FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 19, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-7071 (D.C. No. 6:07-CR-00065-RAW-1) LAURENCE ROBERT RHEA, (E.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________
Laurence Rhea challenges the substantive reasonableness of his 36-month
sentence for his second violation of supervised release. Exercising jurisdiction under
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm Rhea’s sentence.
I.
In November 2007, Rhea pled guilty to possession with intent to distribute and
distribution of cocaine base. He was sentenced to 120 months’ imprisonment,
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. followed by a 60-month term of supervised release. The court imposed mandatory
and standard conditions on Rhea’s supervised release. As relevant here, the
mandatory conditions provided that Rhea “shall not commit another federal, state or
local crime”; “unlawfully possess a controlled substance”; and must “submit to one
drug test within 15 days of release from imprisonment and at least two periodic drug
tests thereafter, as determined by the court.” ROA, Vol. I, at 31. The standard
conditions required Rhea to answer “truthfully all inquiries by the probation officer”
(Standard Condition #3); “notify the probation officer at least ten days prior to any
change in . . . employment” (Standard Condition #6); and “refrain from excessive use
of alcohol [or] . . . any controlled substance . . . except as prescribed by a physician”
(Standard Condition #7). Id.
Rhea served the custodial portion of his sentence and entered supervised
release on June 19, 2015. In less than six months, Rhea violated all three above-
mentioned standard conditions. He tested positive for cocaine during a urine drug
screening conducted on November 10, 2015, violating Standard Condition #7. Rhea
did not show up for work November 9–11, lost his job, and failed to inform his
probation officer until two weeks later, violating Standard Condition #6. Rhea also
violated Standard Condition #3 by failing to truthfully respond to his probation
officer’s inquiries about his drug use. Rhea’s probation officer reported these
violations to the court. Per the probation officer’s recommendation, no action was
taken in response to Rhea’s violations of his supervised release.
2 In the year that followed, Rhea disregarded Standard Condition #7 on at least
five separate occasions. And on two occasions, the Oklahoma police arrested Rhea—
once for public intoxication; once for driving under the influence of alcohol—in
violation of the mandatory condition that Rhea abstain from criminal activity. After
each violation of his supervised release, the probation officer did not seek court
action and instead referred Rhea to outpatient substance abuse counseling.
On January 21, 2017, Oklahoma police arrested Rhea for the third time when
he was caught transporting an open container of alcohol. In response to this violation
and all prior violations, the probation officer petitioned the court to revoke Rhea’s
supervised release. The court issued a warrant for Rhea’s arrest.
At the revocation hearing, Rhea stipulated to the allegations in the probation
officer’s petition to revoke his supervised release. The statutory maximum for
violating a condition of supervised release is 60 months’ imprisonment. 18 U.S.C.
§ 3583(e). Rhea’s guideline sentencing range is 6–12 months. See ROA, Vol. II, at
14; see also U.S.S.G. § 7B1.4(a) (U.S. Sentencing Comm’n 2016). Both the
government and the probation officer asked the court to sentence Rhea on the low-
end of the guideline range. Supp. ROA at 10–12. The district court decided to give
Rhea a “second chance,” id. at 13, and sentenced Rhea to six months, the bottom of
the guideline range, with credit for the three months already served.
Defendant discharged his remaining three months’ imprisonment and began a
new term of supervision on July 28, 2017. Ten days later, Oklahoma police arrested
Rhea for driving under the influence, transporting an open container of alcohol, and
3 failing to carry a current security verification form in his car. On August 11, 2017,
the probation officer filed a second petition to revoke Rhea’s supervision.
Before the second revocation hearing, Oklahoma dismissed all charges except
the open container charge. Rhea stipulated that he had consumed alcohol and that
there was an open container of alcohol in his car. The district court ruled that Rhea
“has shown little regard for the rules and conditions of supervised release” and
sentenced him to 36 months’ imprisonment. ROA, Vol. II, at 19.
II.
On appeal, Rhea challenges the substantive reasonableness of his 36-month
sentence. Aplt. Br. at 7. Reviewing for abuse of discretion, see United States v.
Haymond, 869 F.3d 1153, 1157 (10th Cir. 2017), we affirm.
