                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 4, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-3180
 v.                                          (D.Ct. No. 5:05-CR-40009-JAR-1)
                                                          (D. Kan.)
 MARC SHEA,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Defendant Marc Shea appeals his sentence following revocation of his


      *
         This order and judgment is not binding precedent except under the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.
supervised release. He asserts the district court abused its discretion in imposing

a sentence above the advisory United States Sentencing Guidelines (“Guidelines”

or “U.S.S.G.”) range which he claims resulted in a procedurally and substantively

unreasonable sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291 and affirm Mr. Shea’s twenty-four-month term of

imprisonment following revocation of his supervised release.



                             I. Procedural Background

      On February 23, 2005, a federal jury charged Mr. Shea with possessing

child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). After he pled

guilty, the district court sentenced him to fifty-five months imprisonment and

three years supervised release premised on general and special conditions of

supervision. Mr. Shea’s term of supervised release began on July 6, 2009.



      On May 16, 2012, after at least three modifications to the conditions of Mr.

Shea’s supervised release based on his conduct, 1 Mr. Shea’s probation officer

      1
         On August 20, 2009, the district court ordered modification of the
conditions of Mr. Shea’s supervised release to include participation in an
approved program for substance abuse: (1) after Mr. Shea admitted to drinking
alcohol on five or six occasions while on supervised release, despite his chronic
history of alcohol misuse; and (2) based on his possession of sexually explicit
material on at least two occasions during his supervised release. On April 12,
2010, the district court also ordered modification of the conditions of Mr. Shea’s
supervised release to include his living at a residential re-entry center program as
                                                                        (continued...)

                                         -2-
petitioned the district court to revoke Mr. Shea’s supervised release, alleging he

failed to comply with a variety of ordered conditions, including the requirement

he participate in a sex offender treatment program from which he was discharged

for noncompliance. 2 The probation officer also alleged Mr. Shea violated a

condition requiring him not to possess or have under his control any material

depicting sexually explicit conduct involving adults or minors, child pornography,

or visual depictions of minors engaged in sexually explicit conduct–all defined in

18 U.S.C. § 2256. According to the probation officer, Mr. Shea violated this

condition, in part, by: (1) possessing a pornographic DVD and two pornographic

magazines; and (2) admitting to possessing two pornographic magazines, visiting

pornographic websites, viewing underage images and a pornographic magazine,

      1
        (...continued)
a result of “ongoing issues with [Mr. Shea’s] self-management.” One year later,
on March 8, 2011, the district court again modified the conditions of his
supervised release, requiring Mr. Shea to submit his person, house, residence,
vehicles, papers, business or place of employment, and any property under his
control to a search by a probation officer based on reasonable suspicion of
contraband or evidence of a violation of the condition of release. The
modification stemmed from the probation officer’s prior unannounced home
contact at Mr. Shea’s residence where Mr. Shea consented to a search resulting in
discovery of a video which Mr. Shea admitted contained pornography, in
violation of his supervised release.
      2
        This sex offender treatment program condition required submission to
periodic polygraph testing to determine compliance, and in that regard, the
probation officer alleged Mr. Shea failed polygraphs on February 17, 2010,
September 26, 2011, and May 2, 2012, regarding whether he viewed any
pornographic images. Later, at the revocation hearing, the government indicated
it would not “weigh heavily on the polygraph results” and, instead, submitted
other evidence in support of Mr. Shea’s violations.

                                         -3-
and finding some pornographic literature. Finally, the probation officer alleged

Mr. Shea violated the condition requiring him to abstain from the use of alcohol

during his supervised release when he admitted consuming alcohol on various

occasions from August 13, 2009, through February 1, 2010, and tested positive

for the presence of alcohol on February 20, 2010, which Mr. Shea attributed to

Nyquil cold medication.



      Thereafter, the district court conducted a hearing on the petition to revoke

Mr. Shea’s supervised release, during which the government provided

overwhelming, incriminating evidence in support of its allegations that he

violated the conditions of his supervised release. Its evidence included the

testimony of two of Mr. Shea’s probation officers, the actual pornographic DVD

and magazines found in Mr. Shea’s possession, and a computer monitoring report

showing he viewed youthful adult pornography on multiple occasions on websites

with names including words like “young,” “teen,” “youngest,” and “teenies.”



