United States v. Donovan ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 16, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-6167
v. (D.C. No. 5:13-CR-00289-HE-1)
(W.D. Oklahoma)
WILLIAM R. DONOVAN,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, EBEL, and EID, Circuit Judges.
_________________________________
I. INTRODUCTION
William R. Donovan stipulated to four violations of the conditions of his
supervised release from a conviction for conspiracy to commit bank fraud. The
district court revoked his release and sentenced him to 18 months’ imprisonment,
above the 6–12 month range recommended by the advisory policy statements found
in Chapter 7 of the Sentencing Guidelines, but below the 24-month statutory
maximum. Mr. Donovan appeals this sentence on grounds of procedural and
substantive unreasonableness. Both challenges stem from his argument that the court
*
This order and judgment is not binding precedent, except under the doctrines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.
impermissibly premised its sentencing decision on unproven, uncharged factual
allegations that Mr. Donovan was involved in several tag agency burglaries under
investigation by a local Oklahoma police department.
Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we
affirm the district court’s sentence as both reasoned and reasonable. There was no
plain procedural error, because the court’s sentencing decision was premised not on
the uncharged factual allegations Mr. Donovan complains of, but rather on conduct to
which he admitted—primarily, purposefully deceiving his probation officer. There
was also no substantive error: The court did not abuse its discretion by imposing a
sentence six months longer than the high end of the Guidelines range, because its
reasoning closely matched the core Chapter 7 guidance pertaining to revocation
sentencing philosophy.
II. BACKGROUND
On December 10, 2013, a federal grand jury returned a seven-count indictment
against Mr. Donovan and two co-defendants, charging Mr. Donovan with three
counts of bank fraud, in violation of 18 U.S.C. § 1344, three counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A, and one count of conspiracy to
commit those offenses, in violation of 18 U.S.C. § 371. These charges stemmed from
allegations that Mr. Donovan engaged in a scheme to make fraudulent personal
identification documents, using employee information stolen from a petroleum
transportation services company at which he worked, for the purpose of cashing
2
counterfeit checks. The scheme involved burglarizing Oklahoma tag agencies1 to
steal items used to create false IDs, “including printers, cameras, blank driver’s
license card stock, copies of birth certificates, copies of marriage licenses, [and]
driver’s license applications.” Supp. ROA at 7. Mr. Donovan admitted to federal
investigators that he was involved in various Oklahoma tag agency burglaries
committed in 2013. He also admitted to making counterfeit driver’s licenses to cash
counterfeit checks. The scheme resulted in the successful cashing of 36 counterfeit
checks, for a total loss of $44,883.
On February 3, 2014, Mr. Donovan entered a plea agreement with the
government, pursuant to which he pleaded guilty to the one charged count of
conspiracy, in violation of 18 U.S.C. § 371, and the government dismissed the other
counts. The district court accepted this plea and, on September 4, 2014, sentenced
Mr. Donovan to 60 months in prison followed by three years of supervised release.
Mr. Donovan was released from prison and began serving his three-year term
of supervised release on November 1, 2017. On April 2, 2019, Mr. Donovan’s
1
Tag agencies are private companies that provide vehicle licensing and
registration services. “Although tag agencies are run by private individuals, the
services they provide come from, and monies collected go to, the Oklahoma Tax
Commission.” Find a Tag Agent, Oklahoma Tax Commission,
http://www.ok.gov/tax/Individuals/Motor_Vehicle/Find_a_Tag_Agent/ (last modified
July 23, 2018). Tag agencies have a monopoly on driver’s license services in
Oklahoma, which is “the only state that handles driver’s licenses exclusively through
privately owned, state-subsidized businesses.” Jeff Raymond, As State Government
Goes More Digital, Tag Agencies Endure, Oklahoma Watch (May 6, 2019),
http://oklahomawatch.org/2019/05/06/even-with-digital-drivers-licenses-tag-
agencies-likely-to-remain/.
3
probation officer notified the federal district court for the Western District of
Oklahoma that Mr. Donovan had submitted nine methamphetamine-positive urine
samples between November 7, 2018, and March 5, 2019, and had failed to submit a
urine sample as directed four times in the first three months of 2019. As a result,
Mr. Donovan was referred to the Court-Assisted Recovery Effort program (“CARE”).
