Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 7, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-6214 (D.C. No. 5:06-CR-00212-F-1) DEWAYNE ANTWON THOMPSON, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Defendant Dewayne Antwon Thompson appeals the revocation sentence
imposed by the district court for Thompson violating the terms of his supervised
release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Thompson’s
revocation sentence.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 2
I
In 2007, Thompson pleaded guilty to one count of knowingly and intentionally
distributing five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
and was sentenced to a term of imprisonment of 135 months, to be followed by a
five-year term of supervised release. Following two sentence modifications,
Thompson was released from prison and began his first term of supervised release on
January 20, 2012. Thompson’s first term of supervised release was revoked on May
7, 2014, and he was sentenced to a term of imprisonment of twenty-four months, to
be followed by a sixty-month term of supervised release.
In October 2023, while Thompson was on supervised release, his probation
officer filed a petition with the district court alleging that Thompson had committed
four violations of the mandatory conditions of his supervised release. The district
court held a revocation hearing on December 12, 2023. At the outset of the hearing,
Thompson’s counsel admitted two of the violations: (1) that Thompson submitted a
urine specimen in November 2022 that tested positive for cocaine and subsequently
admitted to his probation officer that he smoked a cigarette that contained cocaine;
and (2) that Thompson submitted diluted urine specimens on three occasions in June
and July 2022. The government then presented three witnesses in support of the
remaining two alleged violations. At the conclusion of the testimony, the district
court found that Thompson had violated the terms of his supervised release by
possessing and brandishing a firearm during a domestic violence incident. The
district court then sentenced Thompson to a term of imprisonment of
2 Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 3
thirty-six months, to be followed by a five-year term of supervised release. In doing
so, the district court stated on the record “that a guideline sentence is not sufficient
. . . to satisfy the statutory objectives of sentencing.” R., Vol. 3 at 62. The district
court noted, in particular, that Thompson’s possession and brandishing of a firearm
during a domestic violence incident was “a matter of serious concern from the
standpoint of the need to protect the public and on the basis of the seriousness of the
nature and circumstances of the offense.” Id. at 61–62.
Thompson now appeals the revocation sentence.
II
Thompson argues that the revocation sentence imposed by the district court
was not substantively reasonable. Thompson notes in support that the
thirty-six month term of imprisonment “was double the top end of the recommended
guideline range of 12 to 18 months.” Aplt. Br. at 6. He argues that “[t]here was
insufficient cause to issue an upward variance,” and “[t]he district court ignored
and/or devalued significant mitigating factors,” including the fact that he “had a
tough life,” was holding a job on supervised release, was “in a very complicated
personal relationship with the victim” of the domestic violence incident, and “was
heavily intoxicated” at the time of that incident. Id. at 6, 9–10.
“We review the substantive reasonableness of a sentence for abuse of
discretion.” United States v. Kaspereit, 994 F.3d 1202, 1207 (10th Cir. 2021).
Under this standard of review, we give “substantial deference to the district court’s
determination” and will “overturn [the] sentence as substantively unreasonable only
3 Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 4
if it is arbitrary, capricious, whimsical, or manifestly unjust.” Id. Further, where, as
here, the district court imposes an above-Guidelines sentence, we “must consider the
extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.” United States v. Peña, 963 F.3d 1016, 1029
(10th Cir. 2020 (internal quotation marks omitted).
In announcing its sentence, the district court stated that it had considered
Thompson’s “history and characteristics.” R., Vol. 3 at 61. The district court
acknowledged that “it may well be that [Thompson] was doing well on supervision,”
noting that “[h]is record was not spotless.” Id. The district court concluded,
however, that Thompson’s general record on supervision “d[id] not detract from . . .
the danger” his conduct during the domestic violence incident posed “to the public”
and “to people within his circle of family members and acquaintances and
neighbors.” Id. Specifically, the district court noted that Thompson’s “proclivity to
get vocal and violent and make threats and brandish a gun” was “a matter of serious
concern.” Id. The district court also noted that this serious misconduct occurred
“against the backdrop of” Thompson’s criminal history of “dealing crack.” Id. at 62.
The district court stated:
I have no reason to believe that he returned to that way of life after he was released, but the fact that we had an individual convicted of that serious crime, originally sentenced to 135 months of incarceration, which was amended to 108 months and then was amended to time served, and then had a revocation sentence of 24 months, gives me serious concern as to the prospects for Mr. Thompson redirecting his life in a productive and constructive and law-abiding direction.
4 Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 5
Id. Ultimately, the district court “conclude[d] that a guideline sentence [wa]s not
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Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 7, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-6214 (D.C. No. 5:06-CR-00212-F-1) DEWAYNE ANTWON THOMPSON, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Defendant Dewayne Antwon Thompson appeals the revocation sentence
imposed by the district court for Thompson violating the terms of his supervised
release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Thompson’s
revocation sentence.
