United States v. Booker

63 F.4th 1254

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 28, 2023
• Docket: 22-7000
• Status: Published

Opinion

Appellate Case: 22-7000 Document: 010110833802 Date Filed: 03/28/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 28, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-7000

DONALD JOE BOOKER, JR.,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00037-JFH-1) _________________________________

Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

Linda A. Epperley, Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee. _________________________________

Before MORITZ, SEYMOUR, and EBEL, Circuit Judges. _________________________________

EBEL, Circuit Judge. _________________________________

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised

release, the district court revoked his supervision and sentenced him to twenty-four

months in prison, the statutory maximum. For the first time on appeal, Mr. Booker

argues that the district court erroneously based his sentence for violating supervised Appellate Case: 22-7000 Document: 010110833802 Date Filed: 03/28/2023 Page: 2

release on retribution whereas the statute governing the revocation of supervised

release implicitly prohibits considering retribution. See 18 U.S.C. § 3583(e).

We review Mr. Booker’s sentence for plain error. Clarifying the scope of 18

U.S.C. § 3583(e), we hold that district courts may not modify or revoke a term of

supervised release based on the need for retribution. Because the district court

quoted from a § 3553(a) sentencing factor representing retribution, we conclude that

the district court erred. But even assuming this error was plain, Mr. Booker has not

shown that it affected his substantial rights because we conclude there is no

reasonable probability that his sentence would have been shorter had the court not

erred. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

AFFIRM Mr. Booker’s twenty-four-month sentence.

I. BACKGROUND

In 2010, Mr. Booker pled guilty to one count of felon in possession, 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). He was sentenced in the Northern District of Oklahoma

to thirty-three months of imprisonment and three years of supervised release. Mr.

Booker’s term of supervision began in 2020 after a concurrent state sentence ended.

After a series of transfers, the Eastern District of Oklahoma took jurisdiction over his

supervised release in March 2021.

Mr. Booker’s probation officers first petitioned to revoke his supervised

release on May 3, 2021. The district court issued a warrant for his arrest that day.

The probation officers amended the petition twice, with the final amended petition

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approved by the district court on June 29, 2021. The final amended petition alleged

that Mr. Booker had violated several conditions of supervised release by

 violating traffic laws by speeding, driving without a license or insurance, and refusing to submit to sobriety testing,  testing positive for amphetamine or methamphetamine use on four separate occasions,  being found in possession of methamphetamine when he was booked into jail on the revocation warrant,  leaving the Eastern District of Oklahoma without permission on three separate occasions,  failing to notify his probation officer about contacts with law enforcement on three separate occasions, and  failing to appear for drug testing on five separate occasions.

Mr. Booker was arrested for these alleged violations and made an initial

appearance in the Western District of Oklahoma on September 21, 2021, where he

waived his right to an identity hearing. The Magistrate Judge ordered him

transported back to the Eastern District of Oklahoma that day. In the Eastern District

of Oklahoma, Mr. Booker waived his preliminary hearing at an initial appearance on

September 28, 2021. A final revocation and sentencing hearing was set for

December 16, 2021.

In a sentencing memorandum filed before the final revocation hearing, Mr.

Booker indicated that he intended to stipulate to the alleged violations and requested

a guideline sentence. The memorandum explained that Mr. Booker suffered from

“elements of schizophrenia” that “he need[ed] to treat with appropriate prescribed

drugs rather than . . . illegal drugs.” R Vol. 1 at 57. It also indicated that Mr. Booker

was prepared to undertake mental health treatment.

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The district court conducted the final revocation hearing on December 16,

2021. At the hearing, the court stated that it had calculated the guideline range to be

5 to 11 months in prison and that the statutory maximum sentence was a 24-month

term of imprisonment. The court recited the factual bases for Mr. Booker’s charged

supervised release violations, and Mr. Booker admitted to the violations. Mr. Booker

apologized to the court, admitted that he had been self-medicating with illegal

substances including methamphetamine, and represented that he was presently taking

Risperdal and engaging in mental health treatment in detention.

