United States v. Toliver , 183 F. App'x 745 ( 2006 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    June 8, 2006
    TENTH CIRCUIT                     Elisabeth A. Shumaker
    Clerk of Court
    U N ITED STA TES O F A M ER ICA,
    Plaintiff - Appellee,                    No. 05-1331
    v.                                            (D. Colorado)
    M ELVIN JERROD TOLIVER,                          (D.C. No. 97-CR-388-N)
    Defendant - Appellant.
    OR D ER AND JUDGM ENT *
    Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.
    M elvin Jerrod Toliver appeals the revocation of his supervised release and
    the imposition of a prison sentence for violating the terms of his supervised
    release. W e affirm the revocation but remand for resentencing.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    BACKGROUND
    In M arch 1998, Toliver pled guilty to one count of bank fraud. He was
    sentenced to twenty-seven months’ imprisonment, followed by five years of
    supervised release. He was released from prison and commenced his term of
    supervised release in M ay 2000. His supervised release was revoked in December
    2003 when he admitted two violations of his conditions of release. 1 The district
    court imposed the highest sentence available under the United States Sentencing
    Commission, Guidelines M anual (“USSG ”), fourteen months, and imposed
    another three-year term of supervised release.
    Toliver was released to commence serving his new three-year term of
    supervised release on October 5, 2004. Although he was required to report in
    person to his probation officer within seventy-two hours of his release, Toliver
    did not in fact report until October 26, 2004. On M arch 1, 2005, Toliver was
    evicted from his residence and became homeless. On M arch 7, 2005, Toliver’s
    probation officer sought a warrant for Toliver’s arrest, alleging six violations of
    his conditions of release: (1) failure to report to the probation officer as directed;
    (2) failure to follow the instructions of the probation officer; (3) failure to notify
    the probation officer of a change in residence; (4) failure to report
    arrest/questioning by law enforcement officers; (5) failure to operate a tow truck
    with a valid license and PUC permit; and (6) failure to report to the probation
    1
    These two violations apparently related to Colorado state law infractions.
    -2-
    office in person within seventy-two hours of release from custody of the Bureau
    of Prisons.
    Toliver was arrested and appeared before a magistrate judge, who
    dismissed for insufficient evidence alleged violations (1), (2) and (5). The court
    then held a hearing on the remaining allegations and found Toliver not liable for
    alleged violation (4), but found him guilty of violations (3) and (6).
    After finding that Toliver had violated those two terms of his supervised
    release, the court revoked Toliver’s supervised release and sentenced him to
    twenty-two months’ imprisonment. In doing so, it noted that the advisory
    Guidelines range was eight to fourteen months. But it decided to “impose a non-
    Guideline sentence,” 2 consistent with the government’s request at the hearing, of
    twenty-two months because the court had considered “the nature and
    circumstances of this case and the history and characteristics of the defendant,” as
    well as the statutory purposes of sentencing, including “most importantly in this
    case, the need for the sentence imposed to protect the public from further crimes
    of the defendant. And to afford adequate deterrence.” Tr. of Hr’g at 43-44, R.
    2
    The parties at times use the word “depart” and “departure” to describe the
    court’s sentence in this case. As we noted in United States v. Sanchez-Juarez,
    
    446 F.3d 1109
    , 1113 (10th Cir. 2006), some circuits have held that the concept of
    “departures” from Guidelines ranges has become obsolete since the Supreme
    Court’s decision in United States v. Booker, 
    543 U.S. 220
     (2005), rendered the
    Guidelines advisory. Our circuit still uses “departure” terminology in certain
    circumstances, but not with the same vitality and force that it had pre-Booker.
    Our decision in this case is not influenced by how the term is used or defined.
    -3-
    Vol. III. The district court also noted that Toliver had previously violated the
    conditions of his supervised release, and that Toliver’s actions suggested he had
    learned nothing from his “very serious” criminal history. Id. at 44.
    Toliver appeals the revocation and sentence, arguing (1) permitting the
    probation office to “resurrect” charge 6— failure to report to the probation office
    within seventy-two hours of his release from prison— five months after it
    happened violated Toliver’s rights under the Due Process Clause; (2) the district
    court should have dismissed allegation 3 because Toliver either complied with the
    notification requirement or it is unconstitutionally vague in circumstances where
    Toliver became homeless; and (3) the sentence is invalid because the court drew
    improper inferences from the facts surrounding Toliver’s eviction and used those
    facts as the basis for sentencing Toliver above the advisory Guideline range.
