Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS June 12, 2026 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-2047 (D.C. No. 1:15-CR-00431-KWR-1) EMANUEL YAZZIE, (D.N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges. _________________________________
Emanuel Yazzie appeals the sentence imposed upon his fourth
revocation of supervised release. Exercising jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 2
I
A
In May 2016, Mr. Yazzie was convicted after pleading guilty to one
count of sexual abuse of a minor in Indian Country in violation of 18 U.S.C.
§ 2243(a). The district court sentenced him to thirty-six months’
imprisonment followed by ten years of supervised release. Mr. Yazzie was
released from prison in June 2018. Several months later, in January 2019,
the United States Probation Office petitioned the district court to revoke
his supervision. The petition alleged Mr. Yazzie violated the conditions of
his supervised release by using cocaine, having direct contact with his
victim, and using alcohol. Mr. Yazzie admitted to violating the release
conditions and, in April 2019, the district court revoked his supervision and
sentenced him to six months’ imprisonment followed by ten years of
supervised release.
Mr. Yazzie served his revocation sentence and resumed supervised
release. The Probation Office thereafter filed two reports alerting the
district court to additional violations: one in October 2019 and another in
February 2020. With respect to the October 2019 report, Mr. Yazzie
admitted using alcohol, Suboxone, and methamphetamine. The Probation
Office recommended the district court continue Mr. Yazzie’s supervised
release rather than revoke it. The district court agreed. With respect to the
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February 2020 report, Mr. Yazzie admitted to his probation officer that he
consumed alcohol. The Probation Office again recommended not revoking
his supervised release. And again, the district court agreed with this
recommendation.
Two months after the second report, in April 2020, the Probation
Office petitioned the district court to revoke Mr. Yazzie’s supervised
release. This second petition alleged four violations: three new criminal
charges—aggravated battery upon a healthcare worker, N.M. STAT. ANN.
§ 30-3-9.2; battery upon a peace officer, id. § 30-22-24; and assault upon a
healthcare worker, id. § 30-3-9.2(B)(1)—and an instance of alcohol use. Mr.
Yazzie admitted two of the new-crime violations and the use-of-alcohol
violation. In September 2020, the district court revoked his supervision and
imposed a ten-month prison sentence followed by nine years of supervised
release. Mr. Yazzie served his second revocation sentence and was released
in February 2021.
By March 2021, the Probation Office had filed a third revocation
petition. This petition alleged two violations of Mr. Yazzie’s supervised
release conditions: Mr. Yazzie possessed an unauthorized cell phone at his
Residential Reentry Center (RRC) and refused to provide the RRC staff with
the cell phone password. One month later, the Probation Office filed an
amended revocation petition to allege two more violations: Mr. Yazzie was
3 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 4
charged with disorderly conduct, N.M. STAT. ANN. § 30-20-1 1 and used
alcohol. Mr. Yazzie admitted to all but the new-crime violation. In June
2021, the district court again revoked his supervision and sentenced him to
thirteen months’ imprisonment followed by five years of supervised release.
Mr. Yazzie served the third revocation sentence and was ultimately
released in April 2022. 2
B
We now arrive at the facts underlying this appeal. One day after Mr.
Yazzie’s release from prison in April 2022, New Mexico State Police
responded to a domestic violence incident and encountered Mr. Yazzie, his
girlfriend, and a child. The officers noticed Mr. Yazzie smelled like alcohol.