The court then revoked Mr. Booker’s supervised release and sentenced him to

the statutory maximum, a 24-month term of imprisonment. The court justified the

sentence as follows:

The Court has considered the violation policy statements in Chapter 7 of the United States Sentencing Guideline manual now in effect and the guidelines in general. The Court views these policies and guidelines as advisory in nature for the purpose of these proceedings. Nevertheless, the Court has considered the sentencing guidelines along with all the factors set forth in Title 18, U.S.C., Sections 3553(a), which are applicable in the revocation context pursuant to Title 18, U.S.C. 3583(e), and I’ve done this to reach an appropriate and reasonable sentence in this case. Specifically, I’ve considered the nature and circumstances of the numerous violations and the violation conduct and the history and characteristics of Mr. Booker. Defendant has shown repeated disregard for rules and condition of his supervised release. He has continued to commit new law violations and he has illegally possessed controlled substances, which he acknowledges. He has on multiple occasions failed to report to his law enforcement contact as required by the conditions of his supervision and he has also travelled outside the district of supervision without permission of his probation officer. Based upon these factors, a sentence outside the advisory guideline range is necessary to serve as an adequate deterrent to this defendant as well as

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others, promote respect for the law, and provide just punishment for the offense, and provide protection for the public. R. Vol. 2 at 22–23 (emphasis added). Mr. Booker appeals, arguing that the

district court’s reference to the need to “promote respect for the law, and provide just

punishment for the offense” was reversible error in the context of a supervised

release revocation proceeding. (Aplt. B. 5.) We agree that the district court erred,

but affirm because Mr. Booker has not shown that the error affected his substantial

rights.

II. STANDARD OF REVIEW

Because Mr. Booker did not raise this argument below, we review for plain

error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en

banc). Plain-error review requires Mr. Booker to “establish that (1) the district court

committed error; (2) the error was plain—that is, it was obvious under current well-

settled law; (3) the error affected the [d]efendant’s substantial rights; and (4) the

error seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Perez-Perez, 992 F.3d 970, 974 (10th Cir. 2021)

(quoting United States v. Dalton, 918 F.3d 1117, 1129–30 (10th Cir. 2019) (alteration

in Perez-Perez)).

III. DISCUSSION

A district court may revoke a term of supervised release and impose a term of

imprisonment “when a person violates a condition of his or her supervised release.”

United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004). “However, in doing

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so the district court is required to consider” a subset of the § 3553(a) sentencing

factors incorporated by reference into the statute governing the modification and

revocation of supervised release. Id.; 18 U.S.C. § 3583(e). Section 3583(e) provides

that a district court “may” terminate, modify, or revoke a term of supervised release

“after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),

(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(e).

Notably absent from this list is § 3553(a)(2)(A), which directs courts to

consider the

(2) the need for the sentence imposed-- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense[.] Section 3553(a)(2)(A) represents “retribution,” one of the “four purposes of

sentencing” that courts must consider when fashioning a sentence during the initial

sentencing process. Tapia v. United States, 564 U.S. 319, 325 (2011).

The district court justified Mr. Booker’s sentence for violation of supervised

release in part as “necessary to serve as an adequate deterrent to this defendant as

well as others, promote respect for the law, and provide just punishment for the

offense, and provide protection for the public.” R. Vol. 2 at 23. By referencing the

need to “promote respect for the law, and provide just punishment for the offense,”

the district court quoted from § 3553(a)(2)(A), the omitted factor.

Mr. Booker argues that the district court erred by quoting from

§ 3553(a)(2)(A) because its omission in § 3583(e) means that district courts may not

consider it when modifying or revoking a term of supervised release. In a series of 6 Appellate Case: 22-7000 Document: 010110833802 Date Filed: 03/28/2023 Page: 7

unpublished opinions, we have acknowledged that our circuit has not decided

whether it is error to consider this “retribution” factor when modifying or revoking a

term of supervised release. See United States v. Lee, 650 F. App’x 948, 951 (10th

Cir. 2016) (unpublished) (“Neither the Supreme Court nor this court have decided

whether consideration of these § 3553(a)(2)(A) factors [not incorporated into

§ 3583(e)] renders a revocation sentence procedurally unreasonable.”); United States

v. Miller, 608 F. App’x 707, 709 (10th Cir. 2015) (unpublished); United States v.