    D ISC USSIO N
    I.    Failure to Report
    In January 2004, when Toliver was sentenced to fourteen months’
    imprisonment and three years of supervised release for violating the terms of his
    supervised release following his conviction and sentence for bank fraud, one of
    the conditions of his three-year supervised release term was that “[w]ithin
    seventy-two hours of his release from the custody of the Bureau of Prisons,
    [Toliver] shall report in person to the probation office.” Judgment at 3, R. Vol. I,
    -4-
    Doc. 57. Toliver concedes that he violated this condition when he was released in
    October 2004. He further concedes that “no in person meeting occurred until
    October 26, 2004, three weeks after M r. Toliver’s release, and well beyond the
    72-hour deadline.” Appellant’s Op. Br. at 4. The probation office took no action
    at that time concerning this violation.
    As indicated, Toliver and his family were evicted from their home on
    M arch 1, 2005. On M arch 7, Toliver was charged with, inter alia, failing to
    report to the probation office within seventy-two hours of his release from prison
    in October 2004. W hile Toliver concedes he violated this condition of his
    supervised release, he argues that the probation office’s resurrection of this
    charge five months after its occurrence violates Toliver’s Due Process rights.
    Toliver’s Due Process argument is a legal argument which we would
    ordinarily review de novo. Toliver admits that he did not raise this argument
    below, and that our review is therefore for plain error only. “Under that doctrine
    we will reverse the judgment below only if there is (1) error, (2) that is plain,
    which (3) affects substantial rights, and which (4) seriously affects the fairness,
    integrity, or public reputation of judicial proceedings.” United States v. Teague,
    
    443 F.3d 1310
    , 1314 (10th Cir. 2006) (further quotation omitted).
    Under the Guidelines, the failure to report to the probation office within
    seventy-two hours of release is a Grade C violation. USSG §7B1.1(a)(3), p.s.
    The Guidelines further provide that a “probation officer shall promptly report to
    -5-
    the court any alleged Grade C violation unless the officer determines: (1) that
    such violation is minor, and not part of a continuing pattern of violations.” Id.
    §7B1.2(b), p.s. Toliver argues the probation officer evidently determined that
    this was a minor violation because he did nothing about it (i.e., he failed to report
    it to the court) at the time. Then five months later, after the probation officer
    became aware of additional alleged violations of Toliver’s conditions of
    supervised release, the probation officer decided to seek revocation of Toliver’s
    supervised release on the basis of the failure-to-report, as well as five other
    alleged violations. W e perceive no due process violation in that decision.
    As indicated, a probation officer “shall promptly report . . . any alleged
    Grade C violation unless the officer determines . . . [the] violation is minor, and
    not part of a continuing pattern of violations.” Id. Because Toliver’s failure to
    report occurred at the commencement of his supervised release, the probation
    officer evidently adopted a “wait-and-see” attitude to see whether a “continuing
    pattern” of violations emerged, or whether Toliver instead remained in
    compliance with his conditions of release. Although we do not encourage the
    kind of delayed response to a clear violation of a condition of supervised release
    that occurred here, we decline to hold that a probation officer must promptly
    report every violation or forever lose the right to do so.
    “The courts have long accorded probation officers w ide discretion in
    determining whether to seek revocation.” United States v. Shampang, 987 F.2d
    -6-
    1439, 1443 (9th Cir. 1993). Indeed, as indicated, the Guidelines contemplate
    awaiting the development of a “continuing pattern of violations.” W e cannot say
    that the probation officer violated Toliver’s constitutional rights by doing just
    that. “Absent prejudice, . . . a delay motivated by a desire to utilize the
    rehabilitation process rather than abandon it does not violate due process when
    the earlier violations are charged along w ith more recent ones because
    collectively they show that the further attempt at rehabilitation had not
    succeeded.” Id. (internal quotation omitted); see also Jones v. Johnson, 
    230 F.3d 825
    , 828 (5th Cir. 2000) (“[A]n original decision not to issue a revocation warrant
    in response to a probation violation may be reasonable and is not made
    unreasonable by a reevaluation in light of additional violations that the
    probationer later committed.”). 3 Toliver has demonstrated no prejudice here.