“[T]he district court may impose any sentence within the statutory maximum,”
United States v. Vigil, 696 F.3d 997, 1002 (10th Cir. 2012), provided the sentence is
not “arbitrary, capricious, whimsical, or manifestly unreasonable,” United States v.
Steele, 603 F.3d 803, 809 (10th Cir. 2010). And since the “sentencing judge is in a
superior position to find facts and judge their import,” an appellate court gives “due
deference to the district court’s decision” that a variance is justified. Gall v. United
States, 552 U.S. 38, 51 (2007) (quotations omitted); Cf. United States v. Jones, 678
F. App’x 626, 628–29 (10th Cir. 2017) (unpublished) (applying Gall to sentences
imposed for revocation of supervised release).
The district court’s conclusion that Rhea’s conduct merited an upward
variance is substantively reasonable. The 36-month sentence, while above the
4 guideline range, was well within the statutory maximum of 60 months. See 18
U.S.C. § 3583(e). The court justified the sentence by consulting the proper § 3553(a)
factors.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 19, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-7071 (D.C. No. 6:07-CR-00065-RAW-1) LAURENCE ROBERT RHEA, (E.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________
Laurence Rhea challenges the substantive reasonableness of his 36-month
sentence for his second violation of supervised release. Exercising jurisdiction under
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm Rhea’s sentence.
I.
In November 2007, Rhea pled guilty to possession with intent to distribute and
distribution of cocaine base. He was sentenced to 120 months’ imprisonment,
* 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. followed by a 60-month term of supervised release. The court imposed mandatory
and standard conditions on Rhea’s supervised release. As relevant here, the
mandatory conditions provided that Rhea “shall not commit another federal, state or
local crime”; “unlawfully possess a controlled substance”; and must “submit to one
drug test within 15 days of release from imprisonment and at least two periodic drug
tests thereafter, as determined by the court.” ROA, Vol. I, at 31. The standard
conditions required Rhea to answer “truthfully all inquiries by the probation officer”
(Standard Condition #3); “notify the probation officer at least ten days prior to any
change in . . . employment” (Standard Condition #6); and “refrain from excessive use
of alcohol [or] . . . any controlled substance . . . except as prescribed by a physician”
(Standard Condition #7). Id.
Rhea served the custodial portion of his sentence and entered supervised
release on June 19, 2015. In less than six months, Rhea violated all three above-
mentioned standard conditions. He tested positive for cocaine during a urine drug
screening conducted on November 10, 2015, violating Standard Condition #7. Rhea
did not show up for work November 9–11, lost his job, and failed to inform his
probation officer until two weeks later, violating Standard Condition #6. Rhea also
violated Standard Condition #3 by failing to truthfully respond to his probation
officer’s inquiries about his drug use. Rhea’s probation officer reported these
violations to the court. Per the probation officer’s recommendation, no action was
taken in response to Rhea’s violations of his supervised release.
2 In the year that followed, Rhea disregarded Standard Condition #7 on at least
five separate occasions. And on two occasions, the Oklahoma police arrested Rhea—
once for public intoxication; once for driving under the influence of alcohol—in
violation of the mandatory condition that Rhea abstain from criminal activity. After
each violation of his supervised release, the probation officer did not seek court
action and instead referred Rhea to outpatient substance abuse counseling.
On January 21, 2017, Oklahoma police arrested Rhea for the third time when
he was caught transporting an open container of alcohol. In response to this violation
and all prior violations, the probation officer petitioned the court to revoke Rhea’s
supervised release. The court issued a warrant for Rhea’s arrest.
At the revocation hearing, Rhea stipulated to the allegations in the probation
officer’s petition to revoke his supervised release. The statutory maximum for
violating a condition of supervised release is 60 months’ imprisonment. 18 U.S.C.
§ 3583(e). Rhea’s guideline sentencing range is 6–12 months. See ROA, Vol. II, at
14; see also U.S.S.G. § 7B1.4(a) (U.S. Sentencing Comm’n 2016). Both the
government and the probation officer asked the court to sentence Rhea on the low-
end of the guideline range. Supp. ROA at 10–12. The district court decided to give
Rhea a “second chance,” id. at 13, and sentenced Rhea to six months, the bottom of
the guideline range, with credit for the three months already served.