After some initial success with that program, Mr. Donovan again submitted
methamphetamine-positive urine samples in August and September of 2019.
On October 3, 2019, Detective William Carpenter of the Mustang, Oklahoma
police department (“Mustang PD”) contacted Mr. Donovan’s probation officer.
Detective Carpenter informed the probation officer that Mr. Donovan was a primary
suspect in three Oklahoma tag agency burglaries under investigation by the Mustang
PD—one in May 2019 and two in September 2019. Detective Carpenter told the
probation officer that Mr. Donovan’s vehicle was identified on surveillance video
and in photos from the two September burglaries. From the video, Detective
Carpenter estimated that the primary suspect was around 6’5” tall, which he averred
also pointed to Mr. Donovan, who is 6’7”.
Based on the drug testing violations and the information from Detective
Carpenter, the probation office conducted a search of Mr. Donovan’s residence on
October 10, 2019. The search revealed that Mr. Donovan was using a computer
program to illegally download software. The government’s search of his person
revealed a USB drive containing the personal information of individuals that
Mr. Donovan did not have permission to possess. The government also found illegal
4
drugs in Mr. Donovan’s residence and items indicating drug use. When questioned
about the recent tag agency burglaries by Detective Carpenter, who participated in
the search, Mr. Donovan denied any involvement.
The October search also turned up a check, dated August 21, 2019, and made
out to Mr. Donovan from Vantage Point ITAD, a company whose services include
“safely extracting data from computers which could contain sensitive information.”2
ROA Vol. 2 at 3. Mr. Donovan admitted that he had been working “on the side” for
Vantage Point. Id. Mr. Donovan interviewed with Vantage Point in July 2019, and
his probation officer advised him around that time that she would need to conduct “a
very detailed conversation” with Vantage Point prior to his accepting employment
with the company, given that his past conduct “included accessing a network to steal
people’s personal information.” Id. Mr. Donovan had at that point agreed to remain at
his job at a pallet shipping company and to refrain from pursuing employment at
Vantage Point until he proceeded further in the CARE program.
Following the search, Mr. Donovan’s probation officer instructed him to
continue complying with the mandated drug testing and counseling conditions of his
supervised release. Four days later, on October 14, 2019, Mr. Donovan failed to
report to a required drug counseling session.
2
At oral argument, the government described Vantage Point as “an
information technology asset disposition firm,” which resells businesses’ used
computer hardware after wiping it of any sensitive information. Oral Arg.
at 17:10-17:35.
5
On October 16, 2019, the probation office issued a warrant recommending that
Mr. Donovan’s term of supervised release be revoked, which the district court
approved. Mr. Donovan was taken into custody that same day. The warrant alleged
five violations of the conditions of Mr. Donovan’s supervised release: that he
(1) committed a crime by downloading copyrighted computer software;
(2) committed a crime by possessing the identification of another person without
lawful authority; (3) unlawfully possessed and used a controlled substance; (4) lied to
his probation officer about accepting employment at Vantage Point ITAD; and
(5) failed to report for a substance abuse counseling program as directed.
On October 25, 2019, the probation office issued a violation report explaining
its allegations and its recommendation to revoke Mr. Donovan’s supervised release in
favor of prison time. In a section of the report titled “Adjustment to Supervision,” the
probation office laid out the factual basis for revoking Mr. Donovan’s supervised
release. ROA Vol. 2 at 2–4. Mr. Donovan failed to dispute any of these facts,
including those reported to federal authorities by Detective Carpenter that linked
Mr. Donovan to the recent tag agency burglaries. The report also noted that the drug
offenses alleged in violation #3—possession of a controlled substance and more than
three positive drug tests over the course of a year—subjected Mr. Donovan to
statutorily mandated revocation and imprisonment. See ROA Vol. 2 at 1 (citing
18 U.S.C. §§ 3583(g)(1) and (g)(4)). The conspiracy conviction that resulted in
Mr. Donovan’s term of supervised release led to a statutory maximum revocation
sentence of 24 months. See 18 U.S.C. § 3583(e)(3). Based on the grade of
6
Mr. Donovan’s alleged supervised release violations and his criminal history
category (IV), the probation office calculated an advisory range under the federal
Sentencing Guidelines of 12–18 months. See U.S.S.G. § 7B1.4(a) (term of
imprisonment table for revocation sentences). The probation office, however,
recommended the statutory maximum, 24 months, followed by 12 months of
supervised release.