    Thus, we do not conclude that the district court committed plain error in
    determining that Toliver’s admitted violation of the condition requiring him to
    promptly report to the probation office warranted the revocation of his release and
    3
    Toliver relies upon United States v. Hamilton, 
    708 F.2d 1412
     (9th Cir.
    1983), in which a probationer who had violated a condition of his probation, and
    had informed the court of that violation, was not charged with that violation until
    three years later. The court held that was too long. That case is obviously
    distinguishable from the instant case. W hile there are cases where an alleged
    violation of a term of probation or supervised release can become stale, this is not
    such a case.
    -7-
    the imposition of a prison term, even though the probation office delayed pursuit
    of this violation for five months. 4
    4
    W e note, however, that there are troubling aspects to the probation
    officer’s conduct in this case. Toliver argues that, by failing to report to the court
    Toliver’s failure to report to the probation officer within seventy-two hours, the
    probation officer evidently found it was a minor or technical violation. Yet the
    district court itself found the failure-to-report was not a minor violation:
    This man has a serious criminal history. And it is a matter of
    extreme importance that he be closely supervised. And to closely
    supervise him, that means he has to comply with these terms and
    conditions. It means there can be no looseness in supervised release.
    He didn’t make contact with his probation officer even by
    telephone until the 26th of October. That was finally when they got
    together.
    Now, that is a period of about three weeks when he was not
    subject to supervision. This is why this is not a technical violation.
    It’s not a technical violation, especially for somebody with this
    criminal history, because it is a matter of great urgency that
    somebody with his criminal history be supervised and be supervised
    continuously and immediately.
    Tr. of H r’g at 34-35, R. Vol. III. The seriousness of the failure-to-report
    violation, on the basis of Toliver’s criminal history, would have been apparent to
    the probation officer, indeed to any observer, at the time of that violation. There
    was no need to wait and see if a “continuing pattern” of violations ensued. Our
    decision does not turn, however, on whether or not the district court correctly
    found the initial failure-to-report violation was technical or not. The probation
    officer had the authority to take a “wait-and-see” approach, and determine to seek
    revocation of Toliver’s supervised release once he concluded that a continuing
    pattern of violations had occurred.
    -8-
    II.   Failure to Report Change of Address
    Another condition of Toliver’s supervised release was that he notify his
    probation officer ten days in advance of any change in his address. The district
    court found that he had violated this condition when he was evicted from his
    home and failed to notify his probation officer of this fact and failed to provide
    the officer a new contact address. Toliver challenges this finding on two bases:
    (1) the district court erred in finding that Toliver had in fact violated this
    condition; and (2) the condition requiring notification is unconstitutionally vague
    where the person subject to the condition becomes homeless.
    (1) Violation of condition
    Revocation proceedings are governed by 
    18 U.S.C. § 3583
    (e), which directs
    a district court to consider factors set out in 
    18 U.S.C. § 3553
    (a) before
    determining a particular sentence for a particular defendant.
    Those factors include 1) the nature and circumstances of the offense,
    2) the history and characteristics of the defendant, 3) the need for the
    sentence to afford adequate deterrence to criminal conduct, 4) the
    need to protect the public from further crimes of the defendant, 5) the
    need to provide the defendant with needed training, medical care, or
    correctional treatment, and 6) the sentencing range established under
    the sentencing guidelines or the policy statements applicable to a
    violation of supervised release.
    United States v. Kelley, 
    359 F.3d 1302
    , 1304 (10th Cir. 2004) (citing 
    18 U.S.C. § 3553
    (a)). “If the government proves by a preponderance of the evidence that a
    defendant violated a condition of supervised release, . . . the district court has
    -9-
    discretion to revoke supervised release.” United States v. Carothers, 
    337 F.3d 1017
    , 1019 (8th Cir. 2003) (citing 
    18 U.S.C. § 3583
    (e)(3) (“The [district] court
    may . . . revoke a term of supervised release, and require the defendant to serve in
    prison all or part of the term of supervised release . . . if the court . . . finds by a
    preponderance of the evidence that the defendant violated a condition of
    supervised release. . . .”)). “On appeal, the district court’s decision to revoke
    supervised release based on its finding of a violation is reviewed only for abuse
    of discretion.” 
