United States v. Hunter , 464 F. App'x 754 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
March 7, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-1522
v. (D.C. No. 1:96-CR-00419-WYD-10)
(D. Colo.)
DARIAN HUNTER, a/k/a “D,”
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.
Darian Hunter appeals pro se 1 his sentence imposed after revocation of
supervised release. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Hunter is represented by counsel in this appeal, but the court granted in
substantial part his motion to proceed on appeal pro se, permitting him to file his
own briefs and motions. The court did not remove Hunter’s appointed counsel,
but excused counsel from responsibility for preparing briefs or motions unless
otherwise directed by the court. We liberally construe Hunter’s pro se filings.
See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
§ 3742(a), we affirm.
I. Background
In October 2000, Hunter was sentenced to 92 months’ imprisonment and
four years’ supervised release on a conviction for attempt to possess cocaine with
intent to distribute, an offense he committed in September 1996. He began his
term of supervised release upon release from custody in April 2005. On May 3,
2007, Hunter’s probation officer submitted a Petition on Supervised Release,
asking the district court to issue a summons to Hunter based upon his violations
of the terms of his supervision. The Petition detailed eight alleged violations,
including convictions for driving while ability impaired (DWAI) and driving
under restraint; three incidences of possession and use of a controlled substance;
excessive use of alcohol; failure to participate in a drug treatment program; and
failure to report an arrest for driving under revocation. The probation officer
later amended the Petition, adding two more violations: an additional charge of
failure to report an arrest and another arrest for driving under restraint.
The district court scheduled a hearing on Hunter’s supervised release
violations for August 3, 2007. But Hunter ceased reporting to his probation
officer, and a warrant for his arrest was issued on June 13, 2007. Hunter
remained a fugitive until he was arrested in August 2010. His supervised release
violation hearing was rescheduled for October 25, 2010.
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Hunter’s probation officer submitted a Supervised Release Violation Report
and a Sentencing Recommendation, in which he calculated Hunter’s advisory
imprisonment range as eight to fourteen months under the policy statements in
Chapter 7 of the United States Sentencing Guidelines Manual (Guidelines
Manual), § 7B1.4. 2 This range was based on Hunter’s Grade C violations and
criminal history category of VI. See id. The probation officer noted that a
departure from the advisory range may be warranted, based on Hunter’s repeated
violations of the terms of supervision and his absconding for three years. The
probation officer recommended a two-year sentence, followed by two years of
supervised release with special conditions. Hunter filed a response to the
Supervised Release Violation Report and Sentencing Recommendation in which
he admitted nine of the ten alleged violations. He did not otherwise raise any
objections, indicating only that he would present evidence in mitigation at the
hearing.
Hunter’s counsel argued against the probation officer’s sentence
recommendation at the hearing. She contended that Hunter’s failure to report to
his probation officer should not be considered “absconding” because he remained
in the Denver metro area and the authorities made little or no effort to locate him.
2
“Like the post-Booker Guidelines, policy statements regarding supervised
release are advisory in nature.” United States v. Rodriguez-Quintanilla, 442 F.3d
1254, 1256 (10th Cir. 2006).
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She also asserted that his criminal behavior (with one exception) had occurred
several years before, and more recently Hunter had been maintaining a job,
starting his own business, and going to school. His counsel addressed his
difficulties with group therapy and his medical condition, discoid lupus, which
caused skin discoloration on his head that made him self-conscious. Hunter also
made a statement to the court, asserting that conflicts with his probation officer
were at the root of his troubles.
The prosecutor indicated agreement with the probation officer’s
twenty-four-month sentence recommendation. She emphasized that Hunter knew
the terms and conditions of his supervision, including his obligation to remain in
contact with his probation officer, yet he chose to ignore those obligations in
order to avoid going back to jail.
After the prosecutor and Hunter’s counsel declined further comment, the
district court proceeded with its ruling. It expressly rejected Hunter’s arguments
regarding mitigating factors and stated that it was unacceptable for Hunter to
blame all of his problems on the probation officer when he failed to raise with the
court any issue regarding his supervision and instead walked away from it. As to
his medical condition, the court stated,
Now, I’m sorry you’ve got your condition, discoid lupus, but
it’s something you’ve got to deal with. . . . You’re not the only one
in the world who has discoloration on parts of their body. . . .