Douglas, 556 F. App’x 747, 750–51 (10th Cir. 2014) (unpublished); United States v.

Chatburn, 505 F. App’x 713, 716–17 (10th Cir. 2012) (unpublished).

We construe the omission in § 3583(e) of the retribution factor found in

§ 3553(a)(2)(A) to preclude a sentencing court from relying on the need for

retribution when modifying or revoking a term of supervised release and imposing a

new prison sentence for violations of supervised release. However, we affirm

because the district court’s reference to § 3553(a)(2)(A) did not affect Mr. Booker’s

substantial rights.

A. Section 3583(e) prohibits district courts from basing a revocation sentence on § 3553(a)(2)(A).

When a sentencing statute mandates consideration of certain factors, it is

procedural error to consider unenumerated factors. See United States v. Smart, 518

F.3d 800, 803–04 (10th Cir. 2008); cf. Navajo Nation v. Dalley, 896 F.3d 1196, 1213

(10th Cir. 2018) (“[T]he enumeration of certain things in a statute suggests that the

legislature had no intent of including things not listed or embraced.” (quoting

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Seneca-Cayuga Tribe of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1034

& n.24 (10th Cir. 2003))). In Smart, we held that it was procedural error for a district

court to base an initial term of imprisonment on a sentencing factor not enumerated

in § 3553(a). Smart, 518 F.3d at 803–04. By its terms, § 3553(a) requires district

courts to consider those factors that were enumerated in that section of the statute.

Id.; see 18 U.S.C. § 3553(a) (“The court, in determining the particular sentence to be

imposed, shall consider . . . .”) (emphasis added). Because the statute “mandates

consideration of its enumerated factors,” we concluded that it “implicitly forbids

consideration of factors outside its scope.” Smart, 518 F.3d at 803–04.

The rule from Smart applies here because § 3583(e) also requires courts to

consider certain § 3553(a) factors when sentencing after a supervised release

violation. United States v. McBride, 633 F.3d 1229, 1231 (10th Cir. 2011) (noting

that “[b]efore deciding whether to revoke a term of supervised release and

determining the sentence imposed after revocation, the district court must consider”

the § 3553(a) factors enumerated in § 3583(e) (emphasis added)); Kelley, 359 F.3d at

1304 (noting that when modifying or revoking a term of supervised release, “the

district court is required to consider the factors set forth in various subsections of 18

U.S.C. § 3553(a)”). Because we read § 3583(e) to set forth those sentencing factors

that courts must consider, the subsection “implicitly forbids consideration” of any

other § 3553(a) factors when modifying or revoking a term of supervised release.

Smart, 518 F.3d at 803–04. So, the omission of § 3553(a)(2)(A) from the sentencing

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factors enumerated in § 3583(e) precludes a court from considering the need for

retribution when modifying or revoking a term of supervised release.1

We find support for our conclusion in cases discussing § 3583(c), a similarly

worded subsection that governs how a term of supervised release may be imposed.

18 U.S.C. § 3583(c). See Nat’l Credit Union Admin. v. First Nat. Bank & Tr. Co.,

522 U.S. 479, 501 (1998) (“[S]imilar language contained within the same section of a

statute must be accorded a consistent meaning.”). That subsection likewise requires

district courts to consider certain § 3553(a) factors, but not § 3553(a)(2)(A).2 In

Tapia v. United States, the Supreme Court addressed § 3583(c) in dicta, noting that

its import was to prohibit courts from “tak[ing] account of retribution (the first

1 We note that several of our sister circuits have concluded that mere reference to § 3553(a)(2)(A) does not necessarily make a revocation sentence per se unreasonable, but that reversible error may occur when the § 3553(a)(2)(A) factor regarding retribution is the primary or predominating justification for a revocation sentence. United States v. Lee, 650 F. App’x 948, 952 (10th Cir. 2016) (unpublished) (collecting cases); see United States v. Sanchez, 900 F.3d 678, 684 n.5 (5th Cir. 2018); United States v. Phillips, 791 F.3d 698, 701 (7th Cir. 2015); United States v. Webb, 738 F.3d 638, 642 (4th Cir. 2013); United States v. Young, 634 F.3d 233, 241 (3d Cir. 2011); United States v. Simtob, 485 F.3d 1058, 1062–64 (9th Cir. 2007). McBride and Kelley oblige us to chart a different path. 2 Section 3583(c) states:

The court, in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release, shall consider the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). (emphasis added).

