U.S. v. Mcbride

• Decision Date: 14 February 2011
• Docket Number: No. 10–3206.,10–3206.
• Citation: 633 F.3d 1229
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Osibisa McBRIDE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

633 F.3d 1229

UNITED STATES of America, Plaintiff–Appellee,
v.
Osibisa McBRIDE, Defendant–Appellant.

No. 10–3206.

United States Court of Appeals, Tenth Circuit.

Feb. 14, 2011.

[633 F.3d 1230]

Cyd K. Gilman, Federal Public Defender, (Marilyn M. Trubey, Assistant Federal Public Defender, with her on the brief), District of Kansas, Topeka, KS, for Defendant–Appellant.Barry R. Grissom, United States Attorney, (James A. Brown, Assistant United States Attorney), District of Kansas, Topeka, KS, for Plaintiff–Appellee.Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.HARTZ, Circuit Judge.

After Defendant Osibisa McBride admitted violating the terms of his supervised release, the United States District Court for the District of Kansas revoked his release and sentenced him to 12 months' incarceration. See 18 U.S.C. § 3583(e)(3). Defendant appeals the sentence, claiming it was substantively and procedurally unreasonable. We have jurisdiction under 28 U.S.C. § 1292 and affirm.^* Defendant has not overcome the presumption that his sentence, which was within the range suggested by the United States Sentencing Commission's policy statements, was reasonable in length. And he has failed to satisfy his burden of showing plain error arising from the district court's alleged procedural errors, to which he did not object below.

I. BACKGROUND

On November 15, 2006, Defendant pleaded guilty to possessing ammunition after being convicted of a misdemeanor crime of domestic violence. See 18 U.S.C. § 922(g)(9). He was sentenced to 51 months' imprisonment and two years of supervised release. One of the standard conditions of the supervised release was that “the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substances or any paraphernalia related to any controlled substances.” R., Vol. 1 at 24.

Defendant's supervised release began on January 13, 2010, upon his release from prison. On April 21 he was placed in a curfew program because of violations of

[633 F.3d 1231]

the terms of his release. And on May 18 he was ordered to live in a residential re-entry center (a halfway house) because of additional violations. While living there he twice tested positive for marijuana, tested positive for alcohol, and signed out to work on a day he was not scheduled to work. On July 14 his probation officer asked that the supervised release be revoked, and the district court issued a warrant for Defendant's arrest the next day.

At the revocation hearing Defendant stipulated to one of the six violations alleged in the Probation Office's petition for a warrant: his failure to comply with the rules of the halfway house by consuming marijuana and alcohol. After finding that Defendant had committed a Grade C offense and that his criminal-history category was VI, the district court stated that it intended to impose a 12–month sentence. It explained:

The Court has considered the nature and circumstances, the characteristics of the defendant, the sentencing objectives, and the Court has considered the advisory non-binding Chapter 7 policy statements. Specifically, the Court has considered the defendant was referred to outpatient counseling and failed to comply. The Court has also considered that the defendant failed to comply with the residential re-entry center placement.

Id., Vol. 2 at 8. It then requested comments. The prosecutor said that he had no objections to the proposed sentence. Defense counsel, however, requested that Defendant be placed in “inpatient treatment rather than sending him back to prison.” Id. at 9. Alternatively, she requested that the sentence be 12 months and one day, although she did not explain why she sought the additional day. The court asked the probation officer for any comments on the request; the officer responded that Defendant had failed treatment opportunities in outpatient counseling and at a halfway house and that Defendant “could receive treatment while he was in custody.” Id. at 11. The prosecutor then repeated that he thought the proposed sentence was appropriate. The court “denie[d] the request of defense counsel,” id., and imposed the proposed sentence. On the request of defense counsel, the court recommended that Defendant be provided drug treatment while in prison.II. DISCUSSION

Before deciding whether to revoke a term of supervised release and determining the sentence imposed after revocation, the district court must consider the factors set out in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). ¹ See 18 U.S.C. § 3583(e). Our review

[633 F.3d 1232]

of the court's application of these factors is deferential. “[W]e will not reverse a revocation sentence imposed by the district court if it can be determined from the record to have been reasoned and reasonable.” United States v. Contreras–Martinez, 409 F.3d 1236, 1241 (10th Cir.2005) (brackets and internal quotation marks omitted). Under our current nomenclature, a “reasoned” sentence is one that is “procedurally reasonable”; and a “reasonable” sentence is one that is “substantively reasonable.” To say that the district court acted reasonably—either procedurally or substantively—is to say that it did not abuse its discretion. See United States v. Alapizco–Valenzuela, 546 F.3d 1208, 1214 (10th Cir.2008). Defendant argues that his sentence was both substantively and procedurally unreasonable. We first address substantive reasonableness.

A. Substantive Reasonableness

Defendant argues that it was substantively unreasonable for the district court to refuse to give him a sentence of 12 months and one day, which would have allowed him to earn good-time credit and thereby reduce his incarceration time. We agree that such a sentence would have been reasonable. But Defendant must do more than show that his preferred sentence was a reasonable one. In virtually every case, many sentences would be reasonable. To obtain relief, he must show that the actual sentence imposed was outside this range of reasonableness. See United States v. Medley, 476 F.3d 835, 840 (10th Cir.2007).

In assessing what sentence would be reasonable for violation of a condition of supervised release, the district court has been instructed by Congress to consider “the applicable ... policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3553(a)(4)(B). These policy statements serve essentially the same role as the now-advisory sentencing guidelines issued by the Commission. They represent an expert assessment of appropriate sentencing practices, often informed by empirical data regarding actual sentencing practices. See Rita v. United States, 551 U.S. 338, 348–50, 127 S.Ct. 2456, 168 L.Ed.2d...