[Y]ou’ve got to deal with it in a way that allows you to move
forward as a human being.
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R., Vol. 2 at 26. The court told Hunter it would be imposing another term of
supervised release and that he would be expected to abide by the court’s orders.
The district court stated it was going to sentence Hunter “harshly.” Id. at
28. It then proceeded to find that his supervised release violations were Grade C
and his criminal history category was VI, resulting in an advisory imprisonment
range of eight to fourteen months. 3 The court found merit in the request for an
upward departure based on Hunter’s absconding from supervision, his violation of
the rules of supervision, and his disregard for the court’s orders. After citing
18 U.S.C. § 3553(a), the court stated further that a sentence outside the advisory
range was appropriate due to Hunter’s repeated violations and the risks he
presents to the community. The court sentenced Hunter to twenty-four months’
imprisonment, followed by two years of supervised release with the following
special conditions:
One, the defendant shall participate in and successfully
complete a program of testing and/or treatment for drug abuse . . . as
approved by the probation officer until such time as the defendant is
released from the program by the probation officer.
The defendant shall abstain from the use of alcohol or other
intoxicants during the course of treatment and shall pay the costs of
treatment as directed by the probation officer.
3
There is a typographical error in the hearing transcript, stating that
Hunter’s imprisonment range under the Chapter 7 policy statements was “18 to 14
months.” R., Vol. 2 at 28 (emphasis added).
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No. 2, the defendant shall ingest monitored Antabuse, if not
medically contraindicated.
3, the defendant shall obtain and maintain lawful and gainful
employment within 60 days of his release, following his release from
custody of the Bureau of Prisons.
R., Vol. 2 at 29-30. The district court imposed the same special conditions as had
been recommended by the probation officer in the Sentencing Recommendation.
After advising Hunter of his right to appeal, the court stated it was in recess.
II. Discussion
A sentence imposed after revocation of supervised release is governed by
18 U.S.C. § 3583(e)(3) and the policy statements in Chapter 7 of the Guidelines
Manual. Our review of a district court’s revocation sentence is deferential.
United States v. McBride, 633 F.3d 1229, 1231-32 (10th Cir. 2011).
We will not reverse a revocation sentence imposed by the district
court if it can be determined from the record to have been reasoned
and reasonable. Under our current nomenclature, a “reasoned”
sentence is one that is “procedurally reasonable”; and a “reasonable”
sentence is one that is “substantively reasonable.” To say that a
district court acted reasonably–either procedurally or
substantively–is to say that it did not abuse its discretion.
Id. at 1232 (quotation, citation and brackets omitted). Hunter argues that his
sentence is both procedurally and substantively unreasonable.
A. Procedural Reasonableness
“In reviewing a criminal defendant’s sentence for procedural
reasonableness, we determine whether the district court committed any error in
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calculating or explaining the sentence.” United States v. Martinez, 610 F.3d
1216, 1223 (10th Cir. 2010) (quotation omitted). We must “ensure that the
district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guideline 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.”
United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010) (quotation omitted).
Hunter contends that the district court erred in several ways: (1) in
calculating the applicable advisory imprisonment range; (2) in failing to
adequately explain its reasons for imposing a sentence in excess of that range;
(3) in failing to adequately explain its reasons for imposing, and otherwise erring
in imposing, special conditions of supervised release; and (4) in failing to include
its reasons for exceeding the advisory range in its written order of judgment.
1. Plain Error Review
The government argues that Hunter’s procedural claims should be reviewed
only for plain error because he failed to raise them in the district court. See
United States v. Robertson, 568 F.3d 1203, 1209 (10th Cir. 2009) (“Fairness and
judicial efficiency demand that litigants notify the district court of a procedural
sentencing error with reasonable specificity, thereby providing that court the
opportunity to correct its action in the first instance.”) Hunter responds that plain
error review is not appropriate here because his counsel was not given an
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opportunity to object. See id. at 1209 n.3. (“Plain error review only applies in
instances in which a defendant has been given, but has not taken advantage of, an
opportunity to voice his or her objection.” (quotation omitted)). Hunter maintains
that because his appeal issues relate to the district court’s pronouncement of his
sentence, an objection was not ripe until the court concluded its statement of
reasons. And he argues that the court’s failure at that point to pause or invite
further comments before adjourning the sentencing hearing precluded his counsel
from raising any further objections.
