United States v. Royer

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 6, 2022
• Docket: 22-5010
• Status: Unpublished

Opinion

Appellate Case: 22-5010 Document: 010110749698 Date Filed: 10/06/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 6, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-5010 (D.C. No. 4:19-CR-00065-GKF-1) ERIC EUGENE ROYER, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, BALDOCK and CARSON, Circuit Judges. _________________________________

Eric Eugene Royer appeals from the district court’s judgment revoking his

supervised release and imposing a ten-month sentence of imprisonment and a

twenty-six-month term of supervised release. He argues the court erred by not

granting a continuance of his revocation hearing and by imposing a substantively

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

28 U.S.C. § 1291, we affirm.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-5010 Document: 010110749698 Date Filed: 10/06/2022 Page: 2

I.

In 2019, Mr. Royer stopped his truck, blocked traffic, and began yelling at

other cars that drove around his truck. He pulled a handgun from his pocket and

pointed it at one car. After that car drove around him, Mr. Royer got back in his

truck and began pursuing the car. One of the car’s occupants called the sheriff’s

office. Deputies stopped Mr. Royer’s truck at gunpoint, seized a loaded handgun

from his pocket, and arrested him. Mr. Royer pleaded guilty in federal court to one

count of possession of a firearm and ammunition by a felon. See 18 U.S.C.

§ 922(g)(1). The court sentenced him to 30 months of imprisonment and two years

of supervised release.

In February 2021, Mr. Royer was released from prison and began serving his

term of supervised release. Later that year, the United States filed in the district

court a Petition for Warrant for Offender Under Supervision alleging the following.

In May 2021, Mr. Royer tested positive for methamphetamine and later admitted to

his probation officer that he had used methamphetamine. Also in May, he was

arrested in Arkansas and served a two-month sentence for failure to appear. Before

and after his Arkansas incarceration, he repeatedly failed to submit to required drug

testing. Beginning in August 2021, Mr. Royer stopped submitting monthly reports,

which the probation office uses to track changes in contact information and

employment, and as of September 30, he had stopped making required daily calls to

the drug testing hotline. On October 26, 2021, the probation officer went to the

motel where Mr. Royer was living because she had been unable to contact or locate

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him since October 14. Mr. Royer was not there, and the hotel manager told her he

had not seen Mr. Royer for several days. The officer asked the manager to have

Mr. Royer call her immediately, and she left a card in the keycard slot of the motel

room instructing Mr. Royer to call her. Mr. Royer never did so. The probation

officer contacted Mr. Royer’s mother on November 1 and 9. Mr. Royer’s mother

said that on October 29, he had called her from a borrowed phone to ask for money

but she had not been able to reach him since.

Based on these allegations, the petition asserted Mr. Royer had committed

three Grade C violations of supervised release: (1) failing to submit monthly written

reports to his probation officer and to contact his probation officer as directed;

(2) failing to abide by the policies and procedures of his drug testing program; and

(3) testing positive for methamphetamine and admitting to using it.

Prior to his revocation hearing, Mr. Royer filed a motion for a downward

variance from the sentencing range for his violations set out in the United States

Sentencing Guidelines Manual, which was six to twelve months in prison, see USSG

§ 7B1.4(a) and (b)(3). He said he would stipulate to the alleged violations and ask

the district court for a sentence that would place him in a halfway house in Tulsa.

But at the revocation hearing, when the district court asked Mr. Royer if he had failed

to submit required monthly reports for August through November 2021, he stated he

knew of only one such failure. The court then asked the government to call

Mr. Royer’s probation officer to testify.

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The probation officer testified that Mr. Royer initially submitted monthly

reports through May 2021, but after release from his Arkansas confinement, he did

not submit monthly reports for August through November 2021. In October she had

given him a report and asked him to submit it, but he never did. The officer also

testified that in May 2021, Mr. Royer had tested positive for and admitted to using

methamphetamine, and that he had missed thirteen drug tests.