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purpose listed in § 3553(a)(2)) when imposing a term of supervised release.” 564

U.S. 319, 326 (2011).3 And in Benvie, we approvingly quoted Tapia for the same

proposition. United States v. Benvie, 18 F.4th 665, 671 (10th Cir. 2021). We

remanded for reconsideration of four of the supervised release conditions because the

district court’s justification (1) did “not sufficiently explain, even in generalized

terms, how the special conditions further the requirements of [18 U.S.C.] § 3583(d),”

and (2) may have rested on “an impermissible rationale” because the district court

justified the special conditions as “sufficiently punitive.” Id. While it is true that

neither case squarely held that § 3583(c) prohibits a court from imposing an initial

term of supervised release for purposes of retribution, they both support the

proposition that when a statute uses mandatory language to direct a court to consider

some but not all § 3553(a) sentencing factors, it is procedural error to consider an

unenumerated factor. So, we consider both cases persuasive here.

B. The district court erred in sentencing Mr. Booker.

With the foregoing established, we conclude that the district court erred in

sentencing Mr. Booker. Our reason is straightforward: The omission of

§ 3553(a)(2)(A) from the list of sentencing factors enumerated in § 3583(e) means

that a district court may not consider the need for a revocation sentence to (1) “reflect

3 This court considers itself bound by dicta from the Supreme Court almost as firmly as we are by its holdings. See United States v. Sutton, 30 F.4th 981, 987 (10th Cir. 2022); Utah Republican Party v. Cox, 892 F.3d 1066, 1079 (10th Cir. 2018) (noting that this rule applies with particular force when the “dicta is recent and not enfeebled by later statements” (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996))). 10 Appellate Case: 22-7000 Document: 010110833802 Date Filed: 03/28/2023 Page: 11

the seriousness of the offense,” (2) “promote respect for the law,” and (3) “provide

just punishment for the offense” when modifying or revoking a term of supervised

release. So, when the district court concluded that “a sentence outside the advisory

guideline range is necessary to . . . promote respect for the law, and provide just

punishment for the offense,” it necessarily erred. R. Vol. 2 at 23.

We reach our conclusion even though the bulk of the sentencing colloquy was

focused on permissible considerations. We think it clear that when a defendant

violates the terms of his supervised release, a district court can consider the conduct

that resulted in the violations of the conditions of supervised release when deciding

whether to revoke or modify the defendant’s supervised release. See United States v.

Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007) (“To ignore the new violation

underlying the revocation entirely would be to ignore a key predictor of a violator’s

potential for reintroduction into society without relapse.”). This information is

clearly relevant to assessing the “history and characteristics of the defendant,” 18

U.S.C. § 3553(a)(1), whether a sentence is likely to deter the defendant from

committing further crimes, id. § 3553(a)(2)(B), and whether the public needs to be

protected from the defendant, id. § 3553(a)(2)(C). See 18 U.S.C. § 3583(e) (listing

these factors as properly considered in the supervised-release revocation context);

U.S.S.G. Ch. 7, Pt. A(4) (2021) (“[T]he purpose of . . . supervised release should

focus on the integration of the violator into the community, while providing the

supervision designed to limit further criminal conduct.”).