We disagree. Initially, the district court’s calculation of Hunter’s advisory
sentencing range and the special conditions of supervised release that the district
court imposed were identical to the probation officer’s sentencing
recommendations. Hunter had an opportunity to raise his objections in response
to the Sentencing Recommendation before the hearing, or during the hearing prior
to the district court pronouncing his sentence. See Fed. R. Crim. P. 32(f)(1) &
(i)(1)(C)-(D) (permitting objections to pre-sentence report before and during
hearing); see also United States v. Mendoza, 543 F.3d 1186, 1195 (10th Cir.
2008) (noting some forms of sentencing error can be preserved by written
objections to pre-sentencing report or through oral objection at hearing). Hunter
did not need a “crystal ball,” as he asserts, to raise an objection to the proposed
sentencing range calculation and the special conditions that the district court
ultimately adopted.
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He is correct, however, that an objection related to the district court’s
verbal statement of reasons must follow the court’s pronouncement of sentence.
But he has not shown that his counsel had no opportunity to object at that time.
Although it is not clear from the record whether the court paused before
announcing that the court was in recess, it is true that the court did not solicit
further comments from counsel at that time. We have held, however, that
a trial judge is not required to specifically elicit objections after
announcing a sentence. Competent professionals do not require such
gratuitous superintendence; as long as there is a fair opportunity to
register an objection, ask for an explanation or request factual
findings, counsel must take the initiative thereby insuring that silence
is not mistaken for acceptance.
United States v. Steele, 603 F.3d 803, 807 (10th Cir. 2010). Hunter’s counsel did
not take the initiative to ask the district court to reopen the hearing in order to
make a record of her objections related to the court’s statement of reasons.
Hunter does not point to any evidence that his counsel lacked a fair opportunity to
register an objection. This is not a case where counsel tried to raise an objection
but was interrupted by the court and told that the “matter is done.” United States
v. Middagh, 594 F.3d 1291, 1293 (10th Cir. 2010). Nor did the court indicate that
an objection to the adequacy of its statement of reasons would be futile. See
United States v. Algarate-Valencia, 550 F.3d 1238, 1243 (10th Cir. 2008).
Therefore, we will review for plain error Hunter’s claims regarding adequacy of
the district court’s statement of reasons.
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Hunter also contends that his counsel had no opportunity to object to the
district court’s failure to include a statement of reasons for exceeding the
advisory imprisonment range in its written order of judgment. “Unlike other
forms of sentencing error, . . . failure to enter a written statement of reasons
becomes apparent to the parties only after the court enters its final judgment
regarding the sentence imposed.” Mendoza, 543 F.3d at 1195. But we have
recognized that “[Fed. R. Crim. P.] 35(a) allows a party to move for entry of a
written statement of reasons, and that such a motion is the proper means of
raising and preserving an objection to the court’s failure to do so.” Id. Such a
motion must be filed within fourteen days after the oral imposition of sentence.
See Rule 35(a); see also Mendoza, 543 F.3d at 1195 n.7 (noting “sentence is
formally imposed at the point when the district court announces it from the
bench”). 4 The district court announced Hunter’s sentence on October 25, 2010,
and it entered its written order of judgment on November 4, 2010. Hunter could
have, but failed to file a Rule 35(a) motion during the remainder of the
fourteen-day period. Therefore, we review only for plain error his claim that the
4
When we decided Mendoza, the time period for filing a Rule 35(a) motion
was within seven days after sentencing, but the Rule was amended in 2009 to
extend the period to fourteen days. See Rule 35(a) advisory committee’s note.
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district court failed to include a statement of reasons for exceeding the advisory
range in its written order of judgment. 5
In order to succeed under this standard of review, Hunter must show
“(1) error, (2) that is plain, (3) which affects [his] substantial rights and (4) which
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Mendoza, 543 F.3d at 1190 (quotation omitted). As we discuss, he
cannot overcome these elements.
