                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    SEP 26 2001
                                   TENTH CIRCUIT                  PATRICK FISHER
                                                                           Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,                             No. 00-2311
 v.                                               (D.C. No. CR-96-692-MV
                                                   (District of New Mexico)
 NORBERT THOMASSON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, HOLLOWAY and JONES, ** Circuit Judges.


      Defendant Appellant Norbert Thomasson brings this appeal from a sentence

of imprisonment imposed by the district court upon revocation of a previously

imposed period of supervised release.

                                          I

      In 1991, in the United States District Court for the Middle District of Florida,

Norbert Thomasson pleaded guilty to a charge of conspiracy to possess marijuana


      *
       This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. This court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment
may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        The Honorable Nathaniel R. Jones, United States Circuit Judge for the Sixth
Circuit, sitting by designation.
with intent to distribute. He was sentenced to a term of imprisonment to be followed

by a term of supervised release. After serving his term of imprisonment, he was

allowed to serve his period of supervised release in the District of New Mexico,

where he had previously lived. In 1999, Mr. Thomasson was arrested for assaulting

his wife. In the resulting prosecution, he pleaded guilty in state court to a fourth

degree felony, a misdemeanor, and a petty misdemeanor. III R. 5.

      In separate proceedings, the United States Attorney’s office filed a petition for

revocation of Mr. Thomasson’s supervised release, based on his violation of the

mandatory condition that he “not commit another federal, state, or local crime”

during the term of his release. I R. Doc. 2. 1 The district court held a hearing on the

government’s petition for revocation. At the hearing, Mr. Thomasson admitted the

violation but presented evidence to support his sole contention – that the domestic

dispute giving rise to the petition was not a crime of violence. 2 The district judge


      1
         The record does not include copies of the state court documents, but at the
hearing on the petition for revocation the district judge recited the charges,
apparently reading from the plea agreement which was introduced as an exhibit at
that hearing. According to this transcript of the revocation hearing, the state charges
were “attempt to commit a felony, and that is aggravated battery against a household
member[,] and aggravated battery against a household member which is a
misdemeanor[,] and then a petty misdemeanor of assault against a household member
. . . .” Id. at 8-9.
      2
       Under U.S.S.G. § 7B1.1, violations of supervised release are divided into
three categories, identified as Grades A through C. Grade A violations include
conduct that is punishable by a term of imprisonment exceeding one year and, inter
                                                                       (continued...)

                                         -2-
found that Mr. Thomasson’s conduct constituted an act of violence, a “Grade A

Violation” under § 7B1.1(a)(1) of the Sentencing Guidelines, and sentenced him to

18 months’ imprisonment. He now brings this appeal from his sentence.

                                         II

      Mr. Thomasson raises only one issue on appeal, asserting that the district court

erred by not making findings to support its determination that his sentence would be

based, in part, on placing him in criminal history category III under the Sentencing

Guidelines. The Sentencing Guidelines provide policy statements in Chapter 7 to

steer the district courts in assessing the appropriate punishment for violation of

conditions of supervised release. In United States v. Hurst, 78 F.3d 482, 483 (10th

Cir. 1996), we noted that

      “In United States v. Lee, 957 F.2d 770, 773 (10th Cir. 1992), we held
      ‘the policy statements regarding revocation of supervised release
      contained in Chapter 7 of the U.S.S.G. [including U.S.S.G. § 7B1.4(a)]
      are advisory rather than mandatory in nature.’ However, ‘they must be
      considered by the trial court in its deliberations concerning punishment
      for violation of conditions of supervised release.’ Lee, 957 F. 2d at
      774.”

      There was apparently no dispute in the federal district court that Mr.


      2
          (...continued)
alia, “is a crime of violence.” A Grade B violation is one which involves conduct
punishable by a term of imprisonment exceeding one year but not otherwise specified
as a Grade A violation. In the instant case, Mr. Thomasson argued in the district
court that the conduct was not a crime of violence and so should be classified as a
Grade B violation rather than a Grade A violation. He does not make this argument
on appeal.

                                         -3-
Thomasson’s guilty plea in state court was to an offense punishable by more than one

year in prison, thus constituting either a Grade A or a Grade B violation under

U.S.S.G. § 7B1.1(a). Under § 7B1.3(a)(1), revocation of probation is required for

Grade A or Grade B violations with a term of imprisonment to be determined

according to § 7B1.4. 3    Under § 7B1.4, one of the factors in determining the

sentencing range is the defendant’s criminal history category, as calculated at the

time of the original sentence:     “The criminal history category to be used in

determining the applicable range of imprisonment . . . is the category determined at

the time the defendant originally was sentenced to the term of supervision.”