Mr. Yazzie’s girlfriend told the officers that Mr. Yazzie had been drinking
1 The April 2021 amended revocation petition alleges Mr. Yazzie “was
charged with Drunk or Disorderly in violation of New Mexico Statute 125-1-6.” SRI.33. That statute, however, has nothing to do with drunk or disorderly conduct. We assume the state charged Mr. Yazzie under the disorderly conduct statute, N.M. STAT. ANN. § 30-20-1. But that discrepancy has no impact on the disposition in this appeal. 2 The Probation Office never learned of Mr. Yazzie’s release. Apparently
due to an administrative mishap, in November 2021 the Bureau of Prisons mistakenly released Mr. Yazzie from custody before he completed his third revocation sentence. Because he failed to report to the Residential Reentry Center (RRC) as scheduled, he was placed on “escape status.” RI.28. But roughly a week after his mistaken release, Mr. Yazzie “returned to BOP custody[.]” Ans. Br. at 4. He served the remainder of his third revocation sentence and was, as indicated, properly released in April 2022. The Probation Office knew none of this. Until January 2025, the Probation Office believed Mr. Yazzie was a fugitive on escape status. 4 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 5
and became upset when she asked to drive the vehicle. Mr. Yazzie allegedly
“punched the rear-view mirror of the car” and then held his girlfriend
against the seat by her throat for several seconds. Ans. Br. at 5. The officers
arrested Mr. Yazzie and charged him with battery against a household
member, N.M. STAT. ANN. § 30-3-15, and criminal damage to property of a
household member, id. § 30-3-18(A)–(B). Mr. Yazzie failed to appear in court
for these charges.
Just over a year later, in July 2023, the State of Arizona charged Mr.
Yazzie with failing to register as a sex offender in violation of ARIZ. REV.
STAT. ANN. § 13-3821(A). Mr. Yazzie pleaded guilty to this offense but then
failed to appear at his sentencing. Another year passed. In April 2024, Mr.
Yazzie was convicted in Phoenix Municipal Court of trespassing, id. § 13-
1502(A)(1), and shoplifting, id. § 13-1805. Mr. Yazzie received thirty-six
months of probation for these convictions.
In January 2025, the Probation Office petitioned the district court to
revoke Mr. Yazzie’s supervised release for the fourth time. This fourth
revocation petition alleged Mr. Yazzie (1) failed to report to the Probation
Office following his April 2022 release; (2) was charged on April 2, 2022
with battery against a household member and criminal damage to property
of a household member, N.M. STAT. ANN. §§ 30-3-15, 30-3-18(A)–(B); (3) was
convicted on April 28, 2024 of trespassing and shoplifting, ARIZ. REV. STAT.
5 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 6
ANN. §§ 13-1502(A)(1), 13-1805; and (4) was charged on July 7, 2023 and
subsequently convicted of failing to register as a sex offender, id. § 13-
3821(A).
In March 2025, Mr. Yazzie was arrested on the fourth revocation
petition in Phoenix, Arizona and transferred to the District of New Mexico
for revocation proceedings. Mr. Yazzie admitted the first, third, and fourth
violations alleged in the petition. In exchange, the government agreed to
dismiss the second alleged violation, which was based on the April 2022
charges in New Mexico for battery against a household member and
criminal damage to property of a household member. The district court
informed Mr. Yazzie of the possible penalties he faced before accepting his
admission to three of the four alleged violations.
The district court proceeded to sentencing. Under U.S.S.G. § 7B1.1,
Mr. Yazzie’s most serious violation was Grade B. See U.S.S.G. § 7B1.1(a)(2)
(2024) (stating a Grade B violation includes “conduct constituting any other
federal, state, or local offense punishable by a term of imprisonment
exceeding one year”). 3 And with his criminal history category of II, a Grade
3 We use the 2024 Guidelines because they were in effect at the time of
Mr. Yazzie’s revocation sentencing in March 2025. See United States v. Sullivan, 255 F.3d 1256, 1259 (10th Cir. 2001) (noting “a sentencing court must apply the guidelines in effect at the time of sentencing . . . unless such application would violate the ex post facto clause”); U.S.S.G. § 1B1.11(a) (“The 6 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 7
B violation established a revocation imprisonment range of six to twelve
months. See id. § 7B1.3(b) (“In the case of a revocation of probation or
supervised release, the applicable range of imprisonment is that set forth
in §7B1.4[.]”); id. § 7B1.4(a) (setting forth the revocation table). The
maximum statutory penalty, however, was twenty-four months followed by
life on supervised release. See 18 U.S.C. § 3583(e)(3) (stating that “a
defendant whose term is revoked under this paragraph may not be required
to serve on any such revocation . . . more than 2 years in prison if [the
original] offense is a class C or D felony”). 4
Mr. Yazzie requested a sentence at “the low end” of the six-to-twelve-
month range to facilitate his participation in a treatment program. RII.13.