2. Calculation of Advisory Imprisonment Range
Hunter contends that the district court miscalculated his advisory range by
failing to use the version of the Guidelines Manual applicable at the time he was
sentenced for his initial offense in October 2000. For this proposition, he cites
United States v. Penn, 601 F.3d 1007, 1008 (10th Cir. 2010), in which we
reviewed a district court’s imposition of additional supervised release after a term
of imprisonment in a revocation proceeding. We stated, “To determine whether
the district court erred, we focus on the law in effect at the time of Defendant’s
initial crime because postrevocation penalties are attributed to the original
conviction.” Id. at 1009 (quotation and brackets omitted); see also Johnson v.
5
Hunter contends that, if his counsel had an opportunity to raise his claims
of procedural error in the district court, her failure to do so constituted
constitutionally ineffective assistance. We do not reach this issue, which is
properly brought in a collateral proceeding. See United States v. Galloway,
56 F.3d 1239, 1242 (10th Cir. 1995) (en banc). This is not one of the rare cases
where review of the claims on direct appeal is appropriate. See id.-11-
United States, 529 U.S. 694, 700, 701 (2000) (holding that “postrevocation
penalties relate to the original offense” and noting “the serious constitutional
questions that would be raised by construing revocation and reimprisonment as
punishment for the violation of the conditions of supervised release”).
The government responds that the Guidelines Manual itself directs the
district court to apply the version applicable at the time of sentencing, unless such
application would violate the Ex Post Facto Clause. See § 1B1.11(a)-(b)(1);
United States v. Owens, 70 F.3d 1118, 1130 (10th Cir. 1995). The government
notes that Hunter has not raised any ex post facto issue with regard to use of the
policy statements applicable at the time of his sentencing following revocation of
supervised release.
We need not decide what version of the Guidelines Manual should have
been applied in Hunter’s revocation proceeding because he does not claim that his
advisory range would be different as calculated under an earlier version. The
advisory imprisonment ranges for revocation sentences are set forth in a table in
§ 7B1.4 of the Guidelines Manual. As it relates to his applicable advisory range,
the terms of § 7B1.4 remained unchanged from the time of his initial offense in
September 1996, to the time of his sentencing on that offense in October 2000, to
the date he was sentenced on revocation of his supervised release in October
2010. Compare Guidelines Manual § 7B1.4 (effective Nov. 1, 1995); Guidelines
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Manual § 7B1.4 (effective Nov. 1, 1998 6); and Guidelines Manual § 7B1.4
(effective Nov. 1, 2009). Thus, Hunter cannot show an error which affects his
substantial rights. See Penn, 601 F.3d at 1012 (“An error only affects substantial
rights when it is prejudicial, meaning that there is a reasonable probability that,
but for the error claimed, the result of the proceeding would have been different.”
(quotations omitted)).
3. Statement of Reasons for
Twenty-Four Month Sentence
Hunter next contends that the district court failed to explain how it related
the factors in 18 U.S.C. § 3553(a) to the facts underlying his case. Specifically,
he argues the court failed to consider his history and characteristics, including his
criminal history under § 3553(a)(1), and his medical and educational needs under
§ 3553(a)(2)(D). 7 He maintains that the district court “did little more than recite
the language of § 3553(a), without specifically connecting the factors to the facts
of the case.” Aplt. Opening Br. at 24.
We disagree. In Mendoza, 543 F.3d at 1192, we reversed a defendant’s
sentence and remanded because the district court “did not articulate one fact
6
The November 1, 1998 Manual would have been applicable at the time
Hunter was sentenced in October 2000. According to the United States
Sentencing Commission’s website, no Manual was published between November
1, 1998 and November 1, 2000. See http://www.ussc.gov/guidelines/archives.cfm.
7
The district court did expressly consider Hunter’s medical condition,
discoid lupus, but rejected it as a mitigating factor.
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about Mendoza or his crime” and “[m]uch of the court’s discussion was general in
nature and unrelated to the specific defendant before it.” That is not the case
here. The district court provided lengthy remarks focused on Hunter and his
individual circumstances. Moreover, in complaining that the district court failed
to assess certain § 3553(a) factors as applied to him, Hunter misconstrues the
court’s duty in considering those factors with regard to a revocation sentence.
