Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 7, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-1065 (D.C. No. 1:14-CR-00099-CMA-1) JEREMY STAN, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, EBEL, and CARSON, Circuit Judges. ** _________________________________
Defendant Jeremy Stan served two years of his six-year term of supervised
release before violating his conditions. A district court then sentenced him to prison
followed by another six years of supervised release. Almost three years into his
second supervised-release term, Defendant violated his conditions, and the district
court again revoked his supervised release. For the third time, the district court
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** 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. Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 2
sentenced Defendant to prison followed by six years of supervised release, leading to
this appeal.
On appeal, Defendant argues that the district court imposed a substantively
unreasonable sentence. To be sure, the district court did not take Defendant’s
violations lightly—underscoring that its sentence would promote respect for the law
and protect the public given Defendant’s “constant dishonesty, manipulation, and
continued violations of the law.” And Defendant has indeed had difficulty under
supervision. But his underlying crime carried the possibility of a lifetime supervised-
release term. Thus, the district court correctly followed the statute and acted within
its discretion in imposing its sentence.
I.
After pleading guilty to possession of child pornography in 2008, the United
States District Court for the Western District of Missouri sentenced Defendant to
seventy-two months’ imprisonment followed by six years of supervised release.
Almost one year into his first supervised-release term, Defendant transferred his
supervision to the District of Colorado. Fourteen months later, law enforcement
arrested Defendant for violating the terms of his supervised release by assaulting a
peace officer, eluding, and driving under the influence. Defendant also violated his
sex-offender-treatment program’s rules, resulting in his discharge before successful
completion. The district court revoked Defendant’s supervised release and sentenced
him to two years in prison consecutive to his state court sentence in Douglas County,
Colorado. The district court imposed six years of supervised release to follow.
2 Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 3
Defendant’s second supervised-release term began in 2017. Almost two and a
half years later, Defendant pleaded guilty to driving under restraint. Three months
after that, law enforcement arrested him for driving under the influence, driving
under restraint, failing to present proof of insurance, and driving carelessly.
Moreover, a different sex-offender-treatment program discharged Defendant for
violating his treatment contract. When his probation officer filed the petition to
revoke supervised release, she listed twelve violations, including engaging in an
unapproved relationship and contact with minors, failing to disclose his alcohol
consumption and DUI arrest, failing to follow his probation officer’s instructions,
and making false statements to his probation officer. Defendant admitted to eleven
of the violations.
At the revocation hearing, Defendant requested that the district court not
impose any new supervision. Defendant stressed that he had been in sex-offender
treatment for five years and had attended many treatment sessions. He contended
that, for much of his time on supervised release, he participated positively in sex-
offender treatment. Defendant argued that he needed no additional supervision
because he had shown no proclivity toward sex offenses since he committed the
underlying sex offense in 2003 and the supervised-release conditions hindered his
ability to obtain alcohol treatment. Defendant also posited that because his sex
offense authorized a lifetime supervised-release term, “no matter how much time
[Defendant] spends on supervision . . . it is never able to be reduced.”
3 Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 4
When sentencing Defendant, the district court expressed concern about his
repeated violations, observing Defendant’s “constant dishonesty, manipulation, and
continued violations of the law.” To the district court, this reflected Defendant’s
general unwillingness to comply with his supervised-release terms. The court said
that Defendant’s actions “reinforce[d] the need for a second punitive sanction to
impress upon [Defendant] the importance of complying with supervised release and
ensuring the safety of the community when he is released from prison.” The district
court revoked Defendant’s supervised release and sentenced him to twenty-four
months’ imprisonment, consecutive to any state sentence, followed by six years’
supervised release. It reimposed the conditions relating to Defendant’s sex-offender
status because his underlying conviction was a sex offense and he previously failed
to comply with those conditions. Defendant’s secret-keeping from his probation
officer and “the fact that he kept a second telephone when he knew he wasn’t
supposed to have one that he never cleared with the probation office” alarmed the
district court. The court highlighted Defendant’s lies to his probation officer, his
failures to report to sex-offender treatment, and his failure to disclose that he was in a
relationship with a woman with two minor children. The district court stressed that
Defendant never completed sex-offender treatment and expressed concern “about the
danger that [Defendant] could pose to young children because of his secretiveness, . .
. his manipulation, [and] his attempt to get others to conspire in his lies.” Because of
Defendant’s secretiveness, the district court doubted that his only problem was
alcohol.
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On appeal, Defendant challenges the substantive reasonableness of his six-year
term of supervised release. Defendant posits that the district court failed to
adequately weigh the mitigating arguments his counsel made: (1) Defendant’s
primary issues on supervised release stem from alcoholism for which the sex-
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Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 7, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-1065 (D.C. No. 1:14-CR-00099-CMA-1) JEREMY STAN, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, EBEL, and CARSON, Circuit Judges. ** _________________________________
Defendant Jeremy Stan served two years of his six-year term of supervised
release before violating his conditions. A district court then sentenced him to prison
followed by another six years of supervised release. Almost three years into his
second supervised-release term, Defendant violated his conditions, and the district
court again revoked his supervised release. For the third time, the district court
* 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. ** 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. Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 2
sentenced Defendant to prison followed by six years of supervised release, leading to
this appeal.