    Id.
     (internal quotation omitted); see also United States v.
    Hamm onds, 
    370 F.3d 1032
    , 1034 (10th Cir. 2004) (“W e review orders revoking
    supervised release for an abuse of discretion.”). Further, “as in other contexts
    where a district court has discretion to take certain action based on its findings of
    fact, the court’s subsidiary factfinding as to whether or not a violation occurred is
    reviewed for clear error.” Carothers, 
    337 F.3d at 1019
     (internal quotation
    omitted).
    Toliver’s probation officer testified at the revocation hearing that after
    Toliver’s eviction from his residence on M arch 1, 2005, he “had no idea where
    [Toliver] was until his arrest, M ay 4, 2005.” Tr. of Hr’g at 7, R. Vol. III. He
    further testified that Toliver left him no “contact information.” 
    Id.
     The officer
    stated he “had several telephone conversations with [Toliver’s] wife[,] [who]
    would repeatedly tell [the officer that Toliver] was out on a tow, he was out on a
    call, he was unavailable, but she had given him [the officer’s] messages to call
    -10-
    . . . [a]nd [the officer] never spoke with M r. Toliver until he was arrested on the
    warrant.” 
    Id.
     The officer further testified that, while Toliver had submitted his
    monthly report for M arch and made a restitution payment, his monthly report
    contained an “illegible” word under Toliver’s street address. Id. at 16.
    Toliver testified that the eviction came as a “surprise” to him, although he
    had been in a legal disagreement with his landlord “for like four months.” Id. at
    21-22. He further testified that he had posted an appeal bond, which he believed
    would stay any eviction, although he also testified that he knew the eviction
    “could have occurred at some point in and around” M arch 1. Id. at 23. Toliver
    also testified that he did not recall efforts by his probation officer to contact him
    after he was evicted, and that the word the officer testified was illegible on his
    monthly report was meant to state “homeless.” Id. at 24. Toliver argues that his
    probation officer knew he had been evicted, so notification was pointless. He
    then argues that, because he was homeless, he was unable to notify his probation
    officer of any address.
    The district court found that Toliver “knew that he was going to be evicted
    or that there was going to be some action on or around M arch 1[,] [although]
    [i]t’s extremely unclear what was happening here.” Id. at 36. The court further
    found:
    Even if [the court] were to accept the excuse that [Toliver]
    somehow didn’t know ten days in advance that he was going to be
    evicted, the fact is, he didn’t make any attempt for months to really
    -11-
    keep the probation officer informed of any change in address or
    where he was or that he was living out of his car or anything like
    that.
    The Court finds on the evidence that [Toliver] did fail to notify
    the probation officer of a change in residence, if not ten days prior to
    the change in residence, but then certainly within a reasonable period
    of time afterwards. [Toliver] never notified the probation officer, and
    the probation officer didn’t know where he was until he was arrested
    on M ay 4.
    Id. at 37-38.
    The record supports the district court’s finding that Toliver violated the
    condition of his release obligating him to inform his probation officer of a change
    of his address. As the district court noted, even if Toliver was unaware that he
    would be evicted ten days in advance of that eviction, the condition clearly
    obligated Toliver to notify his probation officer after the eviction and provide him
    with an address where the probation officer could contact Toliver. Toliver simply
    failed to do that. The fact that the probation officer learned of Toliver’s eviction
    on M arch 1 is beside the point. The obvious rationale for the condition is to
    enable the probation officer to remain in touch and contact with his probationer
    whenever the probationer changes address. Being rendered homeless does not
    absolve a probationer of this obligation; it simply means the probationer must
    inform the probation officer of an address— such as the address of a shelter, a
    street address w here the probationer’s car/home is parked regularly, etc.— where
    the officer can contact the probationer. The district court did not err in finding
    -12-
    that Toliver had violated the condition obligating him to notify his probation
    officer of a change of address.
    (2) Unconstitutional vagueness
    Toliver argues the condition requiring notification of a change of address is
    unconstitutionally vague when the probationer becomes homeless. Toliver failed
    to make this argument below, so we review it only for plain error. “Under that
    doctrine we will reverse the judgment below only if there is (1) error, (2) that is
    plain, which (3) affects substantial rights, and which (4) seriously affects the
    fairness, integrity, or public reputation of judicial proceedings.” Teague, 
    443 F.3d at 1314
     (further quotation omitted).