[T]he sentencing court is not required to consider individually each
of the factors listed in . . . § 3553(a) before issuing a sentence.
A sentencing court need only give the reasons for its action as
required by 18 U.S.C. § 3553(c). Thus, when imposing a sentence, a
district court need only consider . . . § 3553(a) en masse and state its
reasons for imposing a given sentence.
United States v. Burdex, 100 F.3d 882, 886 (10th Cir. 1996) (citation and footnote
omitted); see also United States v. Contreras-Martinez, 409 F.3d 1236, 1242
(10th Cir. 2005) (no “magic words” are required (quotation omitted)).
As to the district court’s “specific reason” for imposing a sentence in
excess of that recommended by the Chapter 7 policy statements, as required by
§ 3553(c)(2), Hunter acknowledges that the district court articulated both his
repeated violations of the terms of his supervised release and the risks he presents
to the community. And Hunter ignores that the district court also found merit in
the reasons cited by the probation officer for exceeding the advisory range,
including his absconding from supervised release and his total disregard for the
court’s orders.
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Hunter has not shown error, much less plain error, in the district court’s
discussion of the § 3553(a) factors with regard to his twenty-four-month sentence,
or in its statement of specific reasons in support of a sentence in excess of the
recommended range, as required by § 3553(c)(2).
4. Finding that Hunter Poses a Risk to the Community
Hunter also argues the district court’s finding that he poses a risk to the
public is not supported by the record. We construe this as a claim that the court’s
finding was clearly erroneous. See Regan, 627 F.3d at 1352 (characterizing a
sentence based on clearly erroneous facts as procedural error). While Hunter
concedes that driving under the influence causes a risk of injury to others, he
asserts that his three-year-old DWAI conviction was too stale to support the
court’s finding. He also contends that there is no evidence he posed any danger
to the public while absconding from supervision for three years, other than his
non-compliance with the terms of his supervised release.
We are not persuaded. The district court’s consideration of Hunter’s
“repeated violations of supervised release and the risks he presents to the
community,” R., Vol. 2 at 29, was not limited to his DWAI conviction. The court
also cited his admitted violations of law in possessing and using controlled
substances on multiple occasions and his excessive use of alcohol. Nor was the
court persuaded by Hunter’s argument in mitigation that he had turned his life
around while absconding from supervised release for three years. Hunter’s
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contention that the record fails to support the district court’s finding that he poses
a risk to the community is nothing more than a request that we reweigh the
evidence and the district court’s balance of the § 3553(a) factors. That we cannot
do. See Regan, 627 F.3d at 1354-55 (“We may not examine the weight a district
court assigns to various § 3553(a) factors, and its ultimate assessment of the
balance between them, as a legal conclusion to be reviewed de novo.” (quotation
omitted)).
5. Special Conditions of Supervised Release
The district court imposed three special conditions of supervised release,
requiring (1) that Hunter participate in and complete a drug treatment program
and abstain from the use of alcohol or other intoxicants during the course of his
treatment; (2) that he ingest Antabuse; and (3) that he obtain lawful and gainful
employment within sixty days of his release from prison. Hunter contends that
the district court failed to state its reasons on the record for imposing these
special conditions of supervised release.
“The district court is required to give reasons on the record for the
imposition of special conditions of supervised release. [But t]he court need only
provide a generalized statement of its reasoning.” United States v. Hahn,
551 F.3d 977, 982 (10th Cir. 2008) (citation and quotation omitted). In Hahn, we
held that the district court’s explanation for imposing special conditions, which
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referred generally to the defendant’s history and characteristics and more
specifically to other factors, was sufficient. See id. at 983.
Here, before imposing the special conditions related to drug treatment,
avoidance of alcohol, and Antabuse, the district court referenced Hunter’s
admissions that he possessed and used controlled substances on multiple
occasions, used alcohol excessively, and failed to participate in a previous
drug-treatment program. And in response to Hunter’s claim that his discoid lupus
made it difficult to obtain and maintain employment, the court stated that he was
going to have to deal with his condition and take full responsibility for his life.
