United States v. Ahidley

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 22, 2023
• Docket: 23-2008
• Status: Unpublished

Opinion

Appellate Case: 23-2008 Document: 010110973223 Date Filed: 12/22/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 22, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2008 (D.C. No. 2:16-CR-03254-MIS-1) RAYBERT DARIN AHIDLEY, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, EBEL, and CARSON, Circuit Judges. _________________________________

Defendant Raybert Darin Ahidley appeals his sentence of 24 months of

imprisonment followed by 24 months of supervised release imposed for his violation of

the terms of his supervised release. He challenges the sentence as substantively

unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm his sentence.

In 2016 Defendant pleaded guilty to sexual abuse of a minor in Indian country, see

18 U.S.C. §§ 2243(a), 1153, for having sex, while at the age of 29, with a 15-year-old girl

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-2008 Document: 010110973223 Date Filed: 12/22/2023 Page: 2

on the Mescalero Apache reservation. He was sentenced to two years’ imprisonment and

five years of supervised release. His term of supervision began on November 3, 2017.

Over the next five years his supervision was revoked five times and he spent roughly half

that time in custody. Then, on October 4, 2022, in the second month of his sixth term of

supervision, Defendant was pulled over by an officer who observed him swerving in his

car. He failed six out of six field sobriety tests and his breath alcohol concentration

(BrAC) measured .25. Also, the arresting officer found Defendant’s one-year-old child

sitting in his lap and his newborn in the lap of his girlfriend in the passenger seat. He was

charged with driving under the influence of alcohol and child abuse.

At his revocation hearing Defendant admitted to violating the terms of his release

by committing a federal, state, or local crime and by possessing alcohol. The district

court sentenced Defendant to two years’ imprisonment—the statutory maximum, see 18

U.S.C. § 3583(e)(3) (setting maximum terms of imprisonment upon revocation of

supervision); 18 U.S.C. § 3559 (classifying offenses); 18 U.S.C. § 2243(a) (maximum

sentence for Defendant’s crime of conviction)—and two years’ supervised release.

Because Defendant’s supervised-release offense was a Grade B violation, see USSG §

7B1.1(a), and he was in criminal-history category II, the recommended sentence under

the Sentencing Commission policy statements was six to twelve months’ imprisonment,

see USSG § 7B1.4(a).

On appeal Defendant argues only that his sentence is substantively unreasonable.

Substantive reasonableness “concerns whether the length of the sentence is reasonable in

light of the statutory factors under 18 U.S.C. § 3553(a).” United States v. Adams, 751

2 Appellate Case: 23-2008 Document: 010110973223 Date Filed: 12/22/2023 Page: 3

F.3d 1175, 1181 (10th Cir. 2014). This proposition applies to revocation of supervised

release as well as initial sentencing on a conviction. See United States v. McBride, 633

F.3d 1229, 1231–33 (10th Cir. 2011). In assessing a district court’s application of these

factors, we apply a deferential abuse-of-discretion standard. See id. at 1232. “To prove

the court abused its discretion, the defendant must show the sentence exceeded the

bounds of permissible choice, such that the sentence is arbitrary, capricious, whimsical,

or manifestly unreasonable.” United States v. Gross, 44 F.4th 1298, 1302 (10th Cir.

2022) (internal quotation marks omitted). While a sentence within the range suggested by

Sentencing Commission policy statements is presumptively reasonable, a sentence

outside that range is not presumptively unreasonable; instead, the reviewing court must

“give due deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent” of any variance from Sentencing Commission policy guidance. Gall v.

United States, 552 U.S. 38, 51 (2007).

Here, the district court gave explicit and reasoned consideration to the § 3553(a)

factors in explaining Defendant’s sentence. See United States v. Barnes, 890 F.3d 910,

917 (10th Cir. 2018) (“A sentence is more likely to be within the bounds of reasonable

choice when the court has provided a cogent and reasonable explanation for it.”).

First, the district court considered the “nature and circumstances of the offense,

and the history and characteristics of the defendant.” R., Vol. 3 at 41; see § 3553(a)(1). It

noted that Defendant’s underlying offense was a sex crime, that the violation in this case

“was driving while very intoxicated with two young children in the car,” and that

Defendant’s history while on supervised release included “numerous” previous

3 Appellate Case: 23-2008 Document: 010110973223 Date Filed: 12/22/2023 Page: 4

violations: “Failure to attend treatment, new charges, drug use, discharge from facilities,

failure to attend therapy multiple times, alcohol use.” R., Vol. 3 at 41–42.

Second, the district court addressed the factors set forth in § 3553(a)(2).

Considering the “need for the sentence imposed to afford adequate deterrence to criminal

conduct,” the court, observing that Defendant had received multiple guideline sentences

in the past, found that another guideline sentence would not be adequate to deter him

from crime. R., Vol. 3 at 42; see § 3553(a)(2)(B). Considering the need “to protect the

public from further crimes of the defendant,” the court was “concerned about

[Defendant’s] alcohol consumption and protecting the public from crimes of [Defendant]

like the one that he committed during the violation in this case of very high driving-

under-the-influence with children in the car.” R., Vol. 3 at 42; see § 3553(a)(2)(C).

Considering “the need to provide the defendant with educational or vocational training,

medical care, or other correctional treatment in the most effective manner,” the court

explained that it “ha[d] attempted to provide the defendant with those things while on

supervised release, but it has not worked because [Defendant] continually violates his

supervised release, and . . . some of those things are available in the Bureau of Prisons.”

