                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 18, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                     No. 14-7070
                                             (D.C. No. 6:07-CR-00063-RAW-1)
 COREY HELTON,                                          (E.D. Okla.)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges. **


      Corey Helton appeals his prison sentence for violating conditions of

supervised release. He asks us to reverse his sentence because the district court

relied on his violation of an illegal condition. The court found that Helton had

failed to attend inpatient drug treatment as ordered by his probation officer.

Helton argues this condition contravenes our holding in United States v. Mike,


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
632 F.3d 686, 696 (10th Cir. 2011), which precluded the delegation of such a

condition to probation officers. Although the delegation was improper, we

uphold Helton’s sentence because his challenge is time-barred due to his failure

to raise it on direct appeal. Helton also claims his sentence was substantively

unreasonable, which we reject.

      Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

affirm.

                                 I. Background

      Helton pleaded guilty to possessing methamphetamine with the intent to

distribute. He was sentenced in 2008 to seventy-eight months in prison, to be

followed by forty-eight months of supervised release. One condition of his

supervised release read, “If it is determined by the Probation Officer that the

defendant is in need of a residential drug/alcohol treatment program, he shall

participate in such treatment as directed by the Probation Office and remain in the

treatment facility until discharged.” R., Vol. I. at 20 (emphases added).

      In 2011, we held “a district court cannot delegate [to a probation officer]

the decision of whether to subject a defendant to residential treatment” because

“granting the probation officer” that discretion “is tantamount to allowing him to

decide the nature or extent of the defendant’s punishment.” Mike, 632 F.3d at

696. Because mandatory inpatient treatment “affects a significant liberty



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interest,” such a delegation would run afoul of Article III of the Constitution. Id.

at 695–96.

      Helton was released from prison in 2013, but the Probation Office filed a

petition to revoke his supervised release after he failed seven drug tests. The

court granted the petition and sentenced Helton to three months in prison with

credit for time served, followed by twenty-four months of supervised release.

Despite our holding in Mike, the new conditions of supervised release included

the same inpatient treatment condition that was imposed in 2008: that Helton

would have to attend inpatient treatment if a probation officer so decided.

Apparently, neither the parties nor the district court addressed Mike, and Helton

did not appeal.

      When Helton was released from prison in 2014, he again violated his

supervised-release conditions by failing multiple drug tests, failing to submit to a

required drug test, and failing to comply with curfew requirements. In addition,

he left before completing an inpatient treatment program that had been ordered by

the Probation Office.

      The Probation Office accordingly filed another petition to revoke

supervised release. At the ensuing revocation hearing, Helton again did not cite

our decision in Mike. The district court sentenced him to the maximum prison

term, which was twenty-four months. The court reasoned that given Helton’s

history, he “has shown little regard for the rules and conditions of supervised

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release,” and the maximum sentence was “reasonable, provid[ed] just punishment

for noncompliance, [was] an adequate deterrent to criminal conduct, and

promot[ed] respect for the law.” R., Vol. II. at 19–20.

                                  II. Analysis

      Helton raises two objections to the twenty-four-month sentence imposed by

the district court. He first argues that the sentence was procedurally unreasonable

in light of Mike. He next argues that the length of the sentence was substantively

unreasonable. The first claim is time-barred, and we reject the second.

      A. Procedural Unreasonableness

      Helton argues that because Mike prohibits a district court from delegating

discretion to a probation officer to determine whether a supervisee must attend

inpatient treatment, the inpatient treatment condition of his supervised release

was procedurally invalid. He therefore asserts that the district court erred by

taking his violation of that condition into account during sentencing. He admits

that he forfeited this argument by not raising it below, but claims we should still

grant relief because the sentence was plainly erroneous.

      But Helton not only failed to raise Mike at the revocation hearing in 2014,

but also failed to raise it in 2013, when the condition was imposed. We have held

that where a district court orders a supervisee to comply with a previously

imposed condition of supervised release, the supervisee is time-barred from

challenging “the legal and factual basis” of the condition itself. United States v.

                                         -4-
Wayne, 591 F.3d 1326, 1334 (10th Cir. 2010) (citing Fed. R. App. P. 4(b)(1)(A)

(“In a criminal case, a defendant’s notice of appeal must be filed in the district

court within 14 days after the later of: (i) the entry of either the judgment or the

order being appealed; or (ii) the filing of the government’s notice of appeal.”)).

Rather, a supervisee must timely challenge a condition “on direct appeal from the

sentencing court’s judgment.” Id.

         We are in alignment with other circuits in holding that a supervisee cannot

challenge a condition itself when responding to a petition to revoke supervised

release. See United States v. Preacely, 702 F.3d 373, 376 (7th Cir. 2012); United

States v. Johnson, 138 F.3d 115, 118 (4th Cir. 1998); United States v. Nolan, 932

F.2d 1005, 1007 (1st Cir. 1991); United States v. Irvin, 820 F.2d 110, 111 (5th

Cir. 1987); United States v. Stine, 646 F.2d 839, 846–47 (3d Cir. 1981); see also

United States v. Beech-Nut Nutrition Corp., 925 F.2d 604, 607 (2d Cir. 1991)

(distinguishing between facial challenges to conditions and challenges to their

specific application, holding that district courts may hear the latter). Thus, we

will not consider Helton’s objection to the inpatient treatment condition at this

stage.

         B. Substantive Unreasonableness

         Next, Helton argues that the sentence was substantively unreasonable. He

notes that under the United States Sentencing Guidelines, his supervised-release

violations were considered “Grade C”—the least severe. The resulting Guidelines

                                           -5-
recommendation was four to ten months, which was far less than the twenty-four

months he ultimately received. In addition, he asserts that he is an addict who

needs treatment, rather than a lengthy prison sentence, and that he has posed no

danger to others, but only to himself.

      We review the imposition of a sentence for abuse of discretion. United

States v. Brooks, 736 F.3d 921, 941 (10th Cir. 2013), cert. denied, 134 S. Ct.

1526 (2014), and cert. denied, 134 S. Ct. 2157 (2014). In sentencing a defendant

after revoking supervised release, “[t]he judge must consider the factors in 18

U.S.C. § 3553(a) and the policy statements in Chapter 7 of the Sentencing

Guidelines.” United States v. Vigil, 696 F.3d 997, 1002 (10th Cir. 2012). “Magic

words,” however, are not required. Id. Rather, we uphold an above-Guidelines

sentence for a supervised-release violation “if it can be determined from the

record to have been reasoned and reasonable.” United States v. Rodriguez-

Quintanilla, 442 F.3d 1254, 1258 (10th Cir. 2006) (quoting United States v.

Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004), abrogated on other grounds by

Tapia v. United States, 131 S. Ct. 2382 (2011)) (internal quotation marks

omitted).

      In Vigil, we upheld an above-Guidelines sentence where the defendant had

committed “blatant, repeated violations of the conditions of her probation and

supervised release.” 696 F.3d at 1002. Likewise, the district court here found

that an above-Guidelines sentence was warranted because of Helton’s repeated

                                         -6-
failure to comply with the terms of his release. Moreover, the record shows that

the court considered both the policy statements in Chapter 7 of the Guidelines as

well as the factors listed in 18 U.S.C. § 3553(a).

         We accordingly conclude that the sentence was reasoned and reasonable

and that the district court did not abuse its discretion.

                                  III. Conclusion

         For the foregoing reasons, we AFFIRM the sentence imposed by the district

court.

                                                 ENTERED FOR THE COURT

                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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