Although he acknowledged this was the fourth revocation petition, defense
counsel urged the district court to consider Mr. Yazzie’s “circumstances,”
“interests,” and the fact that he “t[ook] responsibility[.]” RII.12–13. The
government suggested an eighteen-month prison sentence followed by five
years of supervised release. In the government’s view, it was time “to
court shall use the Guidelines Manual in effect on the date that the defendant is sentenced.”). 4 Recall, Mr. Yazzie was originally convicted of sexual abuse of a minor
in Indian Country, an offense punishable by imprisonment for “not more than 15 years[.]” 18 U.S.C. § 2243(a). A § 2243(a) violation therefore constitutes a Class C felony under federal law. See id. § 3559(a)(3) (stating an offense is a Class C felony if the maximum term of imprisonment is “less than twenty-five years but ten or more years”). 7 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 8
ratchet things up” because Mr. Yazzie “ha[d] shown no inclination or
proclivity to comply with any sort of supervised release conditions.” RII.16.
The government emphasized Mr. Yazzie “committed new crimes over and
over and over again” in the six years since his original sentencing. RII.15.
And because he was “getting terminated from residential reentry homes”
for failing to comply with “standard conditions,” the government believed
sending Mr. Yazzie to a treatment facility would not “be the panacea or the
cure-all[.]” RII.15–16.
The district court observed Mr. Yazzie had “not done well” on
supervised release “from the very beginning.” RII.16. Mr. Yazzie repeatedly
violated the conditions of his supervised release, the district court said,
despite the imposition of increasingly lengthier revocation sentences. See,
e.g., RII.17 (“And the Court imposed a heavier sentence trying to get your
attention and to protect the public[.] . . . That didn’t work.”). The district
court emphasized the previous thirteen-month revocation sentence, “which
was above the advisory guideline range, . . . did not deter” Mr. Yazzie.
RII.18. That Mr. Yazzie “violate[d] the law every chance that [he] ha[s] had”
demonstrated he is “a danger to the community, which certainly push[ed]
upward on what” the district court “consider[ed]” to be “an appropriate
sentence[.]” RII.18. At the same time, the district court recognized Mr.
8 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 9
Yazzie’s “substance abuse problem” and “need [for] treatment,” and said it
would “make sure” Mr. Yazzie received that treatment. RII.18.
The district court confirmed it “reviewed . . . the factors set forth in
18 U.S.C. § 3583(e)[.]” RII.19. “[I]n considering a sentence that [was]
sufficient but not greater than necessary to support the goals of
sentencing[,]” the district court did not believe “a guideline sentence [was]
appropriate for” Mr. Yazzie. RII.18. The district court explained:
You have been convicted [for] failing to register as a sex offender, trespassing and shoplifting, and you have displayed a pattern of egregious noncompliant conduct and a sentence above the guideline range is warranted, not only to promote respect for the law – I take that back. To promote deterrence by you, hopefully, and to protect the public from further crimes by you, but also while you’re in . . . custody, it will enable you to get the needed vocational and educational training that you need, including hopefully some treatment for substance abuse problems that you have.
RII.20. The district court sentenced Mr. Yazzie to eighteen months’
imprisonment followed by five years of supervised release.
This timely appeal followed.
II
“[W]e will not reverse a revocation sentence imposed by the district
court if it can be determined from the record to have been reasoned and
reasonable.” United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th
Cir. 2005) (internal quotation marks and brackets omitted). “[A] ‘reasoned’
9 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 10
sentence is one that is ‘procedurally reasonable’; and a ‘reasonable’ sentence
is one that is ‘substantively reasonable.’” United States v. McBride, 633 F.3d
1229, 1232 (10th Cir. 2011). Mr. Yazzie contends his revocation sentence is
both procedurally and substantively unreasonable. We address these
challenges in turn. See United States v. Maldonado-Passage, 56 F.4th 830,
841–42 (10th Cir. 2022) (“Review of sentencing reasonableness is a two-step
process: first, this court ensures the district court did not err procedurally
and, if not, analyzes the substantive reasonableness of the sentence.”).
Mr. Yazzie contends his revocation sentence is procedurally
unreasonable because the district court “improperly relied on retribution
and punishment factors for [his] . . . sentence.” Op. Br. at 5. Before
discussing the merits of this argument, we must first address preservation
and our standard of review.