On appeal, Defendant argues that the district court imposed a substantively
unreasonable sentence. To be sure, the district court did not take Defendant’s
violations lightly—underscoring that its sentence would promote respect for the law
and protect the public given Defendant’s “constant dishonesty, manipulation, and
continued violations of the law.” And Defendant has indeed had difficulty under
supervision. But his underlying crime carried the possibility of a lifetime supervised-
release term. Thus, the district court correctly followed the statute and acted within
its discretion in imposing its sentence.
I.
After pleading guilty to possession of child pornography in 2008, the United
States District Court for the Western District of Missouri sentenced Defendant to
seventy-two months’ imprisonment followed by six years of supervised release.
Almost one year into his first supervised-release term, Defendant transferred his
supervision to the District of Colorado. Fourteen months later, law enforcement
arrested Defendant for violating the terms of his supervised release by assaulting a
peace officer, eluding, and driving under the influence. Defendant also violated his
sex-offender-treatment program’s rules, resulting in his discharge before successful
completion. The district court revoked Defendant’s supervised release and sentenced
him to two years in prison consecutive to his state court sentence in Douglas County,
Colorado. The district court imposed six years of supervised release to follow.
2 Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 3
Defendant’s second supervised-release term began in 2017. Almost two and a
half years later, Defendant pleaded guilty to driving under restraint. Three months
after that, law enforcement arrested him for driving under the influence, driving
under restraint, failing to present proof of insurance, and driving carelessly.
Moreover, a different sex-offender-treatment program discharged Defendant for
violating his treatment contract. When his probation officer filed the petition to
revoke supervised release, she listed twelve violations, including engaging in an
unapproved relationship and contact with minors, failing to disclose his alcohol
consumption and DUI arrest, failing to follow his probation officer’s instructions,
and making false statements to his probation officer. Defendant admitted to eleven
of the violations.
At the revocation hearing, Defendant requested that the district court not
impose any new supervision. Defendant stressed that he had been in sex-offender
treatment for five years and had attended many treatment sessions. He contended
that, for much of his time on supervised release, he participated positively in sex-
offender treatment. Defendant argued that he needed no additional supervision
because he had shown no proclivity toward sex offenses since he committed the
underlying sex offense in 2003 and the supervised-release conditions hindered his
ability to obtain alcohol treatment. Defendant also posited that because his sex
offense authorized a lifetime supervised-release term, “no matter how much time
[Defendant] spends on supervision . . . it is never able to be reduced.”
3 Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 4
When sentencing Defendant, the district court expressed concern about his
repeated violations, observing Defendant’s “constant dishonesty, manipulation, and
continued violations of the law.” To the district court, this reflected Defendant’s
general unwillingness to comply with his supervised-release terms. The court said
that Defendant’s actions “reinforce[d] the need for a second punitive sanction to
impress upon [Defendant] the importance of complying with supervised release and
ensuring the safety of the community when he is released from prison.” The district
court revoked Defendant’s supervised release and sentenced him to twenty-four
months’ imprisonment, consecutive to any state sentence, followed by six years’
supervised release. It reimposed the conditions relating to Defendant’s sex-offender
status because his underlying conviction was a sex offense and he previously failed
to comply with those conditions. Defendant’s secret-keeping from his probation
officer and “the fact that he kept a second telephone when he knew he wasn’t
supposed to have one that he never cleared with the probation office” alarmed the
district court. The court highlighted Defendant’s lies to his probation officer, his
failures to report to sex-offender treatment, and his failure to disclose that he was in a
relationship with a woman with two minor children. The district court stressed that
Defendant never completed sex-offender treatment and expressed concern “about the
danger that [Defendant] could pose to young children because of his secretiveness, . .
. his manipulation, [and] his attempt to get others to conspire in his lies.” Because of
Defendant’s secretiveness, the district court doubted that his only problem was
alcohol.
4 Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 5
On appeal, Defendant challenges the substantive reasonableness of his six-year
term of supervised release. Defendant posits that the district court failed to
adequately weigh the mitigating arguments his counsel made: (1) Defendant’s
primary issues on supervised release stem from alcoholism for which the sex-
offender conditions hinder his ability to obtain treatment; and (2) Defendant had not
committed, or been inclined to commit, any sex offense since his underlying crime.
Defendant also argues that the district court inadequately weighed the progress he
made on supervision, his completion of five years’ supervised release, and his
potential to face a “revolving door” of supervised release and revocation for the rest
of his life.
II.