Mr. Donovan’s revocation hearing took place on October 28, 2019. At the
outset, the government withdrew alleged violation #2, because possessing the
identification of another person without lawful authority is not a crime under federal
or Oklahoma law. Mr. Donovan stipulated to the remaining four violations of the
terms of his supervised release: illegally downloading copyrighted software
(violation #1); using a controlled substance (#3); lying to his probation officer (#4);
and failing to report for drug counseling (#5). Regarding violation #1, however, the
government informed the court that the monetary value of the copyright infringement
at issue led to a lesser offense than calculated by the probation office—a Grade C
violation of the federal criminal code, rather than Grade B. This reduced the
recommended range of imprisonment under Chapter 7’s advisory policy statements
from 12–18 months to 6–12 months. See U.S.S.G. § 7B1.4(a). The government, the
probation office, and Mr. Donovan all concurred in this reduction of the applicable
policy range, to which the district court responded, “All right.” ROA Vol. 3 at 7.
Because Mr. Donovan’s stipulation to four violations of the terms of his
supervised release established a clear basis for revocation, the district court heard
7
from both parties “as to what we ought to do in the circumstances.” Id. at 6.
Mr. Donovan requested his sentencing be continued to allow him to first complete
inpatient drug treatment. The government, after contending that drug treatment had
“not worked” for Mr. Donovan, addressed what it deemed “the elephant in the room”:
what he was doing while on supervised release. Id. at 13. Based on the results of the
October search and the tag agency burglary allegations laid out in the violation
report, the government argued that Mr. Donovan was not “merely out here using
methamphetamine,” but that his conduct was “a lot . . . worse than that.” Id. at 14–15.
The government highlighted the alleged facts that Mr. Donovan’s car was picked up
on video surveillance at the burglarized tag agencies and that “the person who was
actually committing the burglary is described as someone very large, I believe
someone six-four to six-six.” Id. at 14. The government then asked the judge to
impose the maximum sentence of 24 months, in line with the probation office’s
recommendation.
After hearing from both parties, the district court first confirmed with the
government that the Mustang PD’s investigation into the recent tag agency burglaries
had not progressed beyond the preliminary stage. The court then stated that it might
be inclined to take Mr. Donovan’s suggested sentencing approach “if we were here
simply dealing with a matter of violations of the supervised release terms relating to
controlled substances.” Id. at 16. The court found, however, “that the circumstances
here are considerably more serious than that, in terms of the conduct of the
defendant.” Id.
8
Next, the district court discussed the tag agency burglary allegations contained
in the violation report:
There’s at least some indication that this investigation going on relating
to new burglaries of tag agencies, it sounds as though from the
references to tag numbers and that sort of thing that there may be some
substance to that.
Obviously, for present purposes, I’m not going to assume that the
defendant committed that further offense. That’s not what I’m
sentencing for here today, even if I did conclude that. But I think it’s
premature for me to assume that the defendant has, you know, gone
back to the same course of conduct again.
The evidence here I think is sufficient to persuade me that he might be. I
mean, I can’t think of any other reason why he would be downloading
the kind of stuff he was downloading and the sorts of personal
identification information that he apparently had on him and that sort of
thing.
Id. at 16–17.
The district court added a final disclaimer to its discussion of the recent tag
agency burglaries before addressing the violations to which Mr. Donovan stipulated:
[A]s I say, I don’t think it’s appropriate for me to proceed on the
assumption he’s been out bumping off tag agencies. But I do think that
what strikes me as the most serious aspect of the circumstances here,
separate and apart from the drug use, has to do with the violation that,
essentially, said he was lying to the probation officer. It was a very
important thing he was lying about.