Unlike in Hahn, the district court did not directly tie these reasons to its
imposition of the special conditions. We need not decide if the court’s failure to
do so was error, however, because Hunter fails to show any affect on his
substantial rights, as he must do to prevail on plain error review.
Hunter also claims that the district court abused its discretion in imposing
two of the special conditions. “[W]hile the sentencing court has broad discretion
in setting the conditions of supervised release, those conditions must satisfy [the]
statutory requirements laid out in 18 U.S.C. § 3583(d).” Hahn, 551 F.3d at 983.
We have summarized those statutory requirements as follows:
[T]he condition must (1) be reasonably related to the nature and
circumstances of the offense and the history and characteristics of the
defendant and (2) involve no greater deprivation of liberty than is
reasonably necessary given the needs to afford adequate deterrence to
criminal conduct, to protect the public from further crimes of the
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defendant, and to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in
the most effective manner.
Id. (quotations omitted).
Hunter asserts that the district court abused its discretion in requiring him
to obtain and maintain employment within sixty days of his release from prison.
He does not expressly contend that this condition failed to satisfy one or more of
the statutory requirements. He instead asserts that, although the district court was
aware of his efforts to start his own business, the record is ambiguous as to
whether he is precluded under this special condition from maintaining
self-employment. We construe Hunter’s argument as a claim that such a
condition would unreasonably restrict his liberty. But we see no such ambiguity
in the special condition as imposed by the district court. The requirement that
Hunter obtain and maintain employment does not specify a type of employment or
explicitly restrict him from pursuing self-employment as long as it is lawful and
gainful.
Hunter also argues that, in light of his discoid lupus, the district court
should have elicited a medical opinion before imposing a requirement that he take
Antabuse. He cites no authority for this proposition. Moreover, the court
qualified this requirement with the express condition that it would only apply “if
not medically contraindicated.” R., Vol. 2 at 30. Hunter has not shown an abuse
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of discretion in the district court’s imposition of either of these special
conditions.
6. Written Statement of Reasons for Upward Departure
Section 3553(c)(2) requires the sentencing court to include a written
statement in the order of judgment explaining its specific reasons for imposing a
sentence outside the range established by the applicable guidelines or policy
statements. See Mendoza, 543 F.3d at 1195. Hunter is correct that the district
court failed to satisfy that requirement in this case. But as we have found, Hunter
made no effort to notify the court of its error by moving for entry of a written
statement of reasons under Rule 35(a), and our review is therefore for plain error
only.
Hunter has shown an error that is plain. See Mendoza, 543 F.3d at 1196.
In order to satisfy the third prong of the plain error standard, however, Hunter
must demonstrate that the failure to enter a written statement affected his
substantial rights by showing “a reasonable probability that, but for the error
claimed, the result of the proceeding would have been different.” Id. (quotation
omitted). In other words, “the act of entering a written statement must have had
the potential to alter the outcome of the sentence.” Id. In Mendoza, we observed:
[W]e cannot see how the entry of a written statement of reasons
would have such an effect. It is the verbal act of sentencing not its
later confirmation in the written order, that formally imposes a
sentence. . . . To the extent that the written and verbal statements
conflict, it is the verbal that controls.
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Id. Hunter contends that he was prejudiced by the lack of a written statement
because the district court’s oral statement was likewise inadequate. But we have
rejected his claim that the district court’s verbal statement failed to satisfy the
requirements of § 3553(c). Because he has not shown that his substantial rights
were affected, the district court’s failure to enter a written statement of reasons is
not reversible error.
B. Substantive Reasonableness
Hunter’s final argument is that his sentence was substantively
unreasonable. The substantive component of our review “relates to the length of
the resulting sentence.” Steele, 603 F.3d at 808 (quotation omitted). “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.”
