United States v. Shields

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 12, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-3309
v. District of Kansas
JAM ES W . SHIELD S, (D.C. No. 02-CR-20084-JW L)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
A federal district court sentenced James W . Shields in February 2003 to
twenty-seven months in prison and two years supervised release as punishment
for his conviction on one count of possessing child pornography. M r. Shields
violated the conditions of his release approximately a year into the term,
prompting his probation officer to petition the district court to revoke M r.
Shields’s release and return him to prison.
*
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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 and 10th Cir. R. 32.1.
At his revocation hearing on August 21, 2006, M r. Shields stipulated that
he had in fact violated the terms of his release by visiting strip clubs, patronizing
prostitutes, shopping at adult bookstores, viewing adult pornography online, and
accessing computer files containing pornographic pictures of children. He also
admitted to touching inappropriately a twelve-year-old girl some thirteen years
earlier, an incident he had not previously disclosed. M r. Shields disputed the
government’s characterization of these acts— he maintained that they were not as
serious nor as frequent as the government alleged— but he did not dispute that the
acts occurred.
The U.S. Sentencing Guidelines recommended a range of four to ten
months imprisonment for M r. Shields’s conduct, which qualified as “Grade B” by
the terms of the Guidelines manual. U.S. Sentencing Guidelines M anual § 7B1.4
(2006). The defendant requested a sentence at the low end of the range; counsel
for the government asked the court to sentence M r. Shields to twenty-four months
imprisonment, the statutory maximum. The court sided with the government,
citing a series of considerations, including the need to deter M r. Shields, protect
the community, and qualify him for an intensive sex-offender treatment program
run by the Bureau of Prisons.
M r. Shields appeals this sentence to our Court, arguing that he was not
given notice of the district court’s intention to depart upward from the Guidelines
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range. He also contends that his sentence was substantively unreasonable. W e
reject both claims.
W e begin with M r. Shields’s notice argument. W hile he labels the district
court’s decision to impose the statutory-maximum sentence an “upward
departure,” this is not precisely how we have used the term in the sentencing
context, see United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007),
and it is especially misleading when invoked here. As we held in United States v.
Burdex, 100 F.3d 882, 885 (10th Cir. 1996), “[a] sentence in excess of the
Chapter 7 [Guidelines] range is not a ‘departure’ from a binding guideline.”
Unlike the rest of the Sentencing Guidelines, the suggested sentences for
violations of supervised release that appear in Chapter 7 of the Sentencing
M anual have never been mandatory. Consequently, we have never called a
sentence above the Chapter 7 range a “departure” and have never required district
courts to provide notice to defendants before imposing one. “[A] sentencing
court is not required to give notice of its intent to exceed the sentencing range
prescribed by the Chapter 7 policy statements for violations of supervised
release.” Burdex, 100 F.3d at 885; see United States v. Davis, 151 F.3d 1304,
1308 (10th Cir. 1998) (holding that the defendant’s argument that the district
court should have provided notice of its intent to “depart” upward from the
Chapter 7 policy statements was foreclosed by Burdex).
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W e acknowledge that this rule is in some tension with our decision in
Atencio, which required district courts to provide pre-hearing notice of any intent
to vary a defendant’s sentence above the Guidelines range, even though the
Guidelines are now advisory. 476 F.3d at 1104. But the Burdex line of precedent
is both clear and well-established. This panel has no power to overrule it.
Accordingly, we conclude that M r. Shields’s notice argument must fail.
Turning to the defendant’s substantive challenge to his sentence, we note
that “[b]ecause there is no applicable sentencing guideline” governing the
imposition of sentences for violations of supervised release, our “standard of
review is ‘plainly unreasonable.’” United States v. White, 244 F.3d 1199, 1204
(10th Cir. 2001) (citing 18 U.S.C. § 3742(3)(4)). This standard remains
unchanged by Booker. United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir.
2005). Still, although the Chapter 7 policy statements are— like the rest of the
Guidelines, post-Booker— advisory rather than binding, the trial court must
consider them before imposing a sentence for violation of supervised release,
United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004), just as it must
consider the now -advisory Guidelines range w hen imposing a sentence in the first
instance, United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). No
“magic words” are required to demonstrate that the district court has in fact
weighed the Chapter 7 recommendations or the other factors Congress has
instructed it to consider. Tedford, 405 F.3d at 1161. It is enough that the district
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court acknowledges the Chapter 7 range along with the 18 U.S.C. § 3553(a)
sentencing factors and states its reasons for imposing a given sentence. See
United States v. Rodriguez-Q uintanilla, 442 F.3d 1254, 1258-59 (10th Cir. 2006);
United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004).
In sum, if a district court imposes a sentence above that recommended by
the Sentencing M anual’s Chapter 7, we will reverse only if the record reveals the
sentence was unreasoned and unreasonable. Rodriguez-Q uintanilla, 442 F.3d at
1258 (internal quotations omitted).
In the instant case, the district court offered a lengthy explanation for its
decision to sentence M r. Shields to the statutory maximum. Given the care with
which the court set forth its rationale, we cannot say that the sentence was
unreasoned. Nor can we say it was substantively unreasonable. The trial judge
explicitly acknowledged the Chapter 7 guidelines and affirmed that he had
considered them. He went on to cite a series of factors, mirroring the list in §
3553(a), that informed his sentence above the Chapter 7 recommendation: the
guidelines range did not accurately reflect the seriousness of Shield’s behavior,
according to the district court; the recommended range did not provide adequate
deterrence; M r. Shields had dissembled in acknowledging his guilt; he showed
little or no remorse; he posed a continuing danger to the community; and he
required intensive, professional counseling.
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The defendant argues that the sole factor motivating the trial court’s
sentence was its conclusion that he ought to participate in an eighteen-month,
government-run treatment program for sex offenders. M r. Shields points us to the
Sixth Circuit’s decision in United States v. Yopp, 453 F.3d 770, 774 (6th Cir.
2006), which rejected as unreasonable a sentence predicated on the length of time
it would take the defendant to complete an in-house substance-abuse treatment
program, much like the program the district court in our case envisioned for M r.
Shields. As in our case, the sentence in Yopp totaled twenty-four months, and
followed the defendant’s violation of his supervised release. Id. at 771-72.
Unlike our case, however, the trial court in Yopp appeared to premise its
sentence solely on the requirements of the substance-abuse treatment program.
Id. at 774. Further, the trial court failed to mention or consider either the Chapter
7 policy statements or the § 3553(a) factors. Id. at 773-74. The district judge
who sentenced M r. Shields, by contrast, weighed the Chapter 7 recommendations
and thoroughly considered the § 3553(a) factors, on which he based his sentence.
W e do not require more. M r. Shields’s sentence was not plainly unreasonable.
Accordingly, the judgment of the United States District Court for the
District of K ansas is AFFIRM ED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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