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Here, the district court properly considered whether a term of imprisonment

would deter Mr. Booker and others from engaging in violative conduct, the need to

protect the public, the nature of Mr. Booker’s post-release conduct, and the number

of violations. See R. Vol. 2 at 20 (“I have never seen so many violations of

supervised release . . . [Y]ou really disregarded just about every term of your

supervised release. It was not successful at all.”); Id. at 21 (“It sounds like you’ve

have [sic] some history of drug use, and maybe you need some help coping with

that.”); Id. at 22–23 (“Defendant has shown repeated disregard for rules and

condition of his supervised release. He has continued to commit new law violations

and he has illegally possessed controlled substances, which he acknowledges. He has

on multiple occasions failed to report to his law enforcement contact as required by

the conditions of his supervision and he has also travelled outside the district of

supervision without permission of his probation officer.”). These are all permissible

bases for revocation of the initial supervised release and resentencing and were

relevant to determining (1) the extent to which Mr. Booker breached the trust of the

district court, see United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th

Cir. 2005), and (2) the likelihood that Mr. Booker would successfully abide by any

future supervised release conditions. See 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C),

(a)(2)(D), (a)(4), (a)(5); see generally U.S.S.G. Ch. 7, Pt. A (2021). But they do not

cancel out the fact that the court also justified Mr. Booker’s sentence in part with

direct quotation to factors that may not be considered when modifying or revoking a

term of supervised release.

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The government argues that the district court did not err because the omission

of § 3553(a)(2)(A) only prohibited the district court from punishing Mr. Booker

again for his original offense of conviction. As our prior discussion indicates, we

disagree. Here, the district court specifically justified Mr. Booker’s new sentence

only on his violation of the terms of supervised release when it quoted the prohibited

retribution factors. Clearly, violation of the terms of supervised release may be

considered by the district court in determining how to address a defendant’s violation

of those terms. The error here was in characterizing the new sentence, at least in

part, as retributive. That would be error whether the district court was considering

retribution for the original criminal conduct or for the behavior in violation of the

terms of supervised release, or both.

The government also relies on United States v. Douglas, but we find that

unpublished case distinguishable. 556 F. App’x 747, 750 (10th Cir. 2014)

(unpublished). For one, Douglas assumed that the district court erred when it

referred to “the need to punish” the defendant but concluded that any error was not

plain in light of a circuit split and no binding Tenth Circuit authority. Id. at 750–51.

And even though the Douglas panel expressed doubt that the district court’s reference

to punishment was error, it did so in part because the district court “never explicitly

invoked § 3553(a)(2)(A) in its fleeting nod to punishment.” Id. at 749. But that is

exactly what we have here: an explicit invocation of § 3553(a)(2)(A). So, Douglas

does not undermine our conclusion that the district court erred.

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In sum, we conclude that the district court erred because it directly quoted

from § 3553(a)(2)(A)—a factor it could not consider when modifying or revoking

Mr. Booker’s term of supervised release—when explaining the reasons for Mr.

Booker’s sentence.

C. This error did not affect Mr. Booker’s substantial rights.

Mr. Booker’s appeal, however, fails at the third step of the plain-error analysis

because he has not shown that the district court’s error affected his substantial rights.

“An error seriously affects the defendant’s substantial rights . . . when the defendant

demonstrates ‘that there is a reasonable probability that, but for the error claimed, the

result of the proceeding would have been different.’” United States v. Rosales-

Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (quoting United States v. Mendoza,

698 F.3d 1303, 1310 (10th Cir. 2012)); United States v. Cordery, 656 F.3d 1103,

1108 (10th Cir. 2011). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” United States v. Wolfname, 835 F.3d 1214,

1222 (10th Cir. 2016) (quoting Rosales-Miranda, 755 F.3d at 1258)).

Based on the record, we cannot conclude that Mr. Booker would have received

a lower sentence had the district court not quoted from § 3553(a)(2)(A). To be sure,

the quotation itself was error. But “a formulaic recitation of [a] statutorily

enumerated sentencing factor[] supplies little indication that a court lengthened a

sentence for [retributive] purposes.” United States v. Collins, 461 F. App’x 807, 810

(10th Cir. 2012) (unpublished). That is especially true here, where the district court

indicated that it was aware that not all § 3553(a) factors were applicable in the 14 Appellate Case: 22-7000 Document: 010110833802 Date Filed: 03/28/2023 Page: 15

revocation sentencing context. R. Vol. 2 at 22 (“Nevertheless, the Court has

considered the sentencing guidelines along with all the factors set forth in [18 U.S.C.