The district court must consider the sentencing factors Congress set out in
18 U.S.C. § 3553(a) before deciding to revoke a defendant’s supervised release and
before determining his sentence after revocation. United States v. McBride, 633 F.3d
1229, 1231 (10th Cir. 2011) (citations omitted). We defer to the district court’s
application of the § 3553(a) factors and “will not reverse a revocation sentence,” if
we can determine from the record that the sentence is “reasoned and reasonable.” Id.
at 1232 (quoting United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir.
2005)). A “reasoned” sentence is “procedurally reasonable,” and a “reasonable”
sentence is “substantively reasonable.” Id. “To say that the district court acted
reasonably—either procedurally or substantively—is to say that it did not abuse its
discretion.” Id. (citing United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214
5 Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 6
(10th Cir. 2008)). On appeal, Defendant challenges his sentence’s substantive
reasonableness.
Under the substantive-reasonableness standard, a district court abuses its
discretion “when it renders a judgment that is arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir.
2010) (quoting United States v. Munoz–Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)).
Such deferential review makes sense. “The sentencing judge is in a superior position
to find facts and judge their import under § 3553(a) . . . .” Gall v. United States, 552
U.S. 38, 51 (2007). The facts and law often support a range of possible outcomes.
United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). So long as the
imposed sentence “falls within the realm of these rationally available choices,” we
defer to the district court. Id. Moreover, “a sentence that is properly calculated
under the Guidelines is entitled to a rebuttable presumption of reasonableness.”
United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
Stan has not rebutted this presumption by showing that his sentence is
unreasonable when viewed against the § 3553(a) factors. See United States v.
Richards, 958 F.3d 961, 969 (10th Cir. 2020) (citing United States v. Craig, 808 F.3d
1249, 1261 (10th Cir. 2015)) (“Defendant may rebut this presumption by
demonstrating the sentence is unreasonable when viewed against the factors
described in § 3553(a).”). Indeed, the district court’s sentence falls within the realm
of rationally available choices. The district court expressly considered the § 3553(a)
factors. It based its sentence on the nature and circumstances of the offense and the
6 Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 7
history and characteristics of the defendant—reasoning that the imposed conditions
did not deprive Defendant of greater liberty than reasonably necessary to accomplish
the goals of sentencing.
After the district court sentenced Defendant, Defendant’s attorney asked the
court to clarify why sex-offender treatment was necessary. The district court
expressed concern about Defendant’s secret-keeping, such as keeping a second
telephone without authorization. Defendant lied about his employment. He failed to
report to the probation office or to sex-offender treatment and failed to disclose his
relationship with a woman who had minor children. The record shows that
Defendant produced deceptive polygraph results when asked if he engaged in sexual
behaviors, exchanged nude photos, or communicated sexually with anyone on an
electronic device. Polygraph results also indicated that he lied about consuming
prohibited substances, viewing sexually explicit materials, and secretly spending time
alone with a minor. The record reveals that Defendant told a therapist that he did not
need sex-offender treatment because “he only looked at child pornography.” During
his first supervised-release term, Defendant hid that his girlfriend had an eight-year-
old son with whom he spent time alone. And he never completed sex-offender
treatment, though his underlying conviction was for a sex crime. As a result, the
district court informed Defendant that it was “very concerned about the danger that
he could pose to young children because of his secretiveness, with his manipulation,
[and] his attempt to get others to conspire in his lies.” Thus, the district court
7 Appellate Case: 21-1065 Document: 010110653233 Date Filed: 03/07/2022 Page: 8
appropriately exercised its discretion to impose special supervised-release conditions
involving sex-offender treatment.
Despite its thorough and well-reasoned application of the § 3553(a) factors to
the facts, Defendant asserts that the district court failed to meaningfully consider his
longstanding alcoholism and lack of recidivism. We disagree. The district court
considered Defendant’s need for alcohol treatment and included conditions designed
to address his alcoholism—requiring that he participate in a substance-abuse
program, abstain from alcohol and intoxicants, not enter a business selling principally
alcohol, and participate in a mental-health-treatment program. Though Defendant
complains he cannot get treatment for alcoholism because of his sex-offender
conditions, he completed seventy-three out of eighty-three substance-abuse-treatment
sessions during his second supervised-release term—even if Defendant does not
consider this meaningful treatment. And while no evidence reveals that Defendant
committed any subsequent sex offense, he never completed sex-offender treatment or
complied with the conditions of his release related to his sex-offender status.
Next, Defendant complains that when imposing the six-year supervision term,
the district court failed to consider that later courts could sentence him indefinitely
for conduct unrelated to his original offense. But the district court acted within its
discretion in imposing six more years of supervised release. It noted Defendant’s
failure to comply with his supervised-release conditions—alcohol and sex-offender
treatment. And as the district court said, had Defendant complied, he would be free
of the court by now. Defendant must learn to follow the rules. United States v.
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DeMarrias, 895 F.3d 570, 575 (8th Cir. 2018) (affirming reasonableness of
supervised-release-violation sentence when the defendant repeatedly violated and
admitted that he was unlikely to comply with any supervised-release program).
AFFIRMED.
Entered for the Court
Joel M. Carson III Circuit Judge