      Mr. Shea testified on his own behalf, explaining he purchased pornography

toward the end of his supervised release out of “frustration” caused, in part, by

the fact he was grouped with actual child contact offenders during counseling; he

also admitted purchasing pornography with the very money he intended to use to

pay for his counseling class, stating he lacked the “skill set ... to say this is

                                           -4-
wrong,” and that he “acted out.” He also admitted to acting out in using his

computer to go to websites with sexually explicit adult images and did not dispute

those websites had names such as youngporn.net and youngteensonly.com.



      Mr. Shea also provided a copy of the psychological evaluation conducted

by his licenced psychologist which noted Mr. Shea’s own admission his initial

exposure to child pornography occurred when he was in a period of emotional

distress and browsing through standard adult pornography. However, the

psychologist also generally noted “there is no evidence that use of internet child

pornography leads to contact sexual offenses involving children,” “[s]tatistical

risk studies indicate a very low probability of recidivism (five percent or less) for

Internet sexual offenders with no history of contact offenses,” and that Mr. Shea

presented a “moderate risk” “which may be addressed in individual therapy.”



      After considering and carefully outlining the evidence provided, including

Mr. Shea’s own admissions, the district court found Mr. Shea violated the

conditions of his supervised release. In thoroughly discussing Mr. Shea’s

violations, the district court first credited Mr. Shea with controlling his substance

abuse over the last two years, even though he initially violated the conditions of

his supervised release by using alcohol. However, with respect to the

pornography-related violations, the district court expressed its belief Mr. Shea did

                                          -5-
not understand he had an addiction to child pornography, was “totally

unaccepting” of the fact he had to stay away from pornography, and had

minimized the gravity of what he did. In support, it recounted Mr. Shea’s

incriminating testimony he acted out in buying pornography and that he viewed it

online based on certain frustrations. The district court stated its belief that as

long as Mr. Shea continued to engage in viewing adult pornography, the potential

existed he would again engage in the illegal conduct of viewing child

pornography, making “the risk of recidivism ... high.” 3 It also commented on the

fact Mr. Shea had not been “amenable to supervision with respect to ...

pornography” violations, the probation office had “exhausted its resources,” and

that, other than his progress with his alcohol abuse, Mr. Shea had made no further

progress under the sex offender program than at the time of his supervised release

and merely presented “a lot of excuses and justification[s]” for his lack of

progress.



      After finding Mr. Shea violated his supervised release, the district court

noted the advisory Guidelines range was five to eleven months, while 18 U.S.C.

§ 3583(e)(3) allows for up to two years of custody. It then announced its intent to


      3
        The district court also expressed its concern over the possibility that one
who engages in addictive behavior in viewing child pornography “will act on
those desires,” even though the professional that Mr. Shea presented “seem[s] to
think Mr. Shea won’t act on this.”

                                          -6-
impose a “tentative” sentence of two years custody with no supervised release,

stating it had considered the nature and circumstances of Mr. Shea’s violations,

his characteristics, the sentencing objectives required by statute, and the

“advisory nonbinding Chapter 7 policy statements.” In addressing these points,

the district court explained, in part: (1) it and the probation office had “gone as

far as we can go in supervising Mr. Shea,” (2) “deterrence [was] ... one of the

heaviest factors,” and (3) its belief that “even one-on-one counseling” would not

deter Mr. Shea from participating in this pornographic conduct or finding some

justification for it, including using “frustration” as an excuse and dealing with

frustration by engaging in violative conduct. It also found Mr. Shea was “not

amenable to supervision,” “[t]he compulsive nature of his continued violations

present[ed] an increased risk to the community,” and a two-year sentence would

“afford Mr. Shea time to consider his violations and plan for the future while

reviewing strategies that he’s been taught in both the substance abuse and sex

offender treatment programs.”



      After hearing statements from both Mr. Shea and his counsel in objection to

the tentative sentence, the district court stated it had not changed its mind,

revoked his supervised release, and imposed a final sentence of twenty-four

months imprisonment. In announcing the final sentence, it again surmised Mr.

Shea had received three years of treatment which never progressed past the first

                                          -7-
level, illustrated a lack of motivation and reluctance to participate in group

counseling, showed addictive behavior, and indicated a high risk of recidivism

with regard to child pornography despite three years of counseling.



                                   II. Discussion

      On appeal, Mr. Shea contends the district court imposed a procedurally and

substantively unreasonable sentence by imposing the statutory maximum sentence

of twenty-four months, rather than a sentence within the advisory Guidelines

range of five to eleven months. The government opposes the appeal.



      Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583, when

a person violates the conditions of supervised release, the district court may

modify the conditions of release or, as in this case, revoke the term of supervised

release and impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304

(10th Cir. 2004); 18 U.S.C. § 3583(e)(2), (3); Fed. R. Crim. P. 32.1(b); U.S.S.G.

§ 7B1.3(a). In imposing a sentence following revocation of supervised release,

the district court is required to consider both the Guidelines Chapter Seven policy

statements as well as the factors provided in 18 U.S.C. § 3553(a). See United

States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). The Chapter Seven

policy statements apply to violations of probation and supervised release and

include advisory guideline ranges for sentences following revocation of

                                         -8-
supervised release. See generally U.S.S.G. Ch. 7 and §§ 7B1.3, 7B1.4. With

respect to the sentencing factors, they include not only “the nature of the offense”

but the history and “characteristics of the defendant, as well as the need for the

sentence to reflect the seriousness of the crime, to provide adequate deterrence, to

protect the public, and to provide the defendant with needed training or treatment

....” United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006); 18 U.S.C.

§ 3553(a). The court may, after considering the factors set forth in § 3553(a)(1)-

(7), “revoke a term of supervised release, and require the defendant to serve in

prison all or part of the term of supervised release authorized by statute for the

offense ....” 18 U.S.C. § 3583(e)(3). In this case, § 3583 authorizes the district

court to order a maximum sentence of two years in prison for his Class C felony.

See 18 U.S.C. § 3583(e)(3).



      To revoke a term of supervised release, the district court must find by a

preponderance of the evidence the defendant violated a condition of that release.

See 18 U.S.C. § 3583(e)(3); United States v. Disney, 253 F.3d 1211, 1212-13

(10th Cir. 2001). As the trier of fact in a revocation proceeding, the district court

has the exclusive function of appraising the credibility of the witnesses,

determining the weight to give their testimony, and resolving any conflicts in the

evidence. See United States v. Leach, 749 F.2d 592, 600 (10th Cir. 1984).

Generally, we will not reverse a sentence following revocation of supervised

                                         -9-
release if the record establishes the sentence is “reasoned and reasonable.”

United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005). Our

appellate review for reasonableness includes both a procedural component as well

as a substantive component, which we review for abuse of discretion. See United

States v. Ruby, ___ F.3d ___, 2013 WL 323216, at *2 (10th Cir. Jan. 29, 2013)

(slip op.). We review the district court’s factual findings for clear error and its

legal conclusions de novo. Id. However, in instances, like here, where objections

to procedural reasonableness are not contemporaneously raised, we review them

for plain error. Id. at *3.



      “Procedural reasonableness addresses whether the district court incorrectly

calculated or failed to calculate the Guidelines sentence, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous

facts, or failed to adequately explain the sentence.” United States v. Huckins, 529

F.3d 1312, 1317 (10th Cir. 2008). On the other hand, “[a] challenge to the

sufficiency of the § 3553(a) justifications relied on by the district court implicates

the substantive reasonableness of the resulting sentence.” United States v. Smart,

518 F.3d 800, 804 (10th Cir. 2008).



                              A. Procedural Reasonableness

      In arguing his sentence is procedurally unreasonable, Mr. Shea contends the

                                          -10-
district court: (1) relied on unsupported factual findings and failed to explain the

reasons for the variant sentence, (2) relied on an impermissible factor by

concluding his viewing and possession of adult pornography increased his risk of

viewing child pornography, and (3) gave undue weight to his original child

pornography offense and his possession of adult pornography while failing to

sufficiently consider his psychologist’s mitigating evaluation and the fact that

viewing adult pornography is not as serious a violation of his supervised release

as viewing child pornography.



      As previously indicated, we review Mr. Shea’s procedural reasonableness

argument for plain error because he did not raise it before the district court.

Under our plain error review, Mr. Shea must demonstrate: (1) there is an error;

(2) that is plain; (3) which affects his substantial rights; and (4) which seriously

affects the fairness, integrity, or public reputation of judicial proceedings. 4 See

Ruby, 2013 WL 323216, at *3. To establish an error as “plain,” Mr. Shea must

establish the error was “clear or obvious.” See United States v. Thornburgh, 645

F.3d 1197, 1207-08 (10th Cir.), cert. denied, 132 S. Ct. 214 (2011). To show the

alleged error affected a substantial right, he must show the error was


      4
         These elements are conjunctive and only “[i]f all four prongs are
satisfied, may [we] then exercise our discretion to notice the forfeited error.”
United States v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10th Cir. 2004) (internal
quotation marks omitted).