* 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. Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 2
I
In 2007, Thompson pleaded guilty to one count of knowingly and intentionally
distributing five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
and was sentenced to a term of imprisonment of 135 months, to be followed by a
five-year term of supervised release. Following two sentence modifications,
Thompson was released from prison and began his first term of supervised release on
January 20, 2012. Thompson’s first term of supervised release was revoked on May
7, 2014, and he was sentenced to a term of imprisonment of twenty-four months, to
be followed by a sixty-month term of supervised release.
In October 2023, while Thompson was on supervised release, his probation
officer filed a petition with the district court alleging that Thompson had committed
four violations of the mandatory conditions of his supervised release. The district
court held a revocation hearing on December 12, 2023. At the outset of the hearing,
Thompson’s counsel admitted two of the violations: (1) that Thompson submitted a
urine specimen in November 2022 that tested positive for cocaine and subsequently
admitted to his probation officer that he smoked a cigarette that contained cocaine;
and (2) that Thompson submitted diluted urine specimens on three occasions in June
and July 2022. The government then presented three witnesses in support of the
remaining two alleged violations. At the conclusion of the testimony, the district
court found that Thompson had violated the terms of his supervised release by
possessing and brandishing a firearm during a domestic violence incident. The
district court then sentenced Thompson to a term of imprisonment of
2 Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 3
thirty-six months, to be followed by a five-year term of supervised release. In doing
so, the district court stated on the record “that a guideline sentence is not sufficient
. . . to satisfy the statutory objectives of sentencing.” R., Vol. 3 at 62. The district
court noted, in particular, that Thompson’s possession and brandishing of a firearm
during a domestic violence incident was “a matter of serious concern from the
standpoint of the need to protect the public and on the basis of the seriousness of the
nature and circumstances of the offense.” Id. at 61–62.
Thompson now appeals the revocation sentence.
II
Thompson argues that the revocation sentence imposed by the district court
was not substantively reasonable. Thompson notes in support that the
thirty-six month term of imprisonment “was double the top end of the recommended
guideline range of 12 to 18 months.” Aplt. Br. at 6. He argues that “[t]here was
insufficient cause to issue an upward variance,” and “[t]he district court ignored
and/or devalued significant mitigating factors,” including the fact that he “had a
tough life,” was holding a job on supervised release, was “in a very complicated
personal relationship with the victim” of the domestic violence incident, and “was
heavily intoxicated” at the time of that incident. Id. at 6, 9–10.
“We review the substantive reasonableness of a sentence for abuse of
discretion.” United States v. Kaspereit, 994 F.3d 1202, 1207 (10th Cir. 2021).
Under this standard of review, we give “substantial deference to the district court’s
determination” and will “overturn [the] sentence as substantively unreasonable only
3 Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 4
if it is arbitrary, capricious, whimsical, or manifestly unjust.” Id. Further, where, as
here, the district court imposes an above-Guidelines sentence, we “must consider the
extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.” United States v. Peña, 963 F.3d 1016, 1029
(10th Cir. 2020 (internal quotation marks omitted).
In announcing its sentence, the district court stated that it had considered
Thompson’s “history and characteristics.” R., Vol. 3 at 61. The district court
acknowledged that “it may well be that [Thompson] was doing well on supervision,”
noting that “[h]is record was not spotless.” Id. The district court concluded,
however, that Thompson’s general record on supervision “d[id] not detract from . . .
the danger” his conduct during the domestic violence incident posed “to the public”
and “to people within his circle of family members and acquaintances and
neighbors.” Id. Specifically, the district court noted that Thompson’s “proclivity to
get vocal and violent and make threats and brandish a gun” was “a matter of serious
concern.” Id. The district court also noted that this serious misconduct occurred
“against the backdrop of” Thompson’s criminal history of “dealing crack.” Id. at 62.
The district court stated:
I have no reason to believe that he returned to that way of life after he was released, but the fact that we had an individual convicted of that serious crime, originally sentenced to 135 months of incarceration, which was amended to 108 months and then was amended to time served, and then had a revocation sentence of 24 months, gives me serious concern as to the prospects for Mr. Thompson redirecting his life in a productive and constructive and law-abiding direction.
4 Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 5
Id. Ultimately, the district court “conclude[d] that a guideline sentence [wa]s not
sufficient” and that an above-guideline sentence of thirty-six months’ incarceration,
along with an additional term of supervised release of five years, was appropriate.
Id.
Based upon this record, we conclude the district court did not abuse its
discretion in imposing a sentence above the Guidelines sentencing range. The
reasons cited by the district court in support of the sentence imposed, which are
essentially undisputed, are, in our view, sufficiently compelling to support the length
of the selected sentence.
III
We AFFIRM the revocation sentence imposed by the district court.
Entered for the Court
Mary Beck Briscoe Circuit Judge