United States v. Bey , 432 F. App'x 785 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 10, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-3021
v. (D.C. No. 2:94-CR-20075-001-KHV)
(D. of Kan)
NEWTON O. BEY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Newton Bey was sentenced to a 12-month prison term after he violated the
conditions of his supervised release for a second time. He now contends this
sentence was unreasonable because the district court did not order a psychological
evaluation before sentencing. We conclude Bey’s sentence was procedurally
reasonable.
*
This order and judgment is not binding precedent except under the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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
I. Background
In 1995, Bey pleaded guilty to one count of distributing cocaine base, in
violation of 21 U.S.C. § 841(a)(1), and one count of using and carrying a firearm
in relation to drug trafficking, in violation of 18 U.S.C. § 924(c). He was initially
sentenced to a total of 195 months’ imprisonment, but his sentence was later
reduced to 168 months’ imprisonment pursuant to an amendment to the crack
cocaine sentencing guidelines. Because he had already served at least 168
months, Bey’s sentence was reduced to time served and he was released from
custody subject to supervised release.
Bey subsequently violated the terms of his supervised release by abusing
cocaine, failing to report to treatment, failing to report to his probation officer,
and failing to stay employed. The district court responded by revoking his
supervised release and imposing a nine-month prison term, to be followed by a
three-year term of supervised release. After serving this new prison term, Bey
again violated his supervised release by lying to the probation officer, possessing
a controlled substance, using cocaine and marijuana, and refusing to submit to
drug testing.
The district again court revoked Bey’s supervised release. After
considering Bey’s objections and reviewing the 18 U.S.C. § 3553(a) factors, the
court sentenced him to a term of imprisonment of 12 months and one day,
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followed by 15 months of supervised release. 1 The supervised release included a
mandatory stay at a half-way house for substance abuse treatment. The court
ordered this treatment in response to a request from Bey (which he later
retracted).
Important to this appeal, Bey’s counsel also asked the court to defer its
revocation decision and sentencing until it could analyze whether Bey suffered
from psychological issues. The court declined to do so, and Bey did not object
when the district court imposed the sentence without considering a psychological
evaluation.
II. Discussion
Bey contests the procedural reasonableness of his sentence. Specifically,
he contends the district court erred when it revoked his supervised release and
ordered a prison term without first granting his request for a psychological
evaluation. According to Bey, by failing to order or consider a psychological
evaluation, the district court could not address his need for medical care and other
correctional treatment—a factor it was required to consider under § 3553(a).
Because Bey did not object to the district court’s failure to order and
consider a psychological examination, we review only for plain error. See F ED .
R. C RIM . P. 52(b); United States v. Poe, 556 F.3d 1113, 1128 (10th Cir. 2009).
1
The court originally intended to impose a 12-month sentence, but Bey
asked for an additional day so he would be eligible to earn good time credit.
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Under plain error review, we may not reverse unless we find “(1) error, (2) that is
plain, and (3) that affects substantial rights. If all three conditions are met, [we]
may then exercise [] discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of [the] judicial
proceedings.” United States v. Balderama-Iribe, 490 F.3d 1199, 1204 (10th Cir.
2007) (quotation omitted). Bey bears the burden of demonstrating plain error. Id.Under 18 U.S.C. § 3583(e)(3), when a person violates a condition of his
supervised release, the district court may revoke the term of supervised release
and impose prison time. In so doing, the district court must consider the factors
set forth in § 3553(a). United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008)
(“[F]ailing to consider the § 3553(a) factors and failing to adequately explain the
chosen sentence [are] forms of procedural error.” (quotation omitted)). In
particular, the court must consider the policy statements in Chapter 7 of the
United States Sentencing Guidelines (USSG). 2 United States v. Kelley, 359 F.3d
1302, 1305 (10th Cir. 2004). Under these standards, relevant considerations
include:
The nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence
imposed to afford adequate deterrence, protect the public, and
provide the defendant with needed educational or vocational
training, medical care or other correctional treatment in the most
2
“Th[e] policy statements recommend a range of imprisonment upon
revocation of supervised release and are advisory rather than mandatory.” United
States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004) (quotation omitted).
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effective manner; pertinent guidelines; pertinent policy
statements; the need to avoid unwanted sentence disparities; and
the need to provide restitution.
United States v. Cordova, 461 F.3d 1184, 1188–89 (10th Cir. 2006) (quotations
omitted). In weighing the relevant factors, the court need not recite each factor or
discuss them in detail; it may address the factors “en masse.” See United States v.
Penn, 601 F.3d 1007, 1011 (10th Cir. 2010); Cordova, 461 F.3d at 1188–89.
Indeed, we require neither “magic words” nor “ritualistic incantation[s]” to affirm
a sentence. Penn, 601 F.3d at 1011.
After a careful review of the record, we find the district court’s revocation
of Bey’s supervised release and imposition of a new prison term was a reasonable
decision supported by a conscientious consideration of the § 3553(a) factors.
Specifically, in sentencing Bey, the court noted his repeated criminal offenses,
which counseled toward imposing a term of imprisonment at the high end of the
6-to-12 month range suggested by the USSG. Additionally, the court expressly
addressed the defendant’s serious drug issues—and his stated need and desire for
drug treatment—by requiring that six months of Bey’s supervised release be
served in a half-way house treatment program. The court even gave Bey the extra
day of imprisonment he requested, so that he would be eligible for good time
credits. We note more generally that the district court provided a lengthy and
well-reasoned explanation for imposing the 12-month sentence. In sum, before
revoking Bey’s supervised release and imposing a sentence, the court considered
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the nature and circumstances of the offense, Bey’s history and characteristics, the
need to provide him with medical care and other correctional treatment, and other
pertinent guidelines and policy statements under § 3553(a) and the USSG.
Moreover, Bey points to no authority—and we find none—suggesting the
district court was required to order and consider a psychological evaluation before
sentencing Bey. For this reason alone, any error by the district court could not
have been plain. United States v. Story, 635 F.3d 1241, 1248 (10th Cir. 2011)
(“[F]or an error to be contrary to well-settled law, either the Supreme Court or
this court must have addressed the issue.”); United States v. Goode, 483 F.3d 676,
681 (10th Cir. 2007) (to show plain error, a defendant must establish that an error,
if it occurred, was not “clear or obvious under current law”).
Having determined the district court properly considered the factors it was
bound to review under §§ 3553(a) and 3583(e), we have no difficulty finding
Bey’s sentence was procedurally reasonable under the circumstances presented in
this case.
III. Conclusion
For the reasons discussed above, we AFFIRM.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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