    Toliver fails to develop a distinct and separate argument on this point, other
    than to argue that the condition of release says nothing about homelessness and
    what a person on supervised release must do when rendered homeless. However,
    as indicated above, the rationale for the condition is obvious. Equally obvious is
    how a homeless person should comply with the condition. Accordingly, we
    perceive no plain error in the district court’s determination that Toliver violated
    this condition of release following his eviction.
    III.   Validity of Sentence
    Toliver also challenges his twenty-two month sentence, arguing that “in
    departing from the policy statements contained in the federal sentencing
    -13-
    guidelines” and imposing a sentence higher than the range provided by the
    advisory Guidelines, the court impermissibly “mixed valid reasons w ith invalid
    ones.” A ppellant’s Op. Br. at 23. In particular, Toliver alleges that the court
    improperly “extrapol[ated] and criminaliz[ed] . . . the facts surrounding the
    eviction as a continuation of M r. Toliver’s prior criminal activity.” A ppellant’s
    Reply Br. at 14.
    The “imposition of a sentence in excess of that recommended by the
    Chapter 7 policy statements of the Sentencing Guidelines will be upheld if it can
    be determined from the record to have been reasoned and reasonable.” United
    States v. Tedford, 
    405 F.3d 1159
    , 1161 (10th Cir. 2005) (further quotation
    omitted). A close analysis of the record of the revocation and sentencing
    proceedings in this case reveals some troubling aspects which make our review on
    appeal difficult. In accordance with a typical proceeding involving an alleged
    violation of supervised release, the United States Probation Office prepared a
    Supervised Release Violation Report (“SRVR”). It noted that, pursuant to the
    policy statements in the Guidelines, with a Grade C violation of a condition of
    supervised release, and with Toliver’s criminal history category of VI, the
    advisory Guideline imprisonment range was eight to fourteen months. SRVR at
    3, Supp. Vol. III. Under “Factors that M ay W arrant Departure” the SRVR stated
    “[n]one.” 
    Id.
     Both parties received copies of the SRVR and were permitted to
    -14-
    make objections thereto. Toliver did not object to it. The SRVR contained the
    following in its discussion of Toliver’s supervision history:
    On December 8, 2004, [Toliver] reported to my office and told me he
    w as residing at 1925 S. B annock St., Denver Colorado 80223. On
    December 21, 2004, I responded to this residence and learned that
    [Toliver] was both living and working out of this location.
    Conversations with [Toliver’s] landlord, Jerry Piper, revealed
    M r. Piper had numerous problems with [Toliver] paying his rent with
    insufficient funds checks, damaging the property, stealing door locks,
    etc. [Toliver] was ultimately evicted from this residence on M arch 1,
    2005.
    Id. at 4.
    The record also contains a Sentencing Recommendation from the Probation
    Office, which government counsel at oral argument represented was not given to
    both parties, but only to the district court. This document recommended a
    sentence of twenty-two months, for the follow ing reasons:
    [Toliver] has clearly demonstrated that he is not amenable to
    continued community-based supervis[ion]. He has abused his
    financial responsibilities with his bank, writing numerous insufficient
    funds checks to individuals and vendors in the Denver metropolitan
    area. [Toliver] has pending charges in Arapahoe County that could
    result in a lengthy person term. [Toliver] has the ability to run a
    very lucrative business; however, he chooses to gain prosperity
    through illicit means. His criminal history commenced nearly 22
    years ago and includes numerous convictions for theft related
    matters. He is viewed as an extreme risk to the community and
    accordingly, continued supervision is not recommended.
    Id. at R-1.
    At sentencing, Toliver asked for a sentence at the bottom of the advisory
    Guideline range of eight to fourteen months, and the government sought an
    -15-
    upward “departure” to twenty-four months, “based on [Toliver]’s criminal history,
    as well as his second try on supervised release, which failed.” Tr. of Hr’g at 40,
    R. Vol. III. 5 The court then “impose[d] a non-Guideline sentence” in
    consideration of “the nature and circumstances of this case[,] . . . the history and
    characteristics of the defendant[,] . . . the kinds of sentences available and the
    applicable Federal Sentencing Guidelines specifying a term of 8 to 14 months.”
