                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     August 21, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3017
 v.                                          (D.Ct. No. 5:02-CR-40031-SAC-1)
                                                          (D. Kan.)
 RUSSELL EUGENE LUTZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and BRORBY, 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Defendant Russell Eugene Lutz appeals his sentence following revocation



      *
         This order and judgment is not binding precedent except under the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.
of his supervised release on grounds the district court unreasonably imposed a

twenty-four-month sentence of imprisonment, rather than sentencing him to

inpatient drug and mental health treatment as requested. On appeal, Mr. Lutz

contends his sentence is both procedurally and substantively unreasonable. We

exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and

affirm Mr. Lutz’s sentence.



                              I. Procedural Background

      Mr. Lutz pled guilty to one count of possession of a firearm during and in

relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c), and

received a sentence of sixty months imprisonment followed by three years of

supervised release. On July 7, 2006, he began serving his term of supervised

release and, on September 1, 2006, consented to a modification of the terms of his

supervision which included mental health treatment. On December 18, 2007, the

government filed a petition seeking revocation of Mr. Lutz’s supervised release,

alleging he violated the conditions of his supervised release because he: (1)

failed to refrain from drug use; and (2) failed to participate in a drug abuse

program. 1

      1
         Previously, on January 9, 2007, the government filed a petition for
revocation of Mr. Lutz’s supervised release, alleging, in part, that he failed to
refrain from drug use and participate in a drug treatment program. While that
petition is provided in the record on appeal, it was later withdrawn based on Mr.
                                                                       (continued...)

                                          -2-
      On January 15, 2008, the district court held a hearing, at which time Mr.

Lutz stipulated he “missed counseling sessions and urinalysis testing

appointments.” R., Vol. 2 at 3-4. In turn, the government presented the

testimony of supervising probation officer Mary Handley, who confirmed Mr.

Lutz: (1) failed to adhere to a special condition of his supervised release

requiring him to participate in a drug treatment plan, which constituted a Grade C

violation of his supervised release; and (2) tested positive for methamphetamine

and marijuana on two occasions during his supervised release and admitted using

methamphetamine, evidencing his failure to refrain from the use of controlled

substances, which constituted a Grade B violation of his supervised release. On

cross-examination, she acknowledged the United States Probation Office had

      1
        (...continued)
Lutz’s apparent compliance with the terms of his supervised release following the
filing of that petition. In turn, the December 18, 2007 petition discussed in the
instant appeal was not provided in the record by either party. Instead, the record
on appeal contains the January 2, 2008 amended petition filed by the government,
but which it admitted it failed to serve on Mr. Lutz’s counsel.

        During the revocation hearing, counsel for the government voluntarily
agreed to limit its evidence and arguments to the allegations contained in the
initial December 18, 2007 petition, which, again, we do not have before us.
Because the revocation hearing transcript is sufficient to enable us to discern the
two allegations presented in the December 18, 2007 petition, we are able to
dispose of this appeal without its inclusion in the record. Nevertheless, the
parties are reminded that Federal Rules of Appellate Procedure 10 and 28 and
Tenth Circuit Rules 10.3, 28.1, and 28.2 require them to provide sufficient
references to the record in their appeal briefs and the applicable portions of the
record on which they rely or to which they refer. See also Scott v. Hern, 216 F.3d
897, 912 (10th Cir. 2000) (holding“[w]here the record is insufficient to permit
review we must affirm”).

                                         -3-
available to it inpatient drug treatment programs as well as mental health

programs.



      The district court found Mr. Lutz violated his supervised release, noting the

highest violation was a Grade B violation which, together with his criminal

history category of V, resulted in a United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) range of eighteen to twenty-four months

imprisonment. See U.S.S.G. § 7B1.4(a) (Revocation Table). The district court

then revoked his supervised release, announced a tentative sentence of twenty-

four months with no supervised release to follow, and allowed the parties to

present argument and comment on the tentative sentence. In response, Mr. Lutz’s

counsel claimed Mr. Lutz would not receive adequate treatment within the Bureau

of Prisons system and therefore expressly, but generally, argued the 18 U.S.C.

§ 3553(a) factors warranted a modified sentence to include inpatient drug and

mental health treatment, which the probation officer acknowledged, during her

testimony, was available. Alternatively, he requested a sentence of twelve

months and one day.



      At the conclusion of the hearing, Mr. Lutz personally addressed the court,

saying he was “fighting some kind of mental thing,” and “I couldn’t ask for a

better probation officer. And I’m stumped as to why this happened.” R., Vol. 2

                                         -4-
at 12-13. Following these statements, the district court addressed Mr. Lutz,

stating:

      All right, sir. Thank you. Well, not only Ms. Handley but also your
      counsel has attempted to give you the benefit of the best that they
      can do for you. I’m not really sure they can do much for you. The
      Court is not impressed with the position of the Defendant.

R., Vol. 2 at 13. The district court then stated it found Mr. Lutz violated the

terms of his supervised release, based on the violation report and the evidence

presented, and imposed a sentence of twenty-four months imprisonment.

However, it did agree, at Mr. Lutz’s counsel’s request, to recommend Mr. Lutz

participate in drug treatment and mental health treatment while serving his

sentence.



                                   II. Discussion

      On appeal, Mr. Lutz continues to claim his twenty-four-month sentence of

imprisonment is substantively unreasonable under 18 U.S.C. § 3553(a) because

the circumstances of his case warrant a sentence of “inpatient drug and mental

health treatment,” as requested. We review Mr. Lutz’s argument his sentence is

substantively unreasonable under a deferential abuse of discretion standard. See

United States v. Smart, 518 F.3d 800, 802, 805-06 (10th Cir. 2008). For the first

time on appeal, Mr. Lutz also argues his sentence is procedurally unreasonable

because the district court did not consider the mandatory 18 U.S.C. § 3553(a)


                                         -5-
sentencing factors or objectives in imposing the twenty-four-month sentence,

provide its reasons for imposing such a sentence, or address his argument for

inpatient drug and mental heath treatment. Because Mr. Lutz failed to raise these

objections before the district court, we review them for plain error, which “occurs

when there is (1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Cordova, 461 F.3d 1184, 1186 (10th Cir. 2006)

(quotation marks and citation omitted).



      Under Federal Rule of Criminal Procedure 32.1 and 18 U.S.C. § 3583(e)(2)

and (3), when a person violates the conditions of his supervised release, as Mr.

Lutz did here, 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 (10th Cir. 2004). In imposing a sentence following

revocation of supervised release, a district court is required to consider both

Chapter Seven’s policy statements as well as the factors provided in 18 U.S.C.

§ 3553(a). 2 See Cordova, 461 F.3d at 1188.

      2
          These factors include:

      The nature and circumstances of the offense; the history and
      characteristics of the defendant; the need for the sentence imposed to
      afford adequate deterrence, protect the public, and provide the
      defendant with needed educational or vocational training, medical
                                                                      (continued...)

                                          -6-
      “Reasonableness review is guided by the factors set forth in 18 U.S.C.

§ 3553(a).” United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “Our

appellate review for reasonableness includes both a procedural component,

encompassing the method by which a sentence was calculated, as well as a

substantive component, which relates to the length of the resulting sentence.”

Smart, 518 F.3d at 803. “In Gall, the Supreme Court identified ‘failing to

consider the § 3553(a) factors’ and ‘failing to adequately explain the chosen

sentence’ as forms of procedural error.” Id. (quoting Gall v. United States,

___U.