                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 3, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-6137
          v.                                           (W.D. Oklahoma)
 RICO LAMAR THREATT,                            (D.C. No. CR-03-00192-HE-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


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



      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); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Rico Lamar Threatt appeals from the imposition of

a ten-month sentence following the revocation of his supervised release. We

affirm.


      *
        This order and judgment is not binding precedent except under the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.
                                 BACKGROUND

      Mr. Threatt was initially charged in a one-count indictment with possession

of a firearm after previously being convicted of a felony. He pled guilty and was

sentenced to twenty-eight months’ imprisonment, followed by three years of

supervised release. After Mr. Threatt completed his first term of imprisonment,

he violated a condition of his supervised release. His release was revoked, and he

was sentenced to a new term of seven months’ imprisonment, followed by twenty-

eight months of supervised release.

      While serving his second (twenty-eight month) term of supervised release,

a second revocation petition was filed, alleging that Mr. Threatt had once again

violated the conditions of his supervised release. Specifically, the petition

alleged that Mr. Threatt violated the terms of his supervised release by (1)

submitting urine specimens on four occasions in March and April 2009 which

tested positive for phencyclidine (PCP), and (2) admitting to his probation officer

on April 28, 2009 that he used PCP frequently during March and April of 2009.

      On May 11, 2009, a revocation hearing took place. At the conclusion of

the hearing, the district court continued the hearing to June 22, 2009, to enable

Mr. Threatt to show that he could comply with the terms of his supervised release.

After the June 22 hearing, the district court determined that Mr. Threatt had

violated the terms of his supervised release and revoked it. Mr. Threatt was then

sentenced to ten months’ imprisonment, a sentence within the advisory range of

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six to twelve months stipulated by the United States Sentencing Commission,

Guidelines Manual (“USSG”). This appeal followed, in which Mr. Threatt argues

that the ten-month sentence imposed upon revocation of his term of supervised

release was unreasonable.



                                   DISCUSSION

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

a person violates the conditions of his or her supervised release, the district court

may modify the conditions of release or revoke the term of supervised release and

impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304 (10 th Cir.

2004). “In imposing a sentence following revocation of supervised release, a

district court is required to consider both Chapter 7's policy statements, as well as

a number of the factors provided in 18 U.S.S. § 3553(a).” United States v.

Cordova, 461 F.3d 1184, 1188 (10 th Cir. 2006) (citations omitted). The district

court is not required, however, to consider individually each § 3553(a) factor, nor

“recite any magic words” before imposing a sentence. Id. at 1189. The district

court need only consider § 3553(a) en masse and state its reasons for imposing a

given sentence. Id.

      Furthermore, following United States v. Booker, 543 U.S. 220 (2005), and

its progeny, we review all sentences for reasonableness, applying a deferential

abuse of discretion standard. See Rita v. United States, 551 U.S. 338, 351 (2007).

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This applies equally to sentences imposed following the revocation of a

defendant’s supervised release. See United States v. Contreras-Martinez, 409

F.3d 1236, 1241 n.2 (10 th Cir. 2005). Mr. Threatt argues that the ten-month

sentence imposed in this case is unreasonable because “the district court’s reasons

for the sentence were based primarily on Mr. Threatt’s severe drug problem . . .

[and] [t]he violations of supervised release committed in this case when viewed in

the context of Mr. Threatt’s otherwise law-abiding conduct are not of sufficient

magnitude to warrant a sentence of imprisonment of 10 months.” Appellant’s Br.

at 7.

        After reviewing the entire record, we conclude that the sentence imposed

was reasonable. At the initial revocation hearing, on May 11, 2009, the district

court noted that Mr. Threatt’s case was not the typical case of repeated violations

of the terms of supervised release. Indeed, the court noted that Mr. Threatt had

been making efforts in many areas of his life to improve himself and avoid

violating his supervised release. Thus, the court observed:

        THE COURT: Well, I can’t say there are a lot of good options here.
        We’ve obviously wrestled with this on a number of occasions
        resulting in the revocation once before. Frankly, in the normal
        circumstance that I deal with when somebody has been revoked once
        and they are back here for the same thing again, I have a strong
        temptation to just revoke it again so that there’s some penalty for the
        violation, and then go on down the line without any further
        supervision. I mean, by the time we revoked the first time, revoking
        is not the first thing we resort to. It’s kind of the last resort after
        we’ve tried everything else. And so here we are with reuse again.