Defendant discharged his remaining three months’ imprisonment and began a
new term of supervision on July 28, 2017. Ten days later, Oklahoma police arrested
Rhea for driving under the influence, transporting an open container of alcohol, and
3 failing to carry a current security verification form in his car. On August 11, 2017,
the probation officer filed a second petition to revoke Rhea’s supervision.
Before the second revocation hearing, Oklahoma dismissed all charges except
the open container charge. Rhea stipulated that he had consumed alcohol and that
there was an open container of alcohol in his car. The district court ruled that Rhea
“has shown little regard for the rules and conditions of supervised release” and
sentenced him to 36 months’ imprisonment. ROA, Vol. II, at 19.
II.
On appeal, Rhea challenges the substantive reasonableness of his 36-month
sentence. Aplt. Br. at 7. Reviewing for abuse of discretion, see United States v.
Haymond, 869 F.3d 1153, 1157 (10th Cir. 2017), we affirm.
“[T]he district court may impose any sentence within the statutory maximum,”
United States v. Vigil, 696 F.3d 997, 1002 (10th Cir. 2012), provided the sentence is
not “arbitrary, capricious, whimsical, or manifestly unreasonable,” United States v.
Steele, 603 F.3d 803, 809 (10th Cir. 2010). And since the “sentencing judge is in a
superior position to find facts and judge their import,” an appellate court gives “due
deference to the district court’s decision” that a variance is justified. Gall v. United
States, 552 U.S. 38, 51 (2007) (quotations omitted); Cf. United States v. Jones, 678
F. App’x 626, 628–29 (10th Cir. 2017) (unpublished) (applying Gall to sentences
imposed for revocation of supervised release).
The district court’s conclusion that Rhea’s conduct merited an upward
variance is substantively reasonable. The 36-month sentence, while above the
4 guideline range, was well within the statutory maximum of 60 months. See 18
U.S.C. § 3583(e). The court justified the sentence by consulting the proper § 3553(a)
factors. As to the first § 3553(a) factor, the history and characteristics of the
defendant, the court noted that Rhea has repeatedly violated his supervised release
conditions. The court emphasized that Rhea’s latest arrest was in “close proximity”
to the previous revocation hearing. ROA, Vol. II, at 18. The court also explained, in
reference to § 3553(a)(2)(B), that an upward variance was necessary to provide “an
adequate deterrent” to future violations of supervised release conditions. Id. at 19.
We conclude that the district court identified “sufficiently compelling” justifications
for an upward variance. Gall, 552 U.S. at 50. Therefore, Rhea’s sentence was not an
abuse of discretion.
Indeed, Rhea’s sentence is quite similar to the revocation sentence we affirmed
in Jones. Jones violated a condition of his first supervised release by using narcotics.
Jones, 678 F. App’x at 627. The court sentenced Jones to 12 months’ imprisonment,
followed by a four-year term of supervised release on the condition that he not
possess or use controlled substances. Id. After one year, Jones was released from
prison and began his second term of supervised release. Id. Eight days into his
supervision, Jones tested positive for illegal drugs. Id. The court sentenced him to
48 months’ imprisonment for violating the conditions of his supervised release, and
we affirmed that sentence as substantively reasonable. Id. at 628, 630. We conclude
that Rhea’s 36-month sentence for violating (in ten days) his second term of
5 supervised release is no more an abuse of discretion than was Jones’s 48-month
sentence for violating (in eight days) his second term of supervised release.
Rhea’s assertion that his sentence is incommensurate with his “one act” of
“drinking a beer and driving,” Aplt. Br. at 9, misconceives the offense that revocation
sentences punish. Disregarding the terms of supervised release is “a breach of trust”
to be sanctioned separately from the underlying misconduct. United States v.
Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005); see also U.S.S.G. § 7A,
introductory cmt. (3)(b) (advising that revocation sentences should “sanction
primarily the defendant’s breach of trust, while taking into account, to a limited
degree, the seriousness of the underlying violation”). Here, it was not manifestly
unreasonable for the district court to conclude that Rhea’s decision to violate the
conditions of his second supervised release just ten days after release is a substantial
breach of trust warranting an upward variance.
III.
We conclude that the district court’s sentencing decision was substantively
reasonable and AFFIRM Rhea’s sentence.
Entered for the Court
Allison H. Eid Circuit Judge