“It is well-settled that our precedent imposes a ‘requirement of
contemporaneous objection to procedural errors[.]’” United States v. Rocha,
145 F.4th 1247, 1261 (10th Cir. 2025) (quoting United States v. Romero, 491
F.3d 1173, 1177 (10th Cir. 2007)). We review a preserved “claim of
procedural unreasonableness for abuse of discretion, ‘under which we
review de novo the district court’s legal conclusions regarding the
10 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 11
[G]uidelines and review its factual findings for clear error.’” United States
v. Ortiz-Lazaro, 884 F.3d 1259, 1262 (10th Cir. 2018) (quoting United States
v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012)). But “objections that a party
fails to raise before the district court are forfeited and, ordinarily, only may
be reviewed for plain error.” Rocha, 145 F.4th at 1261.
The government says Mr. Yazzie forfeited his procedural
reasonableness challenge because he “did not object to the district court’s
justification for his revocation sentence[.]” Ans. Br. at 10. And because Mr.
Yazzie did not request plain-error review in his opening brief, the
government contends his procedural reasonableness challenge is now
waived. See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019)
(“When an appellant fails to preserve an issue and also fails to make a plain-
error argument on appeal, we ordinarily deem the issue waived (rather than
merely forfeited) and decline to review the issue at all—for plain error or
otherwise.”). The government says we should “decline” to review Mr.
Yazzie’s procedural reasonableness argument “[t]o the extent [he] attempts
to” argue plain error in his reply brief. Ans. Br. at 11–12. This is an
appropriate approach, the government argues, “particularly where the lack
of preservation is so obvious that [Mr.] Yazzie cannot have simply
overlooked it.” Ans. Br. at 12.
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We conclude plain-error review applies. Mr. Yazzie concedes he did
not object to the district court’s purported consideration of § 3553(a)(2)(A)’s
retributive factors. And, as the government correctly points out, he failed to
argue for plain-error review in his opening brief. But “we have left open the
door for a criminal defendant to argue error in an opening brief and then
allege plain error in a reply brief after the Government asserts waiver.”
Leffler, 942 F.3d at 1198. Mr. Yazzie comprehensively addresses the plain
error standard in his reply brief. That “is sufficient to permit us to consider
[his procedural reasonableness challenge] under plain error review.” United
States v. Chavez-Morales, 894 F.3d 1206, 1214 (10th Cir. 2018).
“Plain-error review requires Mr. [Yazzie] to ‘establish that (1) the
district court committed error; (2) the error was plain—that is, it was
obvious under current well-settled law; (3) the error affected [his]
substantial rights; and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.’” United States v.
Booker, 63 F.4th 1254, 1258 (10th Cir. 2023) (quoting United States v. Perez-
Perez, 992 F.3d 970, 974 (10th Cir. 2021)). “Failure to establish any one of
these elements precludes reversal.” United States v. Romero, 132 F.4th
1208, 1218 (10th Cir. 2025). As we will explain, Mr. Yazzie’s procedural
reasonableness challenge fails at the first prong because he cannot show
error.
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“[A] district court commits procedural error when it misunderstands
or misapplies the law.” United States v. Farley, 36 F.4th 1245, 1250 (10th
Cir. 2022) (quoting United States v. Gallegos-Garcia, 618 F. App’x 402, 405
(10th Cir. 2015) (unpublished)). Here, we are concerned with supervised
release revocation sentencing under 18 U.S.C. § 3583(e). That statutes says
a district court “may, after considering the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)”
choose to “revoke a term of supervised release, and require the defendant
to serve in prison all or part of the term of supervised release authorized by
statute for the offense that resulted in such term of supervised release” if
the district court “finds by a preponderance of the evidence that the
defendant violated a condition of supervised release[.]” 18 U.S.C.
§ 3583(e)(3).