    Id. at 43-44. The court explained its twenty-two month sentence as “necessary to
    achieve the statutory purposes of . . . most importantly in this case, the need for
    the sentence imposed to protect the public from further crimes of the defendant.
    And to afford adequate deterrence.” Id. at 44. The court further observed that
    Toliver had previously violated the conditions of his supervised release and that
    he had a “very serious criminal history.” Id. Toliver bases his argument on the
    following statement by the court: Toliver’s “current activities suggest he’s
    learned nothing from that criminal history. His criminal history consists at least
    in part of insufficient fund checks, theft by check, and similar violations, and he
    continues to do that, giving his landlord insufficient fund checks.” Id. Thus, the
    court included explicitly as a reason for the sentence above the Guideline range
    the fact that Toliver had given his landlord “insufficient fund checks.” Yet, as
    5
    Later in the proceeding, the government indicated it sought a sentence of
    twenty-two months. Tr. of Hr’g at 43, R. Vol. III. W hether the government
    asked for twenty-two or twenty-four months, both are above the advisory
    Guideline range.
    -16-
    Toliver points out, other than the bare statement in the SRVR, there is no
    evidence in the record supporting that allegation, nor any evidence that that was
    the reason for Toliver’s eviction.
    M ore troubling, however, is the unexplained discrepancy between the
    affirmative statement in the SRVR, which Toliver had received, that there were
    no reasons for a sentence higher than the Guideline range, and the twenty-two
    month above-Guideline recommendation in the Sentencing Recommendation,
    which Toliver apparently did not see. W e have recently held that a district court
    must give the parties notice of its intent to impose an upward Guideline departure.
    United States v. Calzada-M aravillas, 
    443 F.3d 1301
    , 1303-06 (10th Cir. 2006).
    W hile we specifically stated that we “need not resolve in this case whether the
    notice requirement also applies to non-guideline departures under the factors
    listed in 
    18 U.S.C. § 3553
    (a),” C alzada-M aravillas, 
    443 F.3d at 1305
    , and this
    case arguably involves such a non-Guideline departure, nonetheless we find
    troubling the court’s decision at the hearing to sentence Toliver above the
    advisory Guideline range, based in part upon a comment in the SRVR which finds
    no other support in the record. In particular we are disturbed by the divergence
    between the SRVR and the Sentencing Recommendation, given the implicit
    representation in the SRVR that there would be no “departure” from the advisory
    Guideline range. Even if the SRVR was referring technically to a Guideline
    departure only, the implication of the w ord “none” under grounds for departure
    -17-
    would have been taken more broadly by counsel. W hile the government
    emphasizes that Toliver failed to object to the SRVR, including its comment
    about Toliver giving his landlord bad checks, Toliver would have had no
    incentive to object to that statement because the SRVR indicated that a sentence
    within the advisory Guideline range was appropriate and that there were no
    grounds for a more severe sentence. See 
    id. at 1306
     (noting that the defendant
    “relied on the recommendations set forth in the PSR [and] [a]s a result, he had no
    incentive to challenge the circumstances of his prior convictions or deportations
    because he had no reason to believe that the court would rely on them to further
    increase his sentence”).
    In sum, we find the record of the sentencing proceedings in this case to be
    sufficiently puzzling and disjointed that we find it difficult to review the sentence
    imposed to determine if it was the product of reasoned deliberation on an
    adequate record, with an appropriate opportunity for Toliver to rebut the reasons
    given for the sentence above the advisory Guideline range. W e accordingly
    remand this case for resentencing. W e express no opinion on what the sentence
    should be, and this opinion should not be read as stating that the sentence
    imposed is reasonable or unreasonable under the standards we now apply since
    -18-
    United States v. Booker, 
    543 U.S. 220
     (2005). See United States v. Rodriguez-
    Quintanilla, 
    442 F.3d 1254
    , 1258 (10th Cir. 2006); Tedford, 
    405 F.3d at 1161
    . 6
    C ON CLU SIO N
    For the foregoing reasons, we A FFIRM the revocation of Toliver’s
    supervised release and REM AND to the district court with instructions to
    VACATE Toliver’s sentence and to resentence him following a hearing.
    ENTERED FOR THE COURT
    Stephen H. Anderson
    Circuit Judge
    6
    W e grant the government’s motion to supplement the record.
    -19-