United States v. Muse , 632 F. App'x 511 ( 2016 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    January 14, 2016
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                      No. 15-1325
    (D.C. No. 1:12-CR-00103-WYD-1)
    JAIMIN YOUNG MUSE,                                       (D. Colo.)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
    After examining the briefs and the 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). This case
    is therefore ordered submitted without oral argument.
    Defendant Jaimin Muse appeals the ten-month sentence imposed by the
    district court after revocation of his supervised release. Specifically, Defendant
    contends the district court imposed a sentence at the top of the advisory
    *
    This order and judgment is not binding precedent, except under the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.
    guidelines range based on impermissible considerations relating to Defendant’s
    race and the possible rehabilitative effect of incarceration. Because Defendant
    did not raise these arguments below, we review only for plain error. See United
    States v. Ruby, 
    706 F.3d 1221
    , 1225 (10th Cir. 2013).
    In 2012, Defendant pled guilty to possession of a firearm as a prohibited
    person in violation of 18 U.S.C. § 922(g)(1). After serving an eighteen-month
    term of incarceration, he began serving a three-year term of supervised release.
    Over the next several months, Defendant committed numerous violations of the
    terms of his release, despite the probation office’s exhaustive efforts to help him
    address his drug addiction problems and numerous warnings regarding the
    possible results of violating the terms of his release. In May 2015, a probation
    officer finally filed a petition for issuance of a warrant for violation of supervised
    release. Defendant subsequently admitted to twelve separate violations of the
    terms of his release.
    At the sentencing hearing, the district court first stated that, in light of
    Defendant’s numerous violations and consistent disregard of the probation
    office’s admonitions, he did not understand why the probation department was
    recommending a bottom-of-the-guidelines sentence of seven months instead of a
    top-of-the-guidelines sentence of ten months. The district court judge questioned
    the probation officer, the prosecutor, and the defense attorney, then conducted an
    extensive colloquy with Defendant. The judge expressed concerns about
    -2-
    Defendant’s attitude, stating he believed Defendant’s words and actions
    demonstrated deceitfulness and hypocrisy instead of any kind of commitment to
    stopping his unlawful behaviors. In response to Defendant’s statement that he
    kept violating his probation because dealing with a drug addiction is hard, the
    judge told Defendant that any achievement is hard, including the judge’s own
    achievement of being the first African American judge in the history of Colorado,
    and Defendant would need to work hard if he was going to be more than just
    another statistic. The judge told Defendant that “men of color”—like both the
    judge and Defendant—face more difficulties than similarly situated white men,
    and he is disappointed when racial minorities make excuses for underachieving
    instead of working harder to overcome their challenges. (Sentencing Tr. at 21.)
    The judge then recommended Defendant take his ten-month period of
    incarceration to figure out who he was and whether he intended to keep going
    down the path of ruination. In doing so, the judge specifically noted for the
    record that his challenge for Defendant to turn his life around had no real
    relationship to the sentence he would impose. The judge also expressed
    significant doubt as to whether Defendant would actually listen to his advice and
    change his behavior. The judge then told Defendant, “[Y]ou need to have a 10-
    month sentence because you don’t deserve a day less,” and he noted again that
    the probation office had shown extreme—and perhaps
    counterproductive—forbearance in the way it dealt with Defendant’s repeated
    -3-
    violations. (Id. at 31.)
    On appeal, Defendant quotes certain passages from the sentencing
    transcript and argues those comments show that the district court impermissibly
    based his sentence on considerations of rehabilitation and race. For instance,
    Defendant argues the judge’s statement that he was imposing a ten-month
    sentence because Defendant “need[ed] to sit for a while” to think about his life
    choices demonstrates the judge selected a longer sentence for purposes of
    rehabilitating Defendant. (Id.) Similarly, Defendant argues the judge’s
    statements about his and Defendant’s status as racial minorities demonstrates that
    the judge would not have imposed a ten-month sentence were it not for
    Defendant’s race.
    Having reviewed the entire sentencing transcript in context, however, we
    are not persuaded the district court’s sentencing decision was based on
    impermissible considerations of rehabilitation or race. While the judge’s advice
    to Defendant referred to his hopes for rehabilitation and his concerns about the
    lack of accountability shown by many young men of color, the record makes clear
    that the sentencing decision itself was based on permissible considerations
    relating to Defendant’s unrepentant attitude and his continued violations despite
    the probation office’s numerous attempts to help him address his drug addiction
    problems. Particularly under the applicable plain error standard of review, we are
    not persuaded that the district court’s editorial comments reflect any reliance on
    -4-
    impermissible considerations in the sentencing decision.
    We accordingly AFFIRM the district court’s decision.
    Entered for the Court
    Monroe G. McKay
    Circuit Judge
    -5-
    

Document Info

Docket Number: 15-1325

Citation Numbers: 632 F. App'x 511

Filed Date: 1/14/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023