In accordance with the plain text of § 3583(e), we have explained that,
“[b]efore deciding whether to revoke a term of supervised release and
determining the sentence imposed after revocation, the district court must
consider the factors set out in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 5 McBride, 633 F.3d at 1231
5 We have said the district court “must consider the factors in 18 U.S.C.
§ 3553(a) and the policy statements in Chapter 7 of the Sentencing Guidelines.” 13 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 14
(emphasis added) (citing 18 U.S.C. § 3583(e)). “Notably absent from this list
is § 3553(a)(2)(A)[.]” Booker, 63 F.4th at 1258. That provision directs district
courts to consider “the need for the sentence imposed . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense[.]” 18 U.S.C. § 3553(a)(2)(A). “Section
3353(a)(2)(A),” we have said, “represents ‘retribution,’ one of the ‘four
purposes of sentencing’ that courts must consider when fashioning a
sentence during the initial sentencing process.” Booker, 63 F.4th at 1258
(quoting Tapia v. United States, 564 U.S. 319, 325 (2011)).
Recently, in Esteras v. United States, the Supreme Court clarified that
§ 3583(e)’s omission of any reference to § 3553(a)(2)(A) means “[d]istrict
courts may not consider the retributive purpose of § 3553(a)(2)(A) before
revoking supervised release.” 6 606 U.S. 185, 203 (2025). Although “§ 3553(a)
United States v. Vigil, 696 F.3d 997, 1002 (10th Cir. 2012) (emphasis added). But § 3553(a)(4)(B)—one of the factors § 3583(e) specifically directs the district court to consider—already requires the district court to review “the applicable guidelines or policy statements issued by the Sentencing Commission[.]” 18 U.S.C. § 3553(a)(4)(B). Mr. Yazzie does not argue the district court erred by failing to consider Chapter 7. 6 Esteras resolved a circuit split, and in so doing, reaffirmed our circuit
precedent. In United States v. Booker, we already concluded “[t]he omission of § 3553(a)(2)(A) from the list of sentencing factors enumerated in § 3583(e) means that district courts may not consider the need for a revocation sentence to (1) ‘reflect the seriousness of the offense,’ (2) ‘promote respect for the law,’ and (3) ‘provide just punishment for the offense’ when 14 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 15
lays out 10 factors that inform a district court’s sentencing decision[,]” the
Supreme Court explained, “[§] 3583(e) provides that a district court may
revoke a term of supervised release ‘after considering’ 8 of these 10 factors.”
Id. at 195. “The natural implication is that Congress did not intend for
courts [in the supervised release revocation context] to
consider . . . § 3553(a)(2)(A)[.]” Id.
This matters because “[w]hen a sentencing statute mandates
consideration of certain factors, it is procedural error to consider
unenumerated factors.” Booker, 63 F.4th at 1259. Still, as the Supreme
Court recently reminded us in Esteras: “Much will turn on whether the
defendant objects.” 606 U.S. at 202. In the plain error context, “the district
court’s order revoking supervised release and requiring reimprisonment
will be affirmed unless it is ‘“clear”’ or ‘“obvious”’ that the district court
actually relied on § 3553(a)(2)(A)—because it did so either expressly or by
unmistakable implication.” Id. at 202–03 (citing United States v. Olano, 507
U.S. 725, 734 (1993)).
Mr. Yazzie insists he meets this standard, so we should reverse. He
argues, “it is absolutely clear that [his] revocation sentence is retribution
for the original sentence and lack of compliance despite the previous
modifying or revoking a term of supervised release.” 63 F.4th 1254, 1261 (10th Cir. 2023).
15 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 16
punishments.” Op. Br. at 11. He does not meaningfully explain why this is
so or otherwise develop an argument beyond this conclusory assertion. 7 We
discern no error in any event.
The district court explained it “reviewed the violation report and the
factors set forth in 18 U.S.C. § 3583(e),” and had “great concern under the
3583 factors” due to Mr. Yazzie’s repeated “violations of the law, including
. . . failure to register as a sex offender[.]” RII.17, 19. True, the district court
briefly referenced an impermissible § 3553(a)(2)(A) factor—the need to
promote respect for the law. But it immediately recognized its mistake and
corrected course saying, “I take that back.” RII.20. The district court then
clarified the revocation sentence was necessary to deter Mr. Yazzie, “protect
the public from further crimes by [Mr. Yazzie],” and facilitate “vocational
and educational training” and substance abuse treatment for Mr. Yazzie.
