United States v. Dodds , 385 F. App'x 829 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 7, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee, No. 09-3194
v. (D.C. No. 03-CR-20112-KHV-DJW-1)
LARRY D. DODDS, (D. Kan.)
Defendant–Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f).
This appeal arises out of the revocation of Defendant’s supervised release.
At his revocation hearing, Defendant admitted he violated the conditions of his
supervised release by missing an ordered drug screen and knowingly using PCP.
After receiving testimony and hearing arguments from counsel, the court revoked
Defendant’s supervised release and sentenced him to twelve months 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This order and judgment is not binding precedent, except under the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.
imprisonment and two years of supervised release. Defendant now appeals the
imposition of this sentence.
Defendant first challenges the procedural reasonableness of his sentence.
Specifically, he argues the court improperly failed to articulate whether it had
considered and rejected the availability of drug treatment programs under 18
U.S.C. § 3583(d). He also argues the court erred when it failed to specify the
statutory provision on which the revocation was based. Because Defendant did
not raise these arguments before the district court, we review them only for plain
error. See United States v. McComb, 519 F.3d 1049, 1054 (10th Cir. 2007).
After reviewing the record, we are satisfied the court committed no error,
much less error that was plain. In United States v. Hammonds, 370 F.3d 1032,
1038-39 (10th Cir. 2004), we rejected a virtually identical challenge to a
sentencing court’s implicit rejection of the § 3583(d) treatment option without a
specific ruling on the record. Just as in Hammonds, the record in this case
reflects that the court was aware of its discretion to order treatment rather than
revocation, and Defendant cites to no facts indicating this decision was an abuse
of discretion. As for Defendant’s second argument, we conclude Defendant was
sufficiently informed of the basis for the revocation decision. Moreover,
Defendant has not identified how any error in failing to specify the statutory
subsection affected his substantial rights in this case.
Defendant also suggests his sentence was substantively unreasonable.
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However, he has cited to no facts rebutting the presumption of reasonableness
attached to his guidelines-range sentence. See United States v. Sutton, 520 F.3d
1259, 1262 (10th Cir. 2008). We therefore reject Defendant’s challenge to the
substantive reasonableness of his sentence.
The district court’s order is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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