United States v. Chee

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 21, 2025
• Docket: 24-2053
• Status: Unpublished

Opinion

Appellate Case: 24-2053 Document: 53 Date Filed: 02/21/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 21, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-2053 (D.C. No. 2:23-CR-00034-MIS-1) DENNETT JEROME CHEE, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BACHARACH, and CARSON, Circuit Judges. _________________________________

Dennett Jerome Chee pled guilty to one count of assault in Indian Country

resulting in serious bodily injury. See 18 U.S.C. §§ 113(a)(6) & 1153(a). The

district court sentenced him to 108 months in prison, a significant upward variance

from the United States Sentencing Guidelines (“Guidelines”) advisory range of 30 to

37 months. Mr. Chee now appeals that sentence, arguing it was both procedurally

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-2053 Document: 53 Date Filed: 02/21/2025 Page: 2

and substantively unreasonable. Exercising jurisdiction under 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Mr. Chee is a member of the Mescalero Apache tribe. In May 2022, he and a

friend severely beat an adult male on the Mescalero Apache Reservation. The victim

incurred orbital wall fractures in both eye sockets, sinus hemorrhaging, and other

injuries. He spent six days in the hospital, much of it in severe pain.

A grand jury indicted Mr. Chee for one count of assault resulting in serious

bodily injury. He pled guilty to that charge without a plea agreement. A probation

officer prepared a presentence investigation report (“PSR”). Regarding criminal

history, the PSR listed six state-court convictions (three for driving with a suspended

license, two for disorderly conduct, and one for driving under the influence) and one

federal conviction for assault with a dangerous weapon (he received a 27-month

prison sentence and his supervised release was twice revoked). He committed these

offenses between the ages 19 and 35. Mr. Chee was 37 when the PSR was prepared.

The PSR also itemized 19 tribal court convictions that Mr. Chee committed

between ages 18 and 35 and 17 arrests between ages 26 and 35. The tribal-court

convictions included assault and battery, driving under the influence, resisting arrest,

fleeing law enforcement, battery of a law enforcement officer, reckless driving, and

criminal damage to property. The PSR noted that none of the tribal convictions

counted for Mr. Chee’s criminal history score. See U.S.S.G. § 4A1.2(i) (“Sentences

resulting from tribal court convictions are not counted . . . .”). The PSR suggested an

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upward departure because Mr. Chee’s criminal history score underrepresented his

actual criminal history. The PSR stated that including the tribal convictions in the

criminal history score would have led to a Guidelines range of 63 to 78 months. The

Government, in its presentencing filings, asked for a variance to 78 months to

account for Mr. Chee’s full criminal history.1

At the sentencing hearing, the district court announced it was considering an

upward variance. It denied Mr. Chee’s objections to the PSR’s Guidelines

calculations and calculated a sentencing range of 15 to 21 months. The parties agree,

however, that the court failed to account for an undisputed sentencing enhancement,

so the correct range was 30 to 37 months. See Aplt. Opening Br. at 7; Aplee. Resp.

Br. at 23 n.5. The court heard arguments on the appropriate sentence and made clear

it would consider Mr. Chee’s full criminal history, including tribal-court matters, as

part of his history and characteristics under 18 U.S.C. § 3553(a)(1).

The district court’s discussion with the parties included references to drug and

alcohol treatment. For example, the Government stated that “a longer sentence

would be appropriate so that the defendant can get treatment that he needs.” R. vol.

III at 20. Mr. Chee, during his allocution, agreed he needed treatment, prompting the

court to ask, “You’ve been to federal prison before. You’ve been on federal

1 A departure is a sentence outside the Guidelines-specified range, arrived at through a process set forth in the Guidelines themselves; whereas a variance is a sentence outside the Guidelines range based on the district court’s discretion when considering the sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. Adams, 751 F.3d 1175, 1181–82 (10th Cir. 2014).

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supervision for violence. Why didn’t you get treatment then?” Id. at 26–27. Mr.

Chee’s answer was nonresponsive, prompting the court to ask the same question two

more times. Mr. Chee finally responded, “[T]here was just a lot of things that were

happening at that time.” Id. at 28. The court then twice asked why Mr. Chee did not

seek help after his release from prison. Id. at 28–29. Mr. Chee answered, “[T]hat’s a

question that I know I find hard to answer here.” Id. at 29.