Id. at 807 (quotation and brackets omitted). “To say that the district court acted
reasonably . . . is to say that it did not abuse its discretion.” McBride, 633 F.3d at
1232. “A district court abuses its discretion when it renders a judgment that is
arbitrary, capricious, whimsical, or manifestly unreasonable. We will reverse the
district court’s determination only if the court exceeded the bounds of permissible
choice, given the facts and the applicable law in the case at hand.” Regan,
627 F.3d at 1352 (citations and quotations omitted).
Hunter contends that his twenty-four-month sentence is unreasonable in
light of the totality of his circumstances, which he contends the district failed to
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fully consider. He repeats his arguments about the significance of his discoid
lupus. As we have noted, however, the district court did consider his medical
condition, albeit without giving it the weight that Hunter would have liked. We
have also previously addressed his arguments regarding the district court’s
finding that he poses a risk to the community. He now also points to the affects
of a gun shot wound to his face that he suffered while on his previous term of
supervised release. But the facts underlying that shooting incident, which
involved Hunter’s excessive use of alcohol, were not entirely favorable to him.
Hunter next asserts that his sentence is unreasonably long because this was
his first term of supervision and therefore his “first breach of trust.” Aplt.
Opening Br. at 34. In Steele, we stated 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.” 603 F.3d at 809 (quotation omitted). We then observed
that it was the “second breach of trust in a fairly short time” for the defendant in
Steele, id., because he had violated the conditions of a previous period of
supervision, which was revoked, and then violated the terms of a second period,
see id. at 805. Although Hunter is correct that he has only violated one term of
supervised release, Steele did not hold that the only basis for exceeding the
recommended sentencing range under the Chapter 7 policy statements is a
violation of more than one term of supervised release.
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Here, in considering the extent of Hunter’s breach of trust, the district court
reasonably focused on his total disregard for the court’s orders and his
absconding from supervision for three years. The court stated:
When there is supervised release imposed, as there was in this case,
that really is an order that emanates from the Court. And what
someone [who] was under supervised release has to do, you’ve got to
follow the orders. If you disagree with them, if you have issues with
things that are occurring or not occurring to you, you need to
affirmatively come to the Court. You can’t just walk away, become
passive, become inactive, and/or abscond.
R., Vol. 2 at 23-24. Additionally, “[t]he seriousness as well as the persistence of
[Hunter’s] violations, while not the primary focus, [were] also relevant.” Steele,
603 F.3d at 809. Hunter’s violations were numerous (he admitted to nine) and as
in Steele, many of them were “not mere technical violations.” Id. (noting
marijuana possession is a violation of the law). 8
Finally, Hunter argues that his sentence is unreasonably long in relation to
the sentences imposed on other defendants who also absconded from supervision.
Section 3553(a)(6) requires a sentencing court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” But “disparate sentences are allowed
8
In order to exceed the recommended sentencing range under the Chapter 7
policy statements, the district court was not required, as Hunter contends, to find
that the range failed to adequately address the gravity of his criminal history.
While that was a factor cited by the district court in Burdex, see 100 F.3d at 884,
the violator’s criminal history is not the primary focus, see Steele, 603 F.3d at
809.
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where the disparity is explicable by the facts on the record.” United States v.
Davis, 437 F.3d 989, 997 (10th Cir. 2006). And § 3553(a)(6) “requires a district
court to take into account only disparities nationwide among defendants with
similar records and Guideline calculations.” United States v. Martinez, 610 F.3d
1216, 1228 (10th Cir.) (quotation omitted), cert. denied, 131 S. Ct. 543 (2010).
Hunter fails to show that the records and the conduct of the defendants in the
cases that he cites were similar to his record and conduct. See United States v.
Hansen, 9 F. App’x 955, 955 (10th Cir. 2001); United States v. Knight,
395 F. App’x 292, 293 (7th Cir. 2010). Moreover, he cannot establish a
nationwide disparity based on citation of two cases.
Ultimately, Hunter’s arguments are an invitation to this court to reweigh
the evidence, the § 3553(a) factors, and the district court’s “ultimate assessment
of the balance between them.” Regan, 627 F.3d at 1354-55 (quotation omitted).
We decline to do so. Hunter has not shown, based on the totality of the
circumstances, that the district court abused its discretion in sentencing him to
twenty-four months’ imprisonment. The court’s decision to exceed the
recommended sentencing range under the Chapter 7 policy statements did not
“exceed[] the bounds of permissible choice, given the facts and the applicable law
in the case at hand.” Id. at 1352 (quotation omitted). Nor has Hunter established
plain error with respect to the district court’s procedure in imposing his sentence.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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