RII.20. See 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). As the government
persuasively observes, “the district court expressly referred (three times) to
the § 3583(e) factors” and “tied [Mr.] Yazzie’s pattern of noncompliance
7 Mr. Yazzie’s failure to adequately develop this argument provides an
independent basis for us to reject it. See United States v. Clay, 148 F.4th 1181, 1201 (10th Cir. 2025) (noting we “will not consider . . . issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation” (quoting United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004))). 16 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 17
while on conditions of release to either the need to protect the public or to
provide adequate deterrence[.]” Ans. Br. at 15.
The same is true for the district court’s reference to Mr. Yazzie’s
original offense. Here, the district court said Mr. Yazzie’s “base offense,
sexual abuse of a minor, is a very serious offense.” RII.16. But as the
government correctly points out, the district court referenced the
seriousness of Mr. Yazzie’s underlying crime “in the context of public-safety
concerns related to his continued non-compliance with sex-offender-
registration requirements[.]” Ans. Br. at 16 (citing RII.17–18). There is
nothing improper about the district court’s approach. See Esteras, 606 U.S.
at 200 (explaining a district court “may consider the nature and
circumstances of the offense as relevant for the considerations set forth in
§§ 3553(a)(2)(B), (C), and (D)—namely, deterrence, incapacitation, and
rehabilitation—but a court cannot consider the nature and circumstances
of the offense as relevant to § 3553(a)(2)(A)’s retributive focus.”); United
States v. Reyes, No. 25-2144, 2026 WL 1004501, at *4 (10th Cir. Apr. 14,
2026) (unpublished) (holding a “district court does not commit error . . . by
observing that a defendant has committed serious crimes in the past, has
been punished for those crimes, but was not deterred from committing
17 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 18
another crime” because “[t]hat factors into the need to protect the public
from further crimes of the defendant”). 8
It is far from “‘“clear”’ or ‘“obvious”’ that the district court actually
relied on § 3553(a)(2)(A)[.]” Esteras, 606 U.S. at 202–03. On this record, Mr.
Yazzie has not carried his burden of proving any procedural error—let alone
a plain one—in the district court’s revocation sentence. 9 Given our
conclusion, “we need not reach the other three prongs of plain error
review[.]” United States v. Wireman, 849 F.3d 956, 966 (10th Cir. 2017).
We turn now to Mr. Yazzie’s substantive reasonableness challenge.
“[S]ubstantive reasonableness review broadly looks to whether the district
court abused its discretion in weighing permissible § 3553(a) factors in light
of the totality of the circumstances.” United States v. Vigil, 696 F.3d 997,
1002 (10th Cir. 2012) (alteration in original) (internal quotation marks
omitted). “A district court abuses its discretion when it renders a judgment
8 We can rely on unpublished decisions for their “persuasive value.” United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015) (citing 10th Cir. R. 32.1). 9 Mr. Yazzie claims the district court “did not significantly consider the
‘rehabilitative ends’ of sentencing or provide [him] ‘with postconfinement assistance’ as discussed by the Supreme Court.” Op. Br. at 11–12. This passing argument is waived. See United States v. Martinez, 92 F.4th 1213, 1264 (10th Cir. 2024) (“‘[C]ursory statements, without supporting analysis and case law’ are not the kind of briefing that preserves arguments for review[.]” (quoting Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007))). 18 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 19
that is arbitrary, capricious, whimsical, or manifestly unreasonable.” Ortiz-
Lazaro, 884 F.3d at 1265 (quoting United States v. Steele, 603 F.3d 803, 809
(10th Cir. 2010)).
Generally, a sentence is substantively reasonable so long as it does
not “‘exceed[] the bounds of permissible choice,’ given the facts and the
applicable law in the case at hand.” United States v. McComb, 519 F.3d
1049, 1053 (10th Cir. 2007) (quoting United States v. Ortiz, 804 F.2d 1161,
1164 n.2 (10th Cir. 1986)). But “reasonableness review ‘must not be
regarded as a rubber stamp.’” United States v. Vazquez-Garcia, 130 F.4th
891, 900 (10th Cir. 2025) (quoting United States v. Pinson, 542 F.3d 822,
836 (10th Cir. 2008)). When, as here, we are “reviewing a district court’s
decision to impose an upward variance, 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. Guevara-Lopez, 147
F.4th 1174, 1184 (10th Cir. 2025) (quoting Gall v. United States, 552 U.S.