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              Against that, this, too, is a little unusual with Mr. Threatt, and
      that is he comes here unlike many in this circumstance with at least
      some indication that he’s trying . . . he’s employed, apparently, and
      trying to better himself through education and so on, and that’s not
      true in a great many cases. And I, frankly, am frustrated at the
      possibility of just sending him back to jail again, because I’m not
      sure, apart from teaching a lesson for violating the terms, that that
      ultimately helps solve anything. That may be where we end up.

                                          ...

      I’ll just say that I’m not going to take any substantive action with
      respect to the petition today, but I’m going to continue this hearing
      until [June 22]. By that time there will have been additional [urine
      tests] and . . . [b]y that time you will have had the opportunity to
      explore this latest treatment plan to see if that works. . . . And as I
      see it I’m giving you one last chance to prove to me that there’s a
      reason for us not to just pull the plug and go on down the road. And
      I very much hope that you’ll come in here in six weeks with no
      problems in the meantime and still employed . . . you’ve got plenty
      of reason to grab ahold of this and figure out a way to deal with the
      drugs.

Tr. of 5/11/09 Revocation Hr’g at 16-18, R. Vol. 3.

      The previously adjourned revocation hearing was again convened on

June 22, 2009. At that hearing, defense counsel revealed to the court that

Mr. Threatt admitted to the probation office that he had used drugs on a couple of

occasions since the last court hearing. After listening to all parties involved, the

court stated:

      Well, this is a difficult situation, of course. We’ve been down this
      road once before with Mr. Threatt, and I revoked him once
      previously for the same sorts of violations. That revocation, of
      course, came only after a variety of alternatives had been considered.
      We’re now here again after multiple opportunities to try and address


                                          -5-
      the concern with the drug use again, and we continue to not have any
      luck.
             I don’t minimize the difficulty of breaking an addiction like
      this. On the other hand, it’s something that he’s going to have to
      come to grips with and fix at some point if his life is ever to move in
      other than an utterly self-destructive direction. And I don’t know
      that there’s a good solution here, but it seems to me that under the
      circumstances where we have . . . admitted multiple violations of the
      terms of supervised release, apparently a long-running course of
      conduct even since our rescheduled hearing that reflects the same
      kind of ongoing violations, I think plainly there has to be
      consequences for that.
             And so I am going to find on the basis of the admitted
      violations that the supervised release for Mr. Threatt should be and is
      hereby revoked. He will be committed to the custody of the Bureau
      of Prisons for a term of ten months. At the conclusion of that ten
      months I, frankly, am disinclined to order some further period of
      supervised release. . . . I will include with the commitment order to
      the Bureau of Prisons a recommendation that he participate in
      whatever drug abuse programs are reasonably available to him based
      on the term of incarceration that I’m ordering now. But I think
      basically we’ve done all that I know to do in terms of getting these
      violations handled and dealing with Mr. Threatt’s situation.
             As I say, it’s not a situation that I enjoy any more than
      anybody else here does, but I think it’s what the law requires and
      what the circumstances required, and that will be the order of the
      Court.

Tr. of 6/22/09 Revocation Hr’g at 6-8, R. Vol. 3.

      The district court’s ten-month sentence was reasonable. As indicated

above, in determining a sentence for a defendant following the violation of the

defendant’s terms of supervised release, the district court must consider both the

Policy statements of Chapter 7 of the USSG as well as factors set forth in

§ 3553(a). The range of imprisonment is calculated by reference to the revocation

table contained in USSG §7B1.4(a). Given that Mr. Threatt’s violation of his

                                         -6-
condition of release was a Class C, and his criminal history category was IV, the

applicable Guidelines advisory range was six to twelve months’ imprisonment.

The ten months imposed was within that range. Mr. Threatt does not specify what

policy statements or § 3553(a) factors should have suggested a different sentence

to the district court. Indeed, although the court was clearly particularly concerned

about Mr. Threatt’s repeated drug use, it stated that the sentence imposed was the

most appropriate given all the circumstances of the case. Further, the court made

every effort to permit Mr. Threatt to establish that he could comply with his

conditions of release before it reluctantly imposed the ten-month sentence. In

short, we cannot conclude that the district court abused its discretion in

sentencing Mr. Threatt, or imposed anything other than a reasonable sentence.



                                  CONCLUSION

      For the foregoing reasons, the sentence is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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