At the time he went on supervised release, as I said, it was against the
backdrop of this history of fraudulent activity of accessing information
from employers or others and . . . the violation report indicates that the
probation officer said, look, if you’re going to go to work for this
Vantage Point outfit, we’ve got to make darn sure they know what your
background is because of the potential there for him to be in a position
with a company like Vantage Point where he could access the same
sorts of information.
9
And if we’re going to put him in a position where there’s that kind of a
risk, then, as the violation report indicates, it makes an abundant amount
of sense to make sure that that prospective employer knows the history
and knows explicitly the risk they’re assuming by hiring the defendant.
The defendant says, according to the report here, that he’s going to do
that sometime later . . . , when, in fact, he went ahead and essentially
misrepresented that to the probation officer and went ahead to go to
work for Vantage Point working on the side for them. . . .
[T]hat’s the sort of a breach of confidence, a breach of the necessary
conduct for the supervision relationship to work properly . . . that, in my
view, is a very serious violation here that I think requires a meaningful
response. . . .
[T]he breach of a duty of truthfulness and candor to the probation
officer is a serious enough matter that there needs to be a meaningful
sentence imposed here, and so that’s what I’m going to do.
Id. at 17–18.
The district court then sentenced Mr. Donovan to 18 months of imprisonment
followed by 12 months of supervised release. When Mr. Donovan’s defense counsel
was asked by the court whether, “beyond the matters [he’d] previously noted,” there
was “any reason why the sentences imposed by the Court would be improper,” he
answered in the negative. This appeal followed.
III. DISCUSSION
“When a convicted defendant violates a condition of supervised release, the
sentencing judge may revoke the term of supervised release and impose prison time.”
United States v. Vigil, 696 F.3d 997, 1002 (10th Cir. 2012). “In imposing a sentence
for a violation of supervised release, a district court is required to consider the policy
statements contained in Chapter 7 of the Sentencing Guidelines and a number of
10
factors enumerated in 18 U.S.C. § 3553(a).” United States v. Ortiz-Lazaro, 884 F.3d
1259, 1262 (10th Cir. 2018); see 18 U.S.C. § 3583(e)(3) (“The court may, after
considering the factors set forth in” certain subsections of § 3553(a), “revoke a term
of supervised release” and impose a prison sentence.). “All discussions of applicable
sentences before a district court following the revocation of supervised release should
be grounded in the common understanding that the district court may impose any
sentence within the statutory maximum.” Vigil, 696 F.3d at 1002 (quotation marks
omitted).
“We review all sentences, including those imposed for violations of supervised
release, for reasonableness.” United States v. Rausch, 638 F.3d 1296, 1302 (10th Cir.
2011), overruled on other grounds by United States v. Bustamante-Conchas, 850
F.3d 1130 (10th Cir. 2017) (en banc). “When we review for reasonableness, our
review includes both a procedural component, encompassing the method by which a
sentence was calculated, as well as a substantive component, which relates to the
length of the resulting sentence.” Ortiz-Lazaro, 884 F.3d at 1261 (internal quotation
marks omitted). “[I]mposition 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) (internal quotation marks omitted).
“[A] ‘reasoned’ sentence is one that is ‘procedurally reasonable’; and a ‘reasonable’
sentence is one that is ‘substantively reasonable.’” United States v. McBride, 633
11
F.3d 1229, 1232 (10th Cir. 2011). “To say that the district court acted reasonably—
either procedurally or substantively—is to say that it did not abuse its discretion.” Id.We address in turn Mr. Donovan’s procedural and substantive reasonableness
challenges to his 18-month revocation sentence.
A. Procedural Reasonableness
“Review for procedural reasonableness focuses on whether the district court
committed any error in calculating or explaining the sentence.” United States v.
Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). Procedural errors include “failing
to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall v. United
States, 552 U.S. 38, 51 (2007).