U.S.S.G. § 7B1.4, comment. (n.1) (2000). The commentary further provides: “In the

rare case in which no criminal history category was determined when the defendant

originally was sentenced . . . the court shall determine the criminal history category

that would have been applicable at the time the defendant originally was sentence to

the term of supervision.” Id.



      3
        While it may seem strange that a guidelines chapter expressly designated as
advisory only should contain a provision which purportedly is mandatory, the
contradiction is only apparent, not real. The Sentencing Commission explained that
it chose not to issue binding guidelines in the first instance because several aspects
of the supervised release concept “represent recent changes in federal sentencing
practices.” USSG Ch. 7, Pt. A, intro. comment. at ¶ 3(a). The Commission also
stated that “[a]fter an adequate period of evaluation, the Commission intends to
promulgate revocation guidelines.” Id. In other words, § 7B1.3(a)(1) may become
truly mandatory if it is eventually adopted as a guideline, as opposed to a policy
statement.

                                         -4-
      When Mr. Thomasson was sentenced in Florida in 1991, judgment was

entered by the court on the customary form, which includes a space for specifying

the criminal history category that was used in determining the guidelines range. That

space was left blank on the 1991 judgment. Mr. Thomasson now contends that this

is a “rare case” in which the original sentencing court did not determine the criminal

history category. As a result, he argues, the New Mexico federal district court – in

setting the sentence to be served for violation of the original term of supervised

release – was required to make the determination that the original sentencing court

failed to make in 1991.

      Mr. Thomasson concedes that this issue was not raised below and that our

review, consequently, is only for plain error. Our analysis under the plain error

doctrine involves four steps. We have described these as follows:

      [T]he error must (1) be an actual error that was forfeited; (2) be plain
      or obvious; and (3) affect substantial rights . . . . Where the law was
      settled at the time of trial and clearly contrary to the law on appeal, it
      is sufficient if the error is plain on appeal. Given plain error that
      affects substantial rights, an appellate court should exercise its
      discretion and notice such error where it either (a) results in the
      conviction of one actually innocent, or (b) “seriously affect[s] the
      fairness, integrity or public reputation of judicial proceedings.”

United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (quoting United States

v. Olano, 507 U.S. 725, 736 (1993)) (internal citations omitted).

      For several reasons we are persuaded that Mr. Thomasson cannot carry the

burden of showing plain error. First, in the proceedings in the district court, counsel

                                          -5-
for Mr. Thomasson was the first to suggest that the appropriate criminal history

category was category III. Thus, if there were error it would have been an invited

error, precluding Mr. Thomasson from invoking our aid on appeal to undo what his

counsel suggested be done. See United States v. Edward J., 224 F.3d 1216, 1222

(10th Cir. 2000). More fundamentally, we do not find that there was error, at least

not error that is plain or obvious. We are not persuaded that the district court failed

to follow the procedures set out in Chapter 7 of the Guidelines, as Mr. Thomasson

contends. Although the 1991 judgment of the Florida district court left the criminal

history space blank, that court did adopt the pre-sentence report, which determined

that the defendant was in category III. It seems clear that the district judge in the

instant case determined from the materials before her – the 1991 PSR and judgment

together – that Mr. Thomasson had been sentenced in 1991 based on his being in

criminal history category III. 4

      Moreover, Mr. Thomasson has made no attempt to show that the alleged error

affected substantial rights. Counsel does not even suggest that re-visiting the 1991

criminal history determination would lead to a different result.

      In short, we find no error by the district court; even if there were error, we


      4
       Thus, we reject Thomasson’s argument that the district court committed plain
error by imposing an illegal sentence because we reject the argument’s premise that
the district court “fail[ed] to even consider the omission of a criminal history
category in the original judgment and whether it should independently determine the
appropriate criminal history category . . . .” Appellant’s Reply Brief at 3.

                                          -6-
would still affirm under the doctrine of invited error; and the judgment also should

be upheld under the doctrine of plain error, the defendant appellant having failed to

make a showing of the denial of a substantial right. Accordingly, the judgment of

the district court is AFFIRMED.




                                       ENTERED FOR THE COURT

                                       William J. Holloway, Jr.
                                       Circuit Judge




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