                                         -11-
“prejudicial,” so that the error “must have affected the outcome of the district

court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). Stated

another way, he must show “a reasonable probability that, but for the error

claimed, the result of the proceeding would have been different.” United States v.

Dominguez Benitez, 542 U.S. 74, 81-82 (2004) (internal quotation marks omitted).

As to the fourth prong, in order to show the error seriously affected the fairness,

integrity, or public reputation of the judicial proceedings, Mr. Shea must

demonstrate that a failure to correct the alleged error would result in a

“miscarriage of justice.” See United States v. Gonzalez-Huerta, 403 F.3d 727,

736 (10th Cir. 2005). One can establish such an error by demonstrating “a strong

possibility of receiving a significantly lower sentence” absent the error. United

States v. Meacham, 567 F.3d 1184, 1190 (10th Cir. 2009) (internal quotation

marks omitted).



      Beginning with Mr. Shea’s argument the district court relied on

unsupported factual findings in imposing his sentence, the government admits,

and the record shows, the district court mis-characterized evidence when it found

Mr. Shea admitted in August 2010 to both viewing and having an interest in

pornography when, instead, conflicting evidence existed on whether Mr. Shea

actually admitted to the probation officer on August 23, 2010, that he had viewed

pornography, and other evidence established they only talked “about his interest

                                         -12-
in child pornography at that time,” in which he apparently denied having an

interest. However, our review of the record shows that all of the district court’s

other findings of fact concerning Mr. Shea’s violations of his supervised release

are clearly and overwhelmingly supported by the record. 5



        As a result, with the exception of one finding among a plethora of others,

the record overwhelmingly supports the district court’s findings of fact showing

Mr. Shea violated the conditions of his supervised release on numerous occasions.

Thus, while the district court made one finding in error, which was plain, it did

not affect Mr. Shea’s substantial rights, as he has not shown either “a reasonable

probability that, but for the error claimed, the result of the proceeding would have

been different,” Dominguez Benitez, 542 U.S. at 81-82, or “a strong possibility of

receiving a significantly lower sentence,” absent the error, Meacham, 567 F.3d at

1190.



        5
         These include Mr. Shea’s: (1) admission in August 2009 to finding and
keeping graphic pornography, consuming alcohol on several occasions, and
receiving an erotic massage; (2) failure to report for drug and/or alcohol testing
on at least three occasions; (3) testing positive for alcohol on February 20, 2010;
(4) admission, when approached in December 2009, to drinking alcohol and
visiting pornographic websites with youthful names; (5) admission in April 2010
to looking at similar websites; (6) failure on August 24, 2010, to report for sex
offender treatment; (7) possession on February 7, 2011, of a pornographic DVD;
(8) admission on May 2, 2011, to having pornographic magazines at work which
officers later found in a trash bag; and (9) discharge from his sex-offender
treatment program for failing to “progress.”

                                         -13-
      In addition, the district court did not fail to adequately explain the reason

for imposing Mr. Shea’s variant sentence. Rather, it thoroughly and repeatedly

explained the reasons for the twenty-four-month sentence it imposed. We also

reject Mr. Shea’s argument the district court relied on an impermissible factor by

concluding his viewing and possession of adult pornography increased his risk of

viewing child pornography. This assessment was based on legally permissible

factors related to his prior offense and personal characteristics and history. Thus,

while his psychologist generally stated studies indicate a very low probability of

recidivism for internet sexual offenders with no history of sexual contact and

assessed Mr. Shea as a moderate risk, the evidence presented at the hearing also

established Mr. Shea admitted to the same psychologist that he began viewing

child pornography after both viewing adult pornography and becoming frustrated

with an event in his life. Given he made similar admissions at his hearing, stating

he viewed pornography during his supervised release as a means to vent his

frustration and for the purpose of acting out, one could reasonably conclude that

the very conditions that initially caused Mr. Shea to view child pornography

existed during his supervised release, and therefore, the potential existed he

would again engage in the illegal conduct of viewing child pornography. This

conclusion is bolstered by the fact Mr. Shea not only viewed adult pornography,

but on multiple occasions viewed internet websites which contained youthful

names or titles, thereby supporting the district court’s belief such a potential

                                         -14-
existed and the risk of recidivism was high.