§ 3553(a)], which are applicable in the revocation context pursuant to [18 U.S.C.

§ 3583(e)].”); see Collins, 461 F. App’x at 810.4

We considered a similar issue in Penn, where the district court justified a post-

revocation sentence as “just punishment for [the defendant’s] violation.” United

States v. Penn, 601 F.3d 1007, 1012 (10th Cir. 2010). We concluded that a single

reference to punishment did not affect the defendant’s substantial rights. Id. The

court did not rely on the need for punishment in setting forth his initial reasons for

the new sentence based upon violation of the terms of supervised release, and only

raised it after defense counsel objected to his client receiving a high-end sentence.

Id. “[B]ecause just punishment was not among the initial justifications the district

court gave,” we saw “no reason to conclude [the defendant’s] sentence would have

been different.” Id.

Mr. Booker, citing Cordery, argues that because the district court referenced

one impermissible factor as a reason for setting his sentence, we must conclude that

“a lesser sentence [is] reasonably probable.” (Aplt. B. 15; Ry. B. 8.) We disagree.

4 Mr. Booker interprets the district court’s remarks differently, arguing that the district court’s reference to “all the factors set forth” meant that it considered every § 3553(a) factor, including § 3553(a)(2)(A). (Aplt. B. 9–10.) But we think the district court understood that not all § 3553(a) factors were applicable because it indicated that it was referring to the factors “which are applicable in the revocation context pursuant to [18 U.S.C. § 3583(e).]” R. Vol. 2 at 22. So, we disagree with Mr. Booker’s interpretation of the district court’s remarks. 15 Appellate Case: 22-7000 Document: 010110833802 Date Filed: 03/28/2023 Page: 16

In Cordery, the district court concluded that a sentence of “at least 56 months” was

necessary to qualify the defendant for rehabilitative services in prison. 656 F.3d at

1105. We concluded that the resulting 56-month sentence was error, because the

Supreme Court held in Tapia that courts may not impose or lengthen a sentence for

rehabilitative purposes. Id. at 1106. So, we agreed that “the court’s emphasis on its

calculation of [treatment] eligibility suggests a reasonable probability that the

sentence would have been lower without this consideration.” Id. at 1108.

Unlike in Cordery, the district court in this case did not emphasize its reliance

on an impermissible factor when sentencing Mr. Booker. It made a single

impermissible reference to § 3553(a)(2)(A) at the end of a lengthy and specific

discussion of the appropriate reasons why a statutory-maximum sentence was

necessary given Mr. Booker’s numerous supervised release violations and the fact

that he clearly needed help to comply with the law in the future. While Mr. Booker

casts the tenor of the district court’s sentencing remarks as retributive, we disagree.

The district court’s sentencing remarks were proper and—apart from the single

reference to § 3553(a)(2)(A)—focused on the sorts of considerations we expect

courts to weigh when deciding whether to revoke supervised release. So, we think

this case is closer to Penn than to Cordery.

We also find Farley distinguishable. United States v. Farley, 36 F.4th 1245,

1253 (10th Cir. 2022). There, the district court applied a six-level variance based on

an erroneous interpretation of the guidelines. Id. We found the district court’s error

affected the defendant’s substantial rights because it “was integral in the district

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court’s reasoning and acted as a limiting factor in how low” the court “was willing to

go with Mr. Farley’s sentence.” Id. But here, we have no indication that the district

court would have imposed a lower sentence had it not quoted from § 3553(a)(2)(A).

Had Mr. Booker raised this objection below, we are confident that the district

court would have clarified its remarks and excised the erroneous quotation before

imposing the same sentence. But because Mr. Booker “did not raise the issue when it

could have been meaningfully addressed,” we are constrained to review a record

“that has now become set in stone.” United States v. Thornton, 846 F.3d 1110, 1119

(10th Cir. 2017). Thus, plain error review is appropriate here and under that

standard, Mr. Booker’s claim fails.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed by the district

court. We DENY Mr. Booker’s Motion to Expedite Ruling as moot.