Mr. Donovan argues that his 18-month revocation sentence is procedurally
unreasonable because it was premised on unproven facts contained in the probation
report—namely, uncharged allegations regarding the 2019 tag agency burglaries
under investigation by the Mustang PD. The first hurdle Mr. Donovan faces in
advancing this argument is his failure to object to the district court’s purported
consideration of such unproven, uncharged allegations at the hearing. Specifically,
after the court announced its sentencing decision, Mr. Donovan declined the
opportunity to place in the record any reason why the sentence imposed was
improper. Thus,
12
[i]n this case a sufficient opportunity [to object] was made available. If
[Mr. Donovan] had objections to the sentence imposed or, more
particularly, to the decision-making process, he could and should have
raised them at a time and in such a way as to afford the trial judge an
opportunity to correct any error, clarify any ambiguity or elaborate as
necessary.
See United States v. Steele, 603 F.3d 803, 807 (10th Cir. 2010). Accordingly, we
review his procedural objection only for plain error. See United States v. Ruby, 706
F.3d 1221, 1225–26 (10th Cir. 2013); see also McBride, 633 F.3d at 1233 (reviewing
for plain error when the defendant did not contemporaneously object to the district
court’s consideration of “allegations that had neither been stipulated to, nor proven
by the presentation of evidence” at the revocation hearing).3
3
Mr. Donovan argues that no contemporaneous objection was needed to
preserve the issue for appellate review because “[t]here is no doubt that the district
court was aware of the impropriety of relying on the unproven allegations,” and
therefore objecting “on this basis could hardly have served any purpose.” Appellant
Br. at 13.
In United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir.
2003), we held that
when the district court sua sponte raises and explicitly resolves an issue
of law on the merits, the appellant may challenge that ruling on appeal
on the ground addressed by the district court even if he failed to raise
the issue in district court. In such a case, review on appeal is not for
“plain error,” but is subject to the same standard of appellate review that
would be applicable if the appellant had properly raised the issue.
This rule is based on the principle that “appellate courts can reach issues that were
either ‘pressed’ by the appellant before, or ‘passed upon’ by, the lower court.”
Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 992 (10th Cir. 2019) (quotation
marks omitted). “An appellate court is therefore ‘permit[ed] review of an issue not
pressed so long as it has been passed upon.’” Id. (quoting United States v. Williams,
504 U.S. 36, 41 (1992)). “A court ‘passes upon’ an issue when it applies the relevant
law to the relevant facts.” Id. (internal quotation marks omitted).
13
“Under plain error review, the defendant must demonstrate (1) there is error,
(2) that is plain, (3) which affects substantial rights, and (4) which seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Ruby, 706 F.3d
at 1226. The first element is comprised of two sequential steps—determining whether
the district court committed the claimed error, and if it did, then determining the
subsidiary legal question of whether the court’s action (or omission) actually
constituted error. Here, Mr. Donovan’s challenge fails at the threshold step, because,
contrary to his assertion, the court did not base its sentence upon unproven,
uncharged factual allegations.
To be sure, in addressing what the government called “the elephant in the
room,” ROA Vol. 3 at 13—the uncharged tag agency burglary allegations discussed
in Mr. Donovan’s violation report—the district court did note “that there may be
some substance” to those allegations. Id. at 16. And the court did go on to state that
the evidence was “sufficient to persuade me that [Mr. Donovan] might” have
committed the recent burglaries, because it could not “think of any other reason why
We reject Mr. Donovan’s argument that the plain error standard does not
apply, because the record shows that the district court did not fully pass upon the
issue of whether a sentencing decision can be based partly on unproven, uncharged
allegations in a violation report. But even if we determined that the district court did
directly decide this issue, such a conclusion would be of little help to Mr. Donovan.
That is because the court deemed it inappropriate to base its sentencing decision on
the uncharged allegations, and nothing in the record clearly indicates it ignored its
own conclusion on that front. Cf. United States v. Hernandez-Martinez, 485 F.3d
270, 274 (5th Cir. 2007) (“Ultimately, any difference between the two proffered
standards of review for a revocation sentence would not affect [the defendant’s]
fate.”).
14
he would be downloading the kind of stuff he was downloading and the sorts of
personal identification information that he apparently had on him.” Id. at 16–17.
Standing alone, these statements might well lead us to conclude that the imposition of
Mr. Donovan’s 18-month revocation sentence was based at least in part on these
factual allegations. Cf. United States v. Barbieri, 49 F. App’x 824, 826–27 (10th Cir.