38, 50 (2007)); see also Ortiz-Lazaro, 884 F.3d at 1265 (holding a revocation
sentence is substantively reasonable so long as the district court did not
abuse its discretion “in determining that the § 3553(a) factors supported
[the] sentence . . . and justified a substantial deviation from the Guidelines
range” (alteration in original) (quoting Gall, 552 U.S. at 56)).
19 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 20
Mr. Yazzie contends the district court’s sentencing decision “was not
based on a carefully tailored evaluation of the [§ 3583(e) and § 3553(a)]
factors[.]” Op. Br. at 16. The district court, he argues, “ignored numerous
factors,” “chose an extremely harsh punishment,” and offered “an arbitrary,
whimsical, capricious, and manifestly unreasonable set of bases for its
decision.” Op. Br. at 16. Mr. Yazzie also says the district court’s sentencing
“decision is unsupported by evidence in the record.” Op. Br. at 16. He
appears to suggest his revocation sentence is unreasonably long because he
did not “attempt[] to harm any children, any other persons, or be a danger
to the community.” Op. Br. at 16. He also contends his eighteen-month
revocation sentence is too long, particularly because he “only received 36
months [in prison] for the original [offense].” 10 Op. Br. at 15.
We are not persuaded. The district court “reviewed the violation
report and the factors set forth in 18 U.S.C. § 3583(e)[.]” RII.19. Before
imposing the revocation sentence, the district court discussed Mr. Yazzie’s
lengthy history of violating his supervised release conditions and cited its
10 Mr. Yazzie’s substantive reasonableness challenge is almost entirely
undeveloped. He does not identify which § 3553(a) factors the district court supposedly “ignored.” Op. Br. at 16. He does not articulate how his revocation sentence is “arbitrary, whimsical, capricious, and manifestly unreasonable[.]” Op. Br. at 16. And he never explains why the evidence does not support that sentence. This deficiency provides an independent basis for rejecting Mr. Yazzie’s substantive reasonableness challenge. See Clay, 148 F.4th at 1201. 20 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 21
“responsibility to protect the public from further crimes” in light of Mr.
Yazzie’s ongoing “danger to the community[.]” RI.16–18. On this front, the
district court emphasized that its previous above-Guideline revocation
sentence of thirteen months “did not deter” Mr. Yazzie. RI.18. The district
court reasoned, “a sentence within the [G]uideline range [was] not sufficient
to support the goals of sentencing,” and it needed to “go higher than that to
do so.” RII.18–19.
Mr. Yazzie’s suggestion that the substantive reasonableness of a
revocation sentence can be assessed by comparing it to the length of the
original sentence has no support in the law. As the government points out,
none of the § 3553(a) factors incorporated by § 3583(e) directs the district
court to consider the length of the defendant’s original sentence “as a
benchmark for the reasonableness of his later revocation sentence.” Ans.
Br. at 22. Mr. Yazzie does not point us to any authority holding otherwise.
Nor does the record support Mr. Yazzie’s conclusory argument that
the district court’s sentencing decision is arbitrary. Contrary to Mr. Yazzie’s
assertion, the record amply supports the length of the sentence imposed.
We find nothing arbitrary about the district court’s choice particularly given
the inefficacy of lesser revocation sentences on three prior occasions. See,
e.g., Vigil, 696 F.3d at 1002 (finding revocation sentence substantively
reasonable where the district court “considered [the defendant]’s blatant,
21 Appellate Case: 25-2047 Document: 42-1 Date Filed: 06/12/2026 Page: 22
repeated violations of the conditions of her probation and supervised release
and determined the . . . [recommended range] was insufficient”). “Under the
[G]uidelines, recidivism is generally a reason for increased sentencing
severity.” Steele, 603 F.3d at 809. As the district court’s discussion makes
clear, Mr. Yazzie’s recidivism provides a “sufficiently compelling”
justification “to support the degree of the variance” here—a six-month
upward deviation from the top of the applicable Guideline range. Gall, 552
U.S. at 50.
III
We AFFIRM Mr. Yazzie’s revocation sentence.
Entered for the Court
Veronica S. Rossman Circuit Judge