United States v. Dogans , 238 F. App'x 359 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 25, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-6313
v. (W . D. Oklahoma)
RO NDALE LEO N DOGANS, (D.C. No. 02-CR-151-M )
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Rondale Leon Dogans pleaded guilty in the United States District Court for
the W estern District of Oklahoma to a charge of access-device fraud, see
18 U.S.C. § 1029(a), and was sentenced on June 4, 2003, to 15 months’
imprisonment followed by three years’ supervised release. He was released from
prison on July 1, 2004, and began his term of supervised release. On
September 12, 2006, the probation office filed a petition alleging several
*
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violations of his conditions of release. At the hearing on September 20, the
district court found that M r. Dogans had violated the terms of his supervised
release, revoked his term of supervision, and sentenced him to two years’
imprisonment, the statutory maximum. See 18 U.S.C. § 3583(e)(3) (maximum
term for Class D felonies); § 3559(a)(4) (definition of Class D felony). On appeal
M r. Dogans argues that the district court’s sentence was unreasoned and
unreasonable. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.
Before revocation of M r. Dogans’s supervised release, the terms of that
release had been modified twice. A few weeks after he was placed on supervised
release, the district court reduced his restitution payments from $1,397 to $350
per month because of his inability to pay the higher sum. In October 2005, about
16 months after his supervised-release term began, he tested positive for
marijuana use and was confined to home detention for 90 days.
The September 2006 petition alleged that M r. Dogans had violated his
conditions of release by (1) committing crimes; (2) failing to abstain from the use
of alcohol; (3) failing to notify his probation officer within 72 hours of being
arrested or questioned by a law -enforcement officer; (4) failing to submit
complete and truthful written reports to his probation officer within the first five
days of each month; (5) failing to answer truthfully all inquiries by his probation
officer; (6) failing to participate in a program of substance-abuse aftercare, as
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directed by his probation officer; and (7) failing to pay restitution in accordance
with the criminal judgment against him.
The allegations were based on the following episodes: On January 18,
2006, M r. Dogans was issued citations by the Oklahoma H ighway Patrol for
failing to carry proof of liability coverage and for operating a vehicle without a
license. He failed to report these citations to his probation officer. His probation
officer learned of the citations and verbally reprimanded M r. Dogans on
M arch 27, 2006, for this failure. On June 21, 2006, the probation officer learned
that M r. Dogans had failed to report a M arch 6 citation for a seat-belt violation,
even after having been verbally reprimanded on M arch 27 for a similar failure.
On July 3 M r. Dogans denied to his probation officer that he had failed to report
the M arch 6 citation.
On July 21 and August 21, 2006, M r. Dogans failed to report for required
random drug tests. On August 4 he was arrested by Oklahoma City police
officers after allegedly vandalizing private property at an apartment complex.
The victims reported that M r. Dogans threw an object through their sliding-glass
door and painted a profane statement on their front door. M r. Dogans’s breath
had an odor of alcohol and he appeared to have been drinking. M r. Dogans had
previously been questioned by police officers in June 2006 regarding a separate
incident of property destruction. But at a meeting with his probation officer on
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August 18, he denied having had any contact with law -enforcement officers in
June.
M r. Dogans also failed to make required restitution payments several times
during his supervised release. He made no payments from January through M ay
2006. On August 3, 2006, after being informed that his failures to pay had been
reported to the court, he called his probation officer to say that he had mailed a
$300 payment the previous day. To document the payment, he submitted a
money-order receipt to his probation officer. Upon investigation by the probation
officer, however, the receipt was determined to be for M r. Dogans’s rent, not a
restitution payment.
The district court found by a preponderance of the evidence that the
allegations in the petition were true. M r. Dogans requested that his supervised
release not be revoked but argued in the alternative that the applicable sentencing
range for his violations was 5-11 months’ imprisonment under Chapter 7 of the
United States Sentencing Guidelines (U SSG). The district court sentenced him to
two years’ imprisonment.
The district court noted the large number and severity of the offenses
charged in the petition, including numerous law-enforcement contacts and
M r. Dogans’s destruction of private property. It emphasized his failure to make
his restitution payments despite the modification in the amount owed and the
extreme efforts by his codefendant to make her own restitution payments. And it
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described as “outrageous” M r. Dogans’s attempt to deceive his probation officer
with a money-order receipt. R. Vol. 2 at 42. Given the number of violations
outlined in the petition, and the failure of previous modifications to affect
M r. Dogans’s behavior, the court described him as “not supervisable.” Id. It
further stated that a sentence of two years’ imprisonment was appropriate because
it would permit M r. Dogans to receive drug-rehabilitation treatment.
M r. Dogans does not contest the findings of the district court, only his
sentence. H e contends on appeal that it is unreasoned and unreasonable. He
argues that the district court failed to properly consider Chapter 7’s suggested
sentence of 5-11 months’ imprisonment, or the factors in 18 U.S.C. § 3553(a).
W e reject these arguments.
USSG Chapter 7 addresses sentencing for violations of conditions of
release. Like the Guidelines provisions for sentencing upon conviction of a
crime, Chapter 7 provides a sentencing range based on the severity of the
violation and the offender’s criminal history. The ranges appear in USSG
§ 7B1.4(a), w hich has always been a “policy statement” rather than a “guideline.”
See United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996); United States v.
Hurst, 78 F.3d 482, 483 (10th Cir. 1996). The district court must consider the
Chapter 7 policy statements when imposing sentence, see United States v. Kelley,
359 F.3d 1302, 1304–05 (10th Cir. 2004); but we will not disturb a sentence in
excess of the Chapter 7 range “if it can be determined from the record to have
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been reasoned and reasonable.” United States v. Tedford, 405 F.3d 1159, 1161
(10th Cir. 2005) (internal quotation marks omitted).
M r. Dogans’s sentence was reasoned and reasonable. That M r. Dogans
disagrees with the district court’s explanation does not make it unreasoned.
Perhaps one error was the district court’s failure to mention Chapter 7. But “even
failure to consider Chapter 7 policy statements when sentencing after revocation
of supervised release is harmless error w hen the sentence is clearly reasonable
and justified.” United States v. Lee, 957 F.2d 770, 775 (10th Cir. 1992).
The relevant factors set forth in 18 U.S.C. § 3553(a) are: “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.” Kelley, 359 F.3d at 1304. In our view, the sentence was
clearly reasonable and justified in light of these factors.
W e A FFIR M the sentence below.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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