R., Vol. 3 at 42; see § 3553(a)(2)(D).

Third, in reference to §§ 3553(a)(3)–(5), the district court explained that it was

considering the guideline range and the policy statements of the Sentencing Commission.

R., Vol. 3 at 43.

Finally, considering “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct,” the

4 Appellate Case: 23-2008 Document: 010110973223 Date Filed: 12/22/2023 Page: 5

district court found that “there is not an unwarranted sentencing disparity[;] given the

number of violations of supervised release[,] it would not be unusual for a defendant to

receive an upward variance”; and it added that “[i]f there is any sentencing disparity, it is

not unwarranted in this case, given the number of supervised release violations, the

frequency with which they happen, and the seriousness of this violation.” R., Vol. 3 at 43;

see § 3553(a)(6). The court also said there was no need to provide restitution. See

§ 3553(a)(7).

We cannot say that the district court’s sentencing decision, reached after cogent

and reasonable consideration of the § 3553(a) factors, was “arbitrary, capricious,

whimsical, or manifestly unreasonable.” Gross, 44 F.4th at 1302. Defendant’s arguments

to the contrary are unpersuasive. Defendant argues that his substance abuse is at the root

of his problems, that the public could best be protected if he receives substance-abuse

treatment, and therefore that the district court abused its discretion by not giving

sufficient weight to the opportunity provided by the Mescalero Tribal Court to provide

him with substance-abuse treatment “targeted toward Mescalero people.” Aplt. Br. at 16.

But the court considered and rejected this argument, remarking, “[T]o say there’s another

place for him to get treatment when he has failed to get treatment so many times in this

court—I mean, what’s different about Mescalero’s treatment versus all the treatment he’s

walked away from in this case?” R., Vol. 3 at 19–20. It was no abuse of discretion to

reject an argument that the availability of substance-abuse treatment justified a more

5 Appellate Case: 23-2008 Document: 010110973223 Date Filed: 12/22/2023 Page: 6

lenient sentence when Defendant had already violated his previous terms of supervision

multiple times, including by failing to attend court-ordered treatment.

Defendant also points to the difficult circumstances of his upbringing and his

substance-use disorder as mitigating factors. But while “evidence of a poor upbringing or

mental health problems can play a crucial mitigating role,” United States v. Lente, 759

F.3d 1149, 1173 (10th Cir. 2014) (internal quotation marks omitted), we cannot say that

the district court abused its discretion by affording Defendant’s mitigating evidence

limited weight. “Evidence of childhood trauma, psychological issues, or youthful

indiscretion is most powerful when accompanied by signs of recovery,” id.; but such

signs were absent here. As the district court noted, Defendant had already violated the

terms of his supervision five times before violating it a sixth time by driving “while very

intoxicated with two young children in the car.” R., Vol. 3 at 41. Indeed, “otherwise

mitigating evidence may be ‘double-edged’ because it can also indicate a likelihood of

recidivism.” Lente, 759 F.3d at 1173. Defendant’s inability to stop consuming alcohol

even when his alcohol use had resulted in six violations of his terms of supervised release

and his serving years in prison provided more than sufficient justification for the district

court’s “concern[] about [Defendant’s] alcohol consumption and protecting the public

from crimes of the defendant like the one that he committed during the violation in this

case.” R., Vol. 3 at 42. Though Defendant claims that “the best way of addressing [the

court’s] concern” for public safety and deterrence is to get him into substance-abuse

treatment, Aplt. Br. at 17–18, it was not an abuse of discretion for the court to decide

6 Appellate Case: 23-2008 Document: 010110973223 Date Filed: 12/22/2023 Page: 7

instead that a term of incarceration longer than the recommended policy guidelines would

better serve those ends.

Defendant also argues that while the nature and circumstances of his offense were

“serious,” they were not “egregious,” as this was the first time he had violated his

supervision by committing a new offense and because his act was not violent nor did he

flee from the police. Id. at 14. But the district court was well within the bounds of its

discretion to find his conduct to be a serious offense and to accord it heavy weight in

imposing Defendant’s sentence. See Barnes, 890 F.3d at 915 (“We give substantial

deference to the district court’s weighing of [the § 3553(a)] factors.”).

Perhaps Defendant’s weakest argument is that the district court should have

afforded more mitigating weight to his acceptance of responsibility at the revocation

hearing. As the government points out, the sincerity of his acceptance of responsibility

was highly questionable. Though he admitted he “screwed up bad this time,” R., Vol. 3 at

25, he also claimed that he was swerving to avoid potholes, not because he was drunk;

that he wasn’t very drunk at the time; that the officer who arrested him was “petty,” id. at

28; and that he didn’t know why the breathalyzer gave such a high BrAC.

Finally, Defendant argues that the district court should not have ordered more time

on supervised release. Sentencing courts imposing supervised release are instructed to

consider the § 3553(a) factors just as when imposing a sentence of incarceration. See

United States v. Johnson, 529 U.S. 53, 59–60 (2000). For the same reasons that there was

no abuse of discretion in the district court’s imposition of Defendant’s sentence of

7 Appellate Case: 23-2008 Document: 010110973223 Date Filed: 12/22/2023 Page: 8

incarceration, there was no abuse of discretion in imposing an additional two years of

supervision upon his release from prison.

In sum, “giv[ing] due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify” Defendant’s sentence, Gall, 552 U.S. at 51, we reject the

Defendant’s argument that his sentence was substantively unreasonable.

The Defendant’s sentence is AFFIRMED.

Entered for the Court

Harris L Hartz, Circuit Judge