Following Mr. Chee’s allocution, the district court announced it would impose

a 108-month sentence. It gave a detailed explanation of the information and factors it

was considering. See id. at 32–39. It restated Mr. Chee’s arguments for leniency and

other relevant information he offered to the court. The court noted it was considering

Mr. Chee’s “severe substance abuse issues,” id. at 32, and that he was “requesting

treatment,” id. at 33.

The district court next addressed the § 3553(a) sentencing factors, focusing

almost entirely on the assault’s severity and Mr. Chee’s criminal history. As to the

latter, the court summarized of each of Mr. Chee’s convictions. The court also

addressed § 3553(a)(2)(D), which requires consideration of “the need for the

sentence imposed . . . to provide the defendant with needed educational or vocational

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

It said those matters were “best given to the defendant in the Bureau of Prisons, but

that—the Court will also impose treatment while on supervised release.” R. vol. III

at 37.

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Finally, the district court concluded, “I am varying based on the 3553(a)

factors, and I am considering the criminal history, how lengthy it is, and that it’s

violent, and the evidence of abuse of alcohol.” Id. at 38.

The district court’s written judgment recommended that Mr. Chee “participate

in the Bureau of Prisons 500 hour drug and alcohol treatment program.” R. vol. I at

234. Also, in the judgment’s statement of reasons, the court gave a two-paragraph

summary of the explanation given in open court, including the following sentence:

“The Court considered the defendant would benefit from treatment in the [Bureau of

Prisons] and while on a [term of supervised release].” Suppl. R. at 5.

Mr. Chee timely appealed.

II. DISCUSSION

A. Procedural Reasonableness

Mr. Chee argues the district court violated Tapia v. United States, 564 U.S.

319 (2011). Tapia addressed the tension between (1) § 3553(a)(2)(D), which directs

the district court to consider “needed educational or vocational training, medical care,

or other correctional treatment” when formulating its sentence, and (2) § 3582(a),

which requires the district court to consider the § 3553(a) factors while at the same

time “recognizing that imprisonment is not an appropriate means of promoting

correction and rehabilitation.” Tapia held that “[a] court commits no error by

discussing the opportunities for rehabilitation within prison or the benefits of specific

treatment or training programs,” 564 U.S. at 334, but “a court may not impose or

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lengthen a prison sentence to enable an offender to complete a treatment program or

otherwise to promote rehabilitation,” id. at 335.

In Mr. Chee’s view, the district court lengthened his sentence so he could

complete the drug and alcohol treatment program—the error at issue in Tapia. See

id. at 334. Mr. Chee concedes he did not raise this argument in the district court, and

therefore we review for plain error. See United States v. Thornton, 846 F.3d 1110,

1114 (10th Cir. 2017). This means Mr. Chee must show: “(1) the district court

erred, (2) the error was plain, (3) the error prejudiced his substantial rights, and

(4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id.

In their briefs, both sides present credible arguments on whether the district

court’s statements at the sentencing hearing and in post-sentencing documents

demonstrate a plain Tapia error. Although a close question seldom leads to plain

error, see United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir. 1993), we resolve

this appeal at the third prong of the plain-error standard—whether “the error

prejudiced [Mr. Chee’s] substantial rights,” Thornton, 846 F.3d at 1114. Under this

prong, Mr. Chee must demonstrate “a reasonable probability that, but for [the error

claimed], the result of the proceeding would have been different,” meaning “the

probability of a different result is sufficient to undermine confidence in the outcome

of the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 82, 83 (2004)

(quotations omitted).

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Even if the district court committed plain Tapia error, Mr. Chee does not show

a sufficient probability that he would have received a lower sentence absent the error.

At the sentencing hearing, the district court focused on the need for incapacitation in

light of (a) the assault’s violence and (b) Mr. Chee’s extensive criminal history. See

United States v. Ruiz, 125 F.4th 1342, 1349–51 (10th Cir. 2025) (assuming plain

error, but finding no reasonable probability of a different outcome because, among

other things, “from the outset of the sentencing hearing, the district court was

seriously troubled by [the defendant’s] significant criminal history”). The court’s

statements about drug and alcohol treatment pale in comparison to its concern that

Mr. Chee needs a lengthy sentence to protect the public from further crimes. We

therefore affirm the procedural reasonableness of the district court’s sentence.

B. Substantive Reasonableness

Mr. Chee also argues his sentence was substantively unreasonable.

Substantive reasonableness concerns how the district court weighed “the totality of

the circumstances in light of the 18 U.S.C. § 3553(a) factors.” United States v.

