilitation program after release. In
rejecting Bad Heart Bull’s request for more residential treatment, the court noted
Bad Heart Bull’s long history of unsuccessful treatment, particularly his decision
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to rebuff an opportunity to stay in a residential treatment program after his release
from prison in 2010: “There's no taunting little girl to blame for this. This—this
is an opportunity you had and you messed it up.” R. 24–25. In short, the court
considered the possibility of long-term residential treatment, and rejected it as
insufficient protection for the community and unlikely to succeed.
Finally, the court found Bad Heart Bull was a danger to the community and
that a two-year sentence was necessary “to protect the public from further crimes
of the defendant.” § 3553(a)(2)(C).
These violations, though they be Class C violations, send up
red flares to the Court that you, in your present condition, pose
a clear and present danger to the community and that a
sentence within the guideline range would not likely deter you
from future such conduct any more than the sentence at the
minimum range authorized by law which I imposed upon you
in 1998 served that purpose.
R. 57.
Given these findings, the court did not procedurally err in imposing Bad
Heart Bull’s sentence.
B. Substantive Reasonableness
Bad Heart Bull also argues that his sentence, which is ten months longer
than the recommended guidelines range, is substantively unreasonable.
Substantive reasonableness addresses “whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth
in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th
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Cir. 2008) (internal quotations omitted). “Although sentences imposed within the
correctly calculated Guidelines range may be presumed reasonable on appeal,
sentences imposed outside the Guidelines range may not be presumed
unreasonable.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008).
When we review a decision “to deviate from the Guidelines, we ‘consider the
extent of the deviation’ but give ‘due deference to the district court's decision that
the § 3553(a) factors, on a whole, justify the extent of the variance.’” Id.
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
The district court did not abuse its discretion in imposing an upward
departure of 10 months. The court carefully considered Bad Heart Bull’s criminal
history and inability to reenter society after a lengthy prison term. He continued
to abuse drugs and alcohol despite the conditions of his supervised release. The
court concluded the recommended sentencing guidelines under-represented the
seriousness of Bad Heart Bull’s violations and the threat he posed to the
community. The court provided for the treatment that Bad Heart Bull requested
and needs—but also looked at the danger he presents out of prison.
In sum, the district court did not abuse its discretion by sentencing Bad
Heart Bull to two years in prison for violating the terms of his supervised release.
C. Term of Supervised Release
At oral argument and in a letter submitted pursuant to Federal Rule of
Appellate Procedure 28(j), Bad Heart Bull claimed the district court imposed a
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subsequent term of supervised release that exceeded the statutory maximum under
18 U.S.C. § 3583(h). Under that provision, the amount of supervised release a
district court can impose as part of any revocation sentence is limited to “the term
of supervised release authorized by statute for the offense that resulted in the
original term of supervised release, less any term of imprisonment that was
imposed upon revocation of supervised release.” United States v. Hernandez, 655
F.3d 1193, 1198 (10th Cir. 2011) (quoting 18 U.S.C. § 3583(h)).
The total amount of prison time for revocation of supervised release plus
the new supervised release term ordered by the court cannot exceed the maximum
amount of supervised release time that the district court could have ordered for
the original offense. The classification of a felony for the purposes of calculating
supervised release depends on the maximum prison sentence that may be imposed,
unless otherwise specified. 18 U.S.C. § 3583(b). A five-year term of supervised
release is only authorized for Class A and Class B felonies. Id. Because Bad
Heart Bull committed a Class A felony, the authorized term of supervised release
is five years.
When imposing a subsequent term of supervised release under § 3583(h)
after revocation, the court is limited only by the authorized term of supervised
release, less any previous revocation sentences. United States v. Pla, 345 F.3d
1312, 1315 (11th Cir. 2003). It does not matter that Bad Heart Bull’s original
term of supervised release was only three years. What matters is the maximum
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term of supervised release authorized under the statute. United States v. Palmer,
380 F.3d 395, 397 (8th Cir. 2004). As the district judge explained to Bad Heart
Bull at his revocation hearing,
The length of the term of supervised release shall not exceed the term
of supervised release authorized by statute for the original offense
and then less any term of imprisonment imposed upon revocation of
supervised release . . . In this case, the statutory maximum would be
five years less any term of imprisonment imposed upon revocation.
That would also be the guideline range.
R. 21–22.
The district judge sentenced Bad Heart Bull to two years in prison, plus
three years of supervised release, adding up to the authorized total of five years.
Thus, the sentence does not violate § 3583.
III. Conclusion
Bad Heart Bull’s sentence for the violation of the terms of his supervised
release is procedurally and substantively reasonable. The sentence is affirmed.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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