2002) (unpublished) (discussing several “improper” and “questionable” statements
made by a district court “regarding its belief that the defendant might have violated
more terms of his supervised release than his probation officer was aware of”).
These statements, however, did not stand alone, but were accompanied by
several disclaimers. “Obviously,” the district court stated, it was “not going to
assume that the defendant committed that further offense,” because “even if [it] did
conclude” that Mr. Donovan perpetrated any of the uncharged burglaries, “[t]hat’s
not what I’m sentencing for here today.” ROA Vol. 3 at 16. The court also found that
it would be “premature” to assume Mr. Donovan had “gone back to the same course
of conduct,” id.—that is, premature to assume he had returned to burglarizing tag
agencies while on supervised release from a fraud conspiracy conviction that was
grounded in that same pattern of criminal activity. The court then reiterated this
conclusion, stating that “I don’t think it’s appropriate for me to proceed on the
assumption he’s been out bumping off tag agencies.” Id. at 17.
After disclaiming any reliance on the tag agency burglary allegations, the
district court then transparently laid out the conduct upon which it did base its
sentencing decision, stating that “the most serious aspect of the circumstances here,
15
separate and apart from the drug use, has to do with the violation that, essentially,
said he was lying to the probation officer.”4 Id. This referred to warrant
violation #4—that Mr. Donovan was dishonest about his Vantage Point
employment—which was among the violations to which Mr. Donovan stipulated. The
court found that this “was a very important thing he was lying about,” due to “the
potential . . . for [Mr. Donovan] to be in a position with a company like Vantage
Point where he could access the same sorts of [personal] information” that he
misappropriated in furtherance of the bank fraud conspiracy that led to his underlying
conviction. Id. “[I]f we’re going to put [Mr. Donovan] in a position where there’s
that kind of a risk” regarding his illegal conversion of personal identifying
information, the court went on to state, “it makes an abundant amount of sense to
make sure that that prospective employer knows the history and knows explicitly the
risk they’re assuming by hiring the defendant.” Id. But before his probation officer
could have a “very detailed conversation with the employer” to clearly convey that
risk, ROA Vol. 2 at 3, Mr. Donovan began to work for Vantage Point “on the side,”
and “misrepresented that to the probation officer,” ROA Vol. 3 at 18.
The district court left little doubt that it was imposing a sentence based on this
breach of trust, rather than on any factual allegations related to the uncharged tag
agency burglaries. Mr. Donovan’s intentional concealment of his Vantage Point
4
This statement—particularly, the phrase “separate and apart from the
drug use”—suggests that the district court based its sentencing decision only upon
Mr. Donovan’s drug use (stipulated violation #3) and untruthfulness (stipulated
violation #4).
16
employment from his probation officer was “the sort of a breach of confidence, a
breach of the necessary conduct for the supervision relationship to work properly,”
the court determined, that “is a very serious violation . . . requir[ing] a meaningful
response.” Id. The court went on to conclude that this “breach of a duty of
truthfulness and candor to the probation officer is a serious enough matter that there
needs to be a meaningful sentence imposed here.” Id. That meaningful sentence, in
the court’s determination, was 18 months’ imprisonment—above the Chapter 7
advisory policy statement range of 6–12 months, see U.S.S.G. § 7B1.4(a), but below
the government’s request for the 24-month statutory maximum, see 18 U.S.C.
§ 3583(e)(3).
It is thus clear from the record that, despite the district court’s references to the
recent tag agency burglaries, it did not base Mr. Donovan’s revocation sentence on
these factual allegations, even in part. Both the court’s explicit disclaimers that it
would be premature and inappropriate to place any decisional weight on the tag
agency burglary allegations, as well as its significant and repeated emphasis on
Mr. Donovan’s admitted violation of his “duty of truthfulness and candor,” ROA
Vol. 3 at 18, lead to the conclusion that the government’s presentation of the tag
agency burglary evidence did not “help[] sway [the] sentencing decision,” contrary to
Mr. Donovan’s assertion. See Appellant Br. at 11. As such, the court did not act in
the way Mr. Donovan claims constitutes procedural error.