Before cross-examining the officer, defense counsel asked for a continuance

because the matter had become contested. The court agreed the matter was now

contested but denied a continuance because the court was down one judge, each

judge’s docket had recently increased 350%, and the court was falling behind in its

criminal docket by twelve to fifteen cases per month.

With the motion denied, defense counsel then cross-examined the probation

officer about the monthly reports. She testified that she sometimes met with

Mr. Royer at his motel, and although it was possible he completed report forms she

gave him, she never received reports for August through November, and it was not

possible those reports were lost or misplaced. She also agreed that Mr. Royer was

arrested at the residence he had listed with the probation office.

After cross-examination of the probation officer, Mr. Royer testified. As to

the monthly reports for August through November 2021, he said that, except for one

month when he was recovering from surgery, his probation officer brought the report

to him at the motel where he was living, he would complete it, and she would take it

with her. He admitted he had used methamphetamine and tested positive for it. And

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he contended he had been drug-tested eight times per month and had never changed

his address.

The district court found Mr. Royer had admitted to violating a condition of

supervised release prohibiting the use of drugs and that the probation officer’s

testimony about the monthly-report and drug-testing violations was credible. After

some discussion about the viability of sentencing Mr. Royer to a halfway house or

transferring his supervision to New Mexico or Missouri, the district court denied his

motion for a variance, finding there were “no factors present . . . that separate this

defendant from the mine run of similarly situated defendants,” R., Vol. II at 40. The

court then sentenced him to ten months of imprisonment followed by twenty-six

months of supervised release. Mr. Royer appeals.

II.

Mr. Royer first contends the district court erred in denying his motion for a

continuance. Our review is for an abuse of discretion, and we “will only find error if

the district court’s decision was arbitrary or unreasonable and materially prejudiced

the defendant.” United States v. McClaflin, 939 F.3d 1113, 1117 (10th Cir. 2019)

(internal quotation marks omitted). To that end, we examine four factors in light of

“the individual circumstances of the case”: “(1) the diligence of the party seeking the

continuance; (2) the likelihood the continuance, if granted, would have accomplished

the stated purpose; (3) the inconvenience to the opposing party, witnesses, and the

court; and (4) the need for the continuance and any harm resulting from its denial.”

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Id. (internal quotation marks omitted). In this review, “[t]he final factor is the most

important.” Id. (internal quotation marks omitted).

Mr. Royer satisfies none of these factors. Regarding the first, he argues he

was diligent in requesting the continuance because the need for one arose only when

the probation officer testified about the monthly reports. But that situation was of his

own making. Mr. Royer had six weeks between his initial appearance and the

revocation hearing to review the allegations and contest them, but he instead led the

court and the government to believe he would stipulate to all of the alleged

violations. As to the third factor, a continuance clearly would have inconvenienced

not only the district court, whose docket was overloaded, but also government

counsel and the probation officer, each of whom would have had to make another

court appearance.

Regarding the second and fourth factors, Mr. Royer contends a continuance

would have allowed his attorney to gather exhibits and prepare defense witnesses

regarding his failure to submit monthly reports. But he fails to identify any such

evidence, positing only that his attorney “may have been able to provide

documentary evidence of his residence” or “narrow down time lines.” Aplt. Opening

Br. at 13. Moreover, although Mr. Royer maintained he was compliant with his drug

testing, he acknowledged he failed to submit at least one monthly report and he

admitted the third violation (use of methamphetamine). Each of those admitted

violations would have independently supported a Grade C violation. We therefore

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conclude he has not shown that a continuance would have accomplished his stated

purpose or that the denial of a continuance prejudiced him.

For these reasons, we hold that the district court did not abuse its discretion in

denying Mr. Royer’s motion for a continuance.

III.