      As a result, based on this evidence and the reasonable inferences therein,

we cannot say the district court acted unreasonably in concluding Mr. Shea’s

conduct, including his prior offense and personal and criminal history, increased

his risk of viewing child pornography beyond the general statistical risk

assessments cited by the psychologist. Because the nature of his instant offense

and his personal and criminal history are all enumerated § 3553(a) factors, rather

than legally erroneous factors, the district court did not commit an error, plain or

otherwise, in their consideration or otherwise impose a procedurally unreasonable

sentence. Finally, as to Mr. Shea’s argument on the improper weight given some

of the 18 U.S.C. § 3553(a) sentencing factors, he raises the same argument with

respect to the substantive reasonableness of his sentence, which we address

hereafter.



                          B. Substantive Reasonableness

      Mr. Shea argues his sentence is substantively unreasonable because district

court erred in balancing the 18 U.S.C. § 3553(a) factors by giving: (1) “undue

weight to [his] original offense”; (2) “overwhelming importance” to his viewing

and possession of adult pornographic magazines, which he claims is not as serious

as illegal child pornography; (3) “short shrift” to his psychologist’s evaluation

                                         -15-
internet sexual offenders generally present a very low probability of recidivism

and he presented a “moderate risk priority”; and (4) too little weight to other

factors, such as the fact he committed no new crimes while on supervised release

and admitted his transgressions to the probation officer.



      As previously noted, a challenge to the sufficiency of the § 3553(a)

justifications relied on by the district court implicates the substantive

reasonableness of the resulting sentence. Smart, 518 F.3d at 804. In reviewing

the substantive reasonableness of a sentence, “[w]e may not examine the weight a

district court assigns to various § 3553(a) factors, and its ultimate assessment of

the balance between them,” 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.”

Id. at 808 (internal quotation marks omitted). “Although the degree of variance

from the Guidelines range remains a consideration on appeal, it may not define

our threshold standard of review.” Id. at 807 (internal citation omitted). In

addition, we do not require the § 3553(a) factors “reach some specific level of

evidentiary weight,” and “although a district court must provide reasoning

sufficient to support the chosen variance, it need not necessarily provide

‘extraordinary’ facts to justify any statutorily permissible sentencing variance.”

Id.




                                         -16-
      In this case, the district court imposed a statutorily permissible sentencing

variance, imposing a twenty-four-month sentence, as permitted by 18 U.S.C.

§ 3583(e)(3). In so doing, it provided sufficient reasoning for such a variance,

and it is evident it considered both the requisite § 3553(a) sentencing factors as

well as the Chapter Seven policy statements, including the advisory Guidelines

range. See generally U.S.S.G. Ch. 7 and §§ 7B1.3, 7B1.4. In varying upward

from the five- to eleven-month imprisonment range set out in Chapter Seven, the

district court considered Mr. Shea’s prior offense and history and characteristics,

including his repeated violations of the conditions of his supervised release. It

not only considered his cumulative conduct of non-compliance with the terms of

his supervised release, but Mr. Shea’s own testimony, when it determined he did

not understand he had an addiction to child pornography, did not accept the fact

he had to refrain from pornography, and had minimized the gravity of what he

did. We will not review on appeal the district court’s credibility determinations

applied in regards to the sufficiency of its § 3553(a) justifications. See United

States v. Hanson, 534 F.3d 1315, 1319 (10th Cir. 2008).



      Moreover, as the government contends and we have already indicated, the

district court could reasonably infer, through Mr. Shea’s repeated online access to

youthful genre adult pornography, that his interest in child pornography had not

abated. In addition, it also considered and weighed conflicting evidence

                                         -17-
presented at the revocation hearing, including Mr. Shea’s psychologist’s general

observation he presented only a moderate risk and could benefit from individual

therapy, and determined, instead, based on the other evidence presented, that the

potential existed he would again engage in the illegal conduct of viewing child

pornography and that one-on-one counseling would not deter him from it. As

previously discussed, the district court has the exclusive function of resolving any

evidentiary conflicts, and we may not examine its ultimate assessment of the

balance between the sentencing factors but give due deference to its decision that

the § 3553(a) factors, on a whole, justify the extent of the variance.



      In sum, the district court’s explanation for a variant sentence following

revocation was sufficiently compelling to support the degree of the variance and

we are satisfied it considered the parties’ arguments and had a reasoned basis for

the variance. The sentence on revocation of supervised release is “reasoned and

reasonable,” Contreras-Martinez, 409 F.3d at 1241, and Mr. Shea has not

otherwise demonstrated it is substantively unreasonable for the purpose of

warranting reversal on appeal.




                                         -18-
                                III. Conclusion

      Accordingly, we AFFIRM Mr. Shea’s twenty-four-month term of

imprisonment following revocation of his supervised release.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




                                      -19-