Because we determine that the district court did not procedurally err under the
first element of plain-error review, we need not analyze the remaining elements. See
17
United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012) (“Because all four
[plain error] requirements must be met, the failure of any one will foreclose relief and
the others need not be addressed.”).5
B. Substantive Reasonableness
“Review for substantive reasonableness focuses on whether the length of the
sentence is reasonable given all the circumstances of the case in light of the factors
set forth in 18 U.S.C. § 3553(a).” Friedman, 554 F.3d at 1307. In the context of
revocation sentencing based on a violation of supervised release, those factors
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 effective manner; pertinent
guidelines; pertinent policy statements; the need to avoid unwanted
sentence disparities; and the need to provide restitution.
United States v. Contreras-Martinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005); see
18 U.S.C. § 3583(e) (calling for consideration of these § 3553(a) factors prior to
5
Additionally, because we determine that the district court did not rely on the
uncharged burglaries in imposing its sentence, we pass no judgment on the subsidiary
legal question of whether such reliance would actually amount to procedural error.
We note, however, that Mr. Donovan did not dispute any of the factual findings
presented in the presentence investigation report. “At sentencing, the court may
accept any undisputed portion of the presentence report as a finding of fact.” Fed. R.
Crim. P. 32(i)(3)(A). Furthermore, “at a sentencing hearing the court can have access
to any relevant information, as long as it adheres to a preponderance of the evidence
standard.” United States v. Ruby, 706 F.3d 1221, 1227 (10th Cir. 2013). And an
undisputed statement can satisfy the preponderance of the evidence standard in the
absence of contrary evidence. See United States v. Tindall, 519 F.3d 1057, 1064
(10th Cir. 2008).
18
revocation of a term of supervised release and imposition of a sentence). The district
court “is not required to consider individually each factor listed in § 3553(a), nor is it
required to recite any magic words to show us that it fulfilled its responsibility to be
mindful of the[m].” Steele, 603 F.3d at 808. Rather, “it is enough if the district court
considers § 3553(a) en masse and states its reasons for imposing a given sentence.”
United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004); see 18 U.S.C.
§ 3553(c).
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall, 552 U.S. at 51. “This standard applies without regard to whether the
district court imposes a sentence within or outside the advisory Guidelines range.”6
Steele, 603 F.3d at 809. While a revocation sentence within the Chapter 7 advisory
policy range is presumptively reasonable, see McBride, 633 F.3d at 1232–33, a
sentence outside that range is not presumptively unreasonable, see Gall, 552 U.S.
at 51. The appellate court
may consider the extent of the deviation, but must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance. The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.
Id.
6
While Mr. Donovan did not object below to the length of his sentence, “when
the claim is merely that the sentence is unreasonably long, we do not require the
defendant to object in order to preserve the issue.” United States v. Torres-Duenas,
461 F.3d 1178, 1183 (10th Cir. 2006).
19
Mr. Donovan asserts that the district court’s upward variance from the Chapter 7
policy statement range was largely based on the unproven tag agency burglary
allegations, and was therefore substantively unreasonable. He argues that the court
should have instead “sentenced him based solely on the conduct admitted”—“namely
that he had used drugs, failed to appear for treatment, downloaded copyrighted
software and was working at undisclosed employment.” Id. But as discussed in
relation to procedural reasonableness, the record reveals that the court did sentence
Mr. Donovan based solely on the conduct admitted. Specifically, it based the
sentence in large part on Mr. Donovan’s admitted untruthfulness to his probation
officer regarding his unauthorized employment at Vantage Point.
Placing such heavy emphasis on this “breach of a duty of truthfulness and
candor to the probation officer,” ROA Vol. 3 at 18, is in accord with Chapter 7’s
policy statements, which are among the § 3553(a) factors required to be considered
when imposing a revocation sentence. See 18 U.S.C. § 3583(e). The United States
Sentencing Commission
debated two different approaches to sanctioning violations of probation
and supervised release. The first option considered a violation resulting
from a defendant’s failure to follow the court-imposed conditions of
probation or supervised release as a “breach of trust.” . . . The second
option . . . sought to sanction violators for the particular conduct
triggering the revocation as if that conduct were being sentenced as new
federal criminal conduct. . . . [T]he Commission adopted an approach
that is consistent with the theory of the first option; i.e., at revocation
the court should sanction primarily the defendant’s breach of trust . . . .