Mr. Royer next contests the substantive reasonableness of his sentence. Our

review is for an abuse of discretion. United States v. McBride, 633 F.3d 1229, 1232

(10th Cir. 2011). The parties agree that the district court’s sentence was within the

advisory Guidelines range, so the sentence is presumptively reasonable. See id.

at 1232–33. But Mr. Royer may rebut the presumption “by demonstrating that the

sentence is unreasonable in light of the other sentencing factors laid out in 18 U.S.C.

§ 3553(a).” McBride, 633 F.3d at 1233 (brackets and internal quotation marks

omitted).

Mr. Royer argues it was substantively unreasonable to sentence him to

imprisonment rather than a halfway house. He posits that because he had no ties to

Oklahoma, a halfway house would have provided more structure than living in a

hotel, thereby assuaging the district court’s concern about his failure to keep his

probation officer informed of his address. He also contends that halfway-house

placement would have been most effective with respect to one of the § 3553

factors—“provid[ing] the defendant with needed educational or vocational training,

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

§ 3553(a)(2)(D).

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These arguments fail to rebut the presumption of substantive reasonableness.

The district court was aware of the factual underpinnings of Mr. Royer’s arguments

and his lack of ties to Oklahoma but rejected the idea of sentencing him to a halfway

house in Tulsa, finding he had “exhibit[ed] a pattern of noncompliance” and that a

within-Guidelines sentence would be “an adequate deterrent” to Mr. Royer and

others, “promote respect for the law, provide just punishment for the offense, and

provide protection for the public.” R., Vol. II at 41. Implicit in the district court’s

finding is that Mr. Royer’s pattern of noncompliance would likely continue at a

halfway house and placement in one would not be the most effective means of

preventing drug use or failures to report for drug tests or submit monthly reports.

We likewise reject Mr. Royer’s argument that the twenty-six-month term of

supervised release is substantively unreasonable. In support, he points out that his

violations were Class C violations, which is the lowest grade, see USSG § 7B1.1(a).

He adds that he thought he had complied with the reporting requirements, he had

only one positive drug test, and he had surgery in the fall of 2021 that affected his

probation officer’s ability to contact him in late October 2021 and his ability to meet

his drug-reporting requirements. And he observes that the second term of supervised

release is two months longer than his first term. But the district court clearly

disagreed with Mr. Royer’s view of the seriousness of his violations and rejected his

attempt to excuse his reporting requirements. We cannot say the district court abused

its discretion in that regard. And any limitations related to his fall 2021 surgery do

not account for violations that occurred prior to the surgery. Nor was the second

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term of supervised release substantively unreasonable simply because it was two

months longer than the first. Given the ten-month prison sentence, the district court

was permitted by statute to impose up to a twenty-six-month term of supervised

release.1 And the twenty-six-month term also fell within the Guidelines range for the

term of supervised release for his original offense, which was one to three years, see

USSG § 5D1.2(a)(2). This sentence was substantively reasonable given the pattern

of Mr. Royer’s noncompliance and the presumptive reasonableness of a

within-Guidelines sentence, which Mr. Royer has failed to rebut.

IV.

We affirm the district court’s judgment.

Entered for the Court

Joel M. Carson III Circuit Judge

1 When supervised release is revoked and an individual is sentenced to prison time, a court can include a term of supervised release after the imprisonment. See 18 U.S.C. § 3583(h). Such a term of supervised release cannot exceed the supervised release term authorized by the statute for the original offense less any term of imprisonment imposed upon revocation. Id. Mr. Royer’s original offense, charged under 18 U.S.C. § 922(g)(1), was a Class C felony because the maximum term of imprisonment was ten years. See 18 U.S.C. § 924(a)(2) (2019) (setting a ten-year maximum term of imprisonment for § 922(g)(1) offense); id. § 3559(a)(3) (classifying an offense as a Class C felony “if the maximum term of imprisonment authorized is . . . less than twenty-five years but ten or more years”). And the maximum term of supervised release for a Class C felony offense is three years. § 3583(b)(2). Thus, under § 3583(h) and the ten months of prison time the district court gave, the court could impose up to twenty-six months of supervised release.