United States v. Harrison

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-3110
v. District of Kansas
D EREK TY RO N E H A RR ISO N, (D.C. No. 98-CR-40012-01-JAR)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Defendant Derek Tyrone Harrison argues that the district court’s imposition
of a term of supervised release following his violation of an initial term of
supervised release was neither reasoned nor reasonable. W e reject this argument
and affirm the judgment of the district court.
*
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). This case is
therefore 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 This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and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 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
BACKGROUND
In 1998, M r. Harrison pleaded guilty in the District of Kansas to seven
counts of robbery, for which the court sentenced him to concurrent terms of 109
months imprisonment followed by three years supervised release. M r. Harrison’s
term of supervised release began September 14, 2005. On November 18, 2005,
his probation officer informed the district court that M r. Harrison had violated the
terms of his release. Following M r. Harrison’s stipulation to two violations, the
district court ordered him to reside at a halfway house for up to 180 days and to
complete a residential substance abuse program.
On February 10, 2006, M r. Harrison’s probation officer informed the court
that M r. Harrison had violated the halfway house residency condition. At a
hearing before the district court, M r. Harrison again stipulated to violating the
terms of his release. Noting that he found supervised release unpalatable, he
requested a sentence of twelve months and one day imprisonment with no
supervised release. The court revoked M r. Harrison’s current supervised release,
rejected his request, and sentenced him to eight months incarceration to be
followed by twenty-four months supervised release. The court explained that it
had “considered the nature and circumstances of the violations, as well as the
characteristics of the defendant, as well as the sentencing objectives required by
statute.” R. Vol. II, at 5. The court “also considered the advisory, nonbinding
Chapter 7 policy statements issued by the Sentencing Commission” as to what the
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proper sentence should be for a violation of the terms of supervised release. Id.;
see also United States Sentencing Guidelines M anual (“U.S.S.G.”) Ch. 7 (2005).
The court found that the sentence imposed would “address reintegration
objectives and provide deterrence from subsequent criminal behavior.” R. Vol. II
at 6. The court also noted that it was “specifically . . . disregarding [D efendant’s
sentencing request] because his history of drug abuse warrants further treatment,”
and because continued monitoring under supervised release could help address
M r. H arrison’s mental health issues. Id. at 11–12.
D ISC USSIO N
On appeal, M r. Harrison contends that the district court’s imposition of
supervised release was neither “reasoned nor reasonable” under United States v.
Contreras-M artinez, 409 F.3d 1236, 1241 (10th Cir. 2005), and United States v.
Booker, 543 U.S. 220 (2005). He argues that the district court’s assertions
regarding its consideration of the sentencing factors listed under 18 U.S.C. §
3553(a) were merely “perfunctory recitations of what the sentencing court knew
she was to consider, without any indication that she had actually considered the
factors as applied to M r. Harrison.” Brief for Defendant-Appellant at 5.
W e review a sentence imposed after a violation of supervised release under
a “plainly unreasonable” standard. See United States v. Kelley, 359 F.3d 1302,
1304 (10th Cir. 2004). Under 18 U.S.C. § 3583(e)(3), if a defendant’s original
offense was, as in this case, a class C felony, then a district court may punish the
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defendant’s violation of the terms of supervised release by revoking that release
and imposing up to two years imprisonment. Furthermore, if the court imposes a
term of imprisonment “less than the maximum term of imprisonment authorized
under subsection (e)(3), the court may include a requirement that the defendant be
placed on a term of supervised release after imprisonment,” the length of which is
not to “exceed the term of supervised release authorized by statute for the offense
that resulted in the original term of release, less any term of imprisonment that
was imposed upon revocation of supervised release.” 18 U.S.C. § 3583(h). In
announcing a new sentence, the court must consider the factors set forth in 18
U.S.C. § 3553(a). See United States v. Lee, 957 F.2d 770, 774 (10th Cir. 1992).
The sentencing court, however, need not “consider individually each factor listed
in § 3553(a),” or “recite any magic w ords to show us that it fulfilled its
responsibility to be mindful of the factors that Congress has instructed it to
consider.” Contreras-M artinez, 409 F.3d at 1242 (internal quotation marks and
citations omitted). In addition, the district court must consider, but need not
follow, the sentencing recommendations for violations of supervised release set
forth by the U.S. Sentencing Commission. See U.S.S.G. Ch. 7; Lee, 957 F.2d at774–75. Last, as we have previously made clear, a revocation sentence must be
both “reasoned and reasonable.” Contreras-M artinez, 409 F.3d at 1241.
The sentence imposed by the district court in this case easily satisfies these
requirements. First, the record recounted above makes plain that the court’s
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decision was reasoned. The district court explained that it had considered the §
3553(a) sentencing factors before imposing sentence. M oreover, the court
credited particular factors as militating for the sentence in this case. M r. Harrison
contends that these explanations were “perfunctory,” but what additional verbiage
would satisfy him remains unclear. In any event, we disagree with his
characterization. As w e noted above, a sentencing court need not utter “magic
words” to satisfy its duty of reasoned decisionmaking, see Contreras-M artinez,
409 F.3d at 1242, and the explanations offered here were adequate.
Second, the terms of M r. H arrison’s sentence are eminently reasonable.
The Sentencing Guidelines suggest a five- to eleven-month sentence for a
defendant in M r. H arrison’s position. See U.S.S.G. § 7B1.4(a). M r. Harrison’s
eight month prison sentence falls in the middle of this range. Based on this
prison term, the court was authorized to impose up to twenty-eight months of
supervised release under 18 U.S.C. § 3583(h) (thirty-six months of supervised
release authorized for a Class C felony, 18 U.S.C. § 3583(b)(2), less eight months
of imprisonment actually imposed, 18 U.S.C. § 3583(h)). M r. Harrison’s twenty-
four-month term falls within this limit. Thus, in sentencing M r. Harrison, the
district court complied w ith statutory requirements, adopted the G uidelines’
recommendations, and explained its reasons for doing so. Such a process is not
only reasonable but exemplary. As such, we uphold the sentence in this case.
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C ON CLU SIO N
The judgment of the United States District Court for the District of Kansas
is AFFIRM ED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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