U.S.S.G. Ch. 7, Pt. A, 3(b); see Contreras-Martinez, 409 F.3d at 1241 (“The
violation of a condition of supervised release is a breach of trust and, while the
20
sentencing court at revocation takes into account the seriousness of the underlying
crime, it is primarily the breach of trust that is sanctioned.”).
Here, the district court hewed closely to this guidance in imposing Mr.
Donovan’s revocation sentence, by primarily sanctioning Mr. Donovan for lying to
his probation officer about his employment, “the sort of a breach of confidence, a
breach of the necessary conduct for the supervision relationship to work properly, . . .
[that] requires a meaningful response.” ROA Vol. 3 at 18. While the Sentencing
Commission’s favored approach treats any violation of the conditions of supervised
release as a breach of trust, it is reasonable to treat a violation that itself amounts to
untruthfulness in dealing with a probation officer as “a very serious” breach of trust,
as the district court did here. Id. Thus, although the court did not specifically
reference Chapter 7’s policy statements, it is evident that it considered them. See
United States v. Lee, 957 F.2d 770, 775 (10th Cir. 1992) (“[A]lthough the court did
not specifically reference” the revocation sentencing table, “it is evident that the
court considered the provisions of U.S.S.G. Ch. 7.”).
This court has recognized the reasonableness of a similar approach to revocation
sentencing. In United States v. Vigil, the defendant received a revocation sentence of
12 months, above the 3- to 9-month range recommended by the Chapter 7 policy
statements. 696 F.3d at 1001. The defendant admitted a “propensity to misstate the
truth” during her term of supervised release, and the district court, in deciding to
impose a sentence above the recommended range, emphasized that she “lie[d] on
every single event that’s in this violation report.” Id. at 1001–02. We consequently
21
rejected the defendant’s argument that her sentence was substantively unreasonable,
while highlighting Chapter 7’s directive that the court should primarily sanction the
defendant’s breach of trust. Id. at 1003. See also Steele, 603 F.3d at 806, 809(rejecting a substantive reasonableness challenge to an 18-month revocation
sentence, where the Chapter 7 policy range was 4–10 months, based on the
defendant’s breach of trust); Lee, 957 F.2d at 771, 775 (rejecting a substantive
reasonableness challenge to a 24-month revocation sentence, where the Chapter 7
policy range was 3–9 months, while noting that the district court “recited the nature
and circumstances of the offense by which defendant breached the trust of the
court”).
Furthermore, “a court does not need to find severe or exceptional circumstances
to impose a sentence above the range suggested in the Chapter 7 policy statements,
which are not mandatory and even less compelling than established Guidelines.”7
Vigil, 696 F.3d at 1002–03; see also Contreras-Martinez, 409 F.3d at 1240 (“[T]he
Chapter 7 provisions dealing with violations of supervised release . . . merely
constitute ‘advisory’ policy statements.”). The district court thus did not abuse its
discretion by imposing a revocation sentence six months above the top of the
Chapter 7 advisory range, but six months below the statutory maximum, based
7
The United States Sentencing Commission “faced a choice between
promulgating guidelines or issuing advisory policy statements for the revocation of
probation and supervised release.” U.S.S.G. Ch. 7, Pt. A, 3(a). The Commission
opted “to promulgate policy statements only,” id. at 1, which “provide[] greater
flexibility to both the Commission and the courts,” id. at 3(a). See also United States
v. Redcap, 505 F.3d 1321, 1323 (10th Cir. 2007).
22
primarily on a violation of supervised release that it reasonably characterized as a
serious breach of trust.
In sum, the district court’s imposition of an 18-month sentence was neither
substantively unreasonable nor plainly procedurally unreasonable.
IV. CONCLUSION
For these reasons, we AFFIRM the 18-month revocation sentence imposed by
the district court on Mr. Donovan.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
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