United States v. Hendricks ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 9, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-6086
v. (W .D. Oklahoma)
NED RA M IGNON HEN DRICK S, (D.C. No. CR-00-83-M )
Defendants-A ppellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On February 13, 2006, Nedra M ignon Hendricks stipulated to her probation
officer’s allegation that she failed to comply with the terms of her supervised
release. Based on the stipulation, the district court revoked M s. Hendricks’s
*
This order and judgment is not binding precedent, except under the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 and sentenced her to twenty-six months’ incarceration, to be
followed by twenty-eights months’ supervised release. On appeal, M s. Hendricks
contends that the district court’s tw enty-six month sentence was unreasonable.
W e have jurisdiction under 28 U.S.C. § 1291, and for the reasons stated herein,
we affirm.
I. BACKGROUND
On November 14, 2000, M s. Hendricks was sentenced to seventy-eight
months’ imprisonment followed by three years’ supervised release for aiding and
abetting an armed robbery of a financial institution, a violation of 18 U.S.C. §
2113 (a) and (d), and § 2. M s. Hendricks w as released from confinement on April
26, 2004.
On M arch 7, 2005, the district court revoked M s. Hendricks’s supervised
release in part because of M s. Hendricks’s drug dependency. She was imprisoned
for six months and directed to serve an additional thirty months’ supervised
release. M s. Hendricks was released from the six months’ term of confinement on
August 24, 2005.
On September 7, 2005, the probation officer filed a petition alleging the
following violations of the terms of supervised release: 1) M s. Hendricks failed to
report to the U.S. Probation Office on August 24, 2005, immediately upon her
release from incarceration as directed; 2) M s. Hendricks provided a urine sample
on August 25, 2005, that was positive for THC M etabolite, and she admitted that
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she had used marijuana on the preceding day; and, 3) M s. Hendricks left an
inpatient treatment facility on August 29, 2005, did not return to the facility and
did not contact the U.S. Probation Office.
The district court held a hearing on the petition on February 13, 2006. M s.
Hendricks stipulated the violations could be proved by a preponderance of the
evidence, and the district court found she had violated the terms of her supervised
release as alleged. Each of the violations in the petition was classified as a Grade
C violation. Based on a combination of the Grade C violations in conjunction
with M s. Hendricks’s criminal history category of IV, USSG § 7B1.1 through
7B1.4 specified an advisory range of six to twelve months’ imprisonment.
The district court sentenced M s. Hendricks to twenty-six months’
imprisonment and imposed an additional term of supervised release of
tw enty-eight months.
II. DISCUSSION
M s. Hendricks maintains that she should be resentenced because the district
court failed to articulate the basis for imposing a sentence higher than the
Guidelines range of six to twelve months’ imprisonment. She argues that the
district court failed to consider that her underlying mental health problems w ould
best be addressed through participation in an out-patient program, rather than a
residential drug treatment program that (1) she might not qualify for, and (2) that
did not take into account her mental health needs. Although the district court
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considered the nature and circumstances of the case, her history and
characteristics, and the need for treatment in a custodial setting, M s. Hendricks
argued that the district court had given “undue w eight to these factor[s].” Aplt’s
Br. at 9.
“[I]t is unclear post-[United States v. Booker, 543 U.S. 220 (2005)]
whether [sentences following the revocation of supervised release] should be
reviewed for reasonableness or for an abuse of discretion. W e need not explore
the exact contours of our post- Booker standard of review, however, because we
conclude that the District Court did not abuse its discretion and that the sentence
was both procedurally and substantively reasonable.” United States v. Cordova,
461 F.3d 1184, 1188 (10th Cir. 2006) (internal quotation marks and citations
omitted). “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), see 18 U.S.C. §§
3583(e), 3584(b).” Id. (internal quotation marks and citations omitted).
Section 3553(a)’s 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-M artinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005).
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“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
instructed it to consider” before issuing a sentence. Cordova, 461 F.3d at 1189(internal quotation marks omitted).
The district court acknow ledged that each of the violations to w hich M s.
Hendricks stipulated was a Grade C violation. See USSG § 7B1.1. After
acknowledging that the recommended guidelines range was from six to twelve
months, the district court noted that M s. Hendricks’s history of non-compliance
with the terms of supervised release was caused largely by her severe drug
addiction. Citing the need for additional treatment, the district court imposed the
lengthier sentence, which might provide enough time for M s. Hendricks to enroll
in a voluntary Residential Drug Abuse Program while incarcerated. At the time
of sentencing, the probation officer informed that court that the waiting list for
the program w as a year, and the program took a year to complete. Rec. vol. II, at
9. Because M s. Hendricks had been diagnosed with depression, the court also
ordered participation in a mental health aftercare program.
“[I]t is now axiomatic that 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.’” Cordova, 461 F.3d at 1188
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(quoting United States v. Rodriguez-Q uintanilla, 442 F.3d 1254, 1258 (10th Cir.
2006)). The district court, familiar with M s. Hendricks’s factual circumstances
and history of supervised release revocations, was exceptionally mindful of §
3553(a)’s factors. As in Cordova:
the District Court indicated its concern that [M s. Hendricks’s] failure
to abide by the terms of supervised release were due to her ongoing
substance abuse problems, and suggested [M s. Hendricks] participate
in a drug rehabilitation program for which she would not be eligible for
nearly twelve months and which would require [additional time] to
complete.
461 F.3d at 1189. After reviewing the record, we hold that the district court
adequately considered the relevant sentencing factors.
III. CONCLUSION
Accordingly, the district court did not abuse its discretion in imposing the
twenty-six months sentence, nor was the sentence unreasonable. W e therefore
AFFIRM M s. Hendricks’s sentence.
Entered for the Court,
Robert H. Henry
Circuit Judge
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