United States v. Lavorchek ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 4, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-6055
(D.C. No. 5:09-CR-00065-HE-1)
JEREMY DWAYNE LAVORCHEK, (W.D. Oklahoma)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, Circuit Judges, and BRORBY, Senior Circuit
Judge.
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); 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Defendant and Appellant, Jeremy Dewayne Lavorchek, appeals the twenty-
four month sentence imposed by the district court following the revocation of his
supervised release. For the following reasons, we reject his argument that the
sentence is substantively unreasonable, and we therefore affirm the sentence
imposed.
In December of 2008, Mr. Lavorchek was arrested after police found in his
possession 92.9 grams of marijuana, forty ecstasy tablets, a scale, multiple
baggies, multiple pill bottles containing approximately 1,860 prescription tablets,
and $2,363 in cash. He claimed he got some of the drugs from a supplier in
Dallas, but he also admitted to breaking into pharmacies in seven different towns
and stealing the following prescription drugs: Xanax, Hydrocodone, Soma,
Lortab, Norco, Vicodin, Adderall, Oxycontin, Percocet and Morphine.
In March 2009, Mr. Lavorchek waived his right to a grand jury indictment
and a jury trial, and pled guilty to one count of burglary of a pharmacy. The
district court sentenced him to prison for twelve months and one day, followed by
two years of supervised release. This was a downward variation from the
advisory sentencing range provided by the United States Sentencing Commission,
Guidelines Manual (“USSG”).
In August 2010, the United States Probation Office asked the district court
to revoke Mr. Lavorchek’s supervised release, based on the following: (1) three of
Mr. Lavorchek’s urine specimens tested positive for cannabanoids and one tested
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positive for cocaine; (2) Mr. Lavorchek failed to attend a substance abuse
counseling class; (3) he failed to attend a residential substance abuse treatment
program; and (4) he missed a scheduled drug test. Mr. Lavorchek then absconded
and local police arrested him two days later in Laredo, Texas. A state court
subsequently convicted him of deadly conduct and possession of a firearm by a
felon. His probation officer then modified the revocation petition to include, as
grounds for revocation, his flight and the commission of the other crimes. In June
2012, the district court revoked Mr. Lavorchek’s supervised release and sentenced
him to eighteen months’ imprisonment, followed by an additional eighteen
months of supervised release.
Mr. Lavorchek commenced this latest term of supervised release on August
28, 2013. Four days later–on September 1, 2013–an Edmond, Oklahoma police
officer arrested Mr. Lavorchek for driving under the influence, driving on a
suspended license, and failing to provide insurance verification. On September 6,
2013 (five days later), another Edmond police officer arrested Mr. Lavorchek for
public intoxication. Mr. Lavorchek also failed to contact his probation officer
when instructed to do so, and he moved without telling his probation officer, in
violation of the terms of his supervised release. Based on these violations, Mr.
Lavorchek’s probation officer asked the district court to issue a warrant and
revoke Mr. Lavorchek’s supervised release. On December 18, 2013 (after Mr.
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Lavorchek had absconded for some three months), officers from the United States
Marshal’s Office in Los Angeles arrested Mr. Lavorchek.
On February 20, 2014, the district court held a revocation hearing. At that
hearing, Mr. Lavorchek stipulated that the government was able to prove the
violations of his supervised release. The court noted that the USSG policy
statement Chapter 7 recommended a range of three to nine months’ imprisonment.
Mr. Lavorchek’s counsel asked the court to sentence him to a within-Guidelines
sentence, claiming that the policy statement accounted for all relevant facts and
circumstances. He also agreed with his probation officer’s assessment that
further supervised release would be futile. The district court took note of the fact
that Mr. Lavorchek had absconded for three months.
When the district court asked Mr. Lavorchek if he had anything to say, he
asked the court for pity, reminding the district court that it had originally given
him a below-Guidelines sentence because the offense “wasn’t necessarily [his]
lifestyle,” and he claimed he had tried to remain offense-free. Tr. of Revocation
Hr’g at 6; R. Vol. 3 at 6.
The government recommended that the district court sentence Mr.
Lavorchek to twenty-four months’ imprisonment (the statutory maximum), noting
that Mr. Lavorchek had only paid $355.95 out of an ordered restitution amount of
$14,855.54. The government argued this fact undermined Mr. Lavorchek’s claim
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that he was “trying.” The government also pointed out that Mr. Lavorchek had
absconded on two occasions.
After listening to both parties, the district court observed that Mr.
Lavorchek was facing his second revocation proceeding. The court also noted
that, at the original sentencing, there were several factors present which indicated
that Mr. Lavorchek was “getting his life pointed in the proper direction.” Id. at 8.
But the court further observed that Mr. Lavorchek “was back here fairly quickly
during the first term of supervised release with serious violations . . . and . . .
we’re here now again with further violations on the second petition.” Id. at 9.
Thus, the court stated that the earlier below-Guidelines sentence “seems not to
have sent the proper message.” Id. The court further noted its “baffle[ment]”
with Mr. Lavorchek’s statement “that it may not look like [he is] trying, but [he
is].” Id. The court “truly see[s] no evidence whatsoever that the defendant is
trying here. . . [T]he circumstances indicate that he immediately re-offended with
these DUI situations, a couple of them almost immediately after going onto
supervised release the first time.” Id. “More serious . . . in terms of the sentence
here is the ultimate resistance to supervision that he’s shown as evidenced by
simply absconding from any supervision over the past three or four months. And
to suggest that someone who has simply absconded is somehow trying strikes [the
court] as laughable.” Id.
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Accordingly, based on all of these circumstances, the district court revoked
Mr. Lavorchek’s supervised release and sentenced him to twenty-four months’
imprisonment. This sentence was “based on the fact that this is a second
revocation in the course of supervision of the same defendant, the immediacy of
the violations commencing immediately upon entering into the second term of
supervised release, and this history of essentially resistance to supervision
culminating in the absconding from supervision.” Id. at 10.
It is undisputed that Chapter 7 of the Guidelines recommends a sentencing
range of three to nine months for the particular Grade C violations which Mr.
Lavorchek committed. It is also undisputed that 18 U.S.C. § 3583(g) and (e)(3)
authorize the district court to sentence Mr. Lavorchek to a term of up to twenty-
four months. Thus, the sentence imposed was the statutory maximum. Mr.
Lavorchek appeals, arguing that “the imposed statutory maximum sentence is
substantively unreasonable.” Appellant’s Br. at 9.
“In imposing a sentence following revocation of supervised release, a
district court is required to consider both [USSG] 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) (citing United States v.
Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005); 18 U.S.C. §§ 3583(e), 3584(b)).
“In reviewing a sentence imposed after revocation of supervised release, we
review the district court’s factual findings for clear error and its legal conclusions
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de novo.” United States v. Handley, 678 F.3d 1185, 1188 (10th Cir 2012). We
will not reverse such a sentence if the record establishes that the sentence is
“reasoned and reasonable.” Id. (quoting United States v. Contreras-Martinez, 409
F.3d 1236, 1241 (10th Cir. 2005)). That standard applies equally to a “sentence
in excess of that recommended by the [USSG] Chapter 7 policy statements.”
United States v. Steele, 603 F.3d 803, 807 (10th Cir. 2010). We have explained
that “[a] ‘reasoned’ sentence is one that is ‘procedurally reasonable’; and a
‘reasonable’ sentence is one that is ‘substantively reasonable.’” United States v.
Vigil, 696 F.3d 997, 1001 (10th Cir. 2012) (quoting United States v. McBride,
633 F.3d 1229, 1232 (10th Cir. 2011)). The overarching question is whether the
district court abused its discretion in selecting the sentence it deems reasonable;
our review of that sentence is deferential. See United States v. Ruby, 706 F.3d
1221, 1225 (10th Cir. 2013).
Procedural reasonableness “addresses whether the district court incorrectly
calculated or failed to calculate the Guidelines sentence, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous
facts, or failed to adequately explain the sentence.” Vigil, 696 F.3d at 1001
(further quotation omitted). “Substantive reasonableness review broadly looks to
whether the district court abused its discretion in weighing permissible § 3553(a)
factors in light of the totality of the circumstances.” Id. at 1002 (further
quotation omitted).
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Mr. Lavorchek makes no argument that the court procedurally erred. His
argument focuses on the substantive reasonableness of the sentence, claiming that
“the circumstances before the district court supported a within guidelines sentence
as sufficient to achieve the purposes of sentencing.” Appellant’s Br. at 9. While
it is true that a “presumption [of reasonableness] is . . . appropriate in reviewing a
revocation-of-supervised-release sentence within the range suggested by the
Commission’s policy statements,” United States v. McBride, 633 F.3d 1229, 1232
(2012), it is also beyond peradventure that a sentence in excess of that range is
not per se unreasonable. See Tedford, 405 F.3d at 1161 ((‘[I]mposition of a
sentence in excess of that recommended by the Chapter 7 policy statements of the
Sentencing Guidelines will be upheld if it can be determined from the record to
have been reasoned and reasonable.” (further quotation omitted)).
This case is similar to the facts presented in Vigil, where we observed that
the sentencing court’s imposition of a sentence above the recommended
Guidelines range was justified by the defendant’s “blatant, repeated violations of
the conditions of her probation and supervised release.” 696 F.3d at 1002.
Similarly, we conclude that it was not unreasonable for the district court here,
after considering all the relevant sentencing factors, to conclude that the sentence
imposed was appropriate because of the repeated instances in which Mr.
Lavorchek failed to comply with the conditions of his supervised release, and
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because he absconded from supervision altogether. We cannot say the court
abused its discretion in imposing the reasoned and reasonable sentence it selected.
For the foregoing reasons, we AFFIRM the sentence imposed.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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