Barnes, 890 F.3d 910, 915 (10th Cir. 2018) (quotations omitted). “[N]o algorithm

exists that instructs the district judge how to combine the factors or what weight to

put on each one.” Id. at 916. Thus, when faced with a substantive reasonableness

challenge, “courts of appeals must review all sentences—whether inside, just outside,

or significantly outside the Guidelines range—under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Mr. Chee’s substantive

reasonable arguments fail to show an abuse of discretion.

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First, Mr. Chee argues the district court misinterpreted his criminal history,

contending his history is not significantly violent. It instead shows, he says, mostly

“conduct [that] was alcohol or drug related,” Aplt. Opening Br. at 18, which should

be seen as mitigating. We are not persuaded. Mr. Chee’s criminal history reveals

numerous convictions for violent acts (e.g., assault, resisting arrest) and dangerous

acts (e.g., driving while intoxicated, fleeing police). It also reveals numerous arrests

for similar crimes. Moreover, district courts may appropriately consider the need to

protect the public even from nonviolent drug offenses. See United States v. Lente,

759 F.3d 1149, 1168 (10th Cir. 2014).

Second, Mr. Chee argues the assault in this case was not unusually violent

compared to other aggravated assaults. He offers no support. The district court

reasonably viewed the assault that put the victim in the hospital for six days with

serious injuries as severe enough for an upward variance.

Third, Mr. Chee says the district court did not adequately consider the

Guidelines recommendation. See § 3553(a)(4)(A) (requiring the district court to

consider the Guidelines sentencing range). He points out that 108 months is almost

three times the top of the 37-month Guidelines range. This argument is a variation of

his contention that his criminal history does not warrant a large upward variance.

The district court adequately explained why it thought otherwise.

Fourth, Mr. Chee asserts that the district court must also consider “pertinent”

Sentencing Commission policy statements. See § 3553(a)(5). He points to U.S.S.G.

§ 5K2.0(d)(1), which states that a district court “may not depart from the applicable

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guideline range based on,” among other things, “drug or alcohol dependence or

abuse” (capitalization normalized). But Mr. Chee cites no authority that a restriction

on departure limits a variance. He merely asserts there is “tension” between the

district court’s reasoning and this policy statement. Aplt. Opening Br. at 20.

Relatedly, Mr. Chee says policy statements governing upward departures based on

underrepresentation of the criminal history, see U.S.S.G. § 4A1.3(a), are “a useful

comparison,” Aplt. Opening Br. at 21, arguing that factors under the upward

departure standards would have yielded, at most, a recommended range of 70 to 87

months. But again, Mr. Chee fails to convince us that these departure guidelines are

pertinent to weighing a variance.

Fifth, Mr. Chee argues his sentence creates an unreasonable disparity. See

§ 3553(a)(6) (requiring the district court to consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct”). Drawing on Sentencing Commission statistics, he says

108 months is three times the median sentence for assault in the Tenth Circuit and

more than double the average. In addition, among those sentenced for assault in the

Tenth Circuit in 2023, 80 percent of defendants with the maximum criminal history

score—which is higher than Mr. Chee’s hypothetical criminal history score even if

his tribal convictions had counted—received sentences of less than 10 years. The

district court stated, however, “I don’t believe there is a sentencing disparity, but if

there is a sentencing disparity, I find that it is, in fact, warranted by the specific facts

of this case.” R. vol. III at 38. This statement came at the end of the district court’s

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lengthy explanation for the 108-month sentence. It therefore explained the claimed

disparity and adequately addressed the charge to avoid “unwarranted . . . disparities,”

§ 3553(a)(6).

Sixth, Mr. Chee claims his sentence is not “just,” § 3553(a)(2)(A), does not

“promote respect for the law,” id., and does not promote “deterrence to criminal

conduct,” § 3553(a)(2)(B). In his view, “[a] Guidelines sentence would achieve these

purposes no less than the sentence the court imposed.” Aplt. Opening Br. at 23. But

these general statements are conclusory and carry weight only if his specific

objections to the length of the sentence are persuasive. We must defer to the district

court’s discretion unless it “exceeded the bounds of permissible choice,” Barnes, 890

F.3d at 915 (quotations omitted). Considering Mr. Chee’s arguments individually or

collectively, the district court’s 108-month sentence does not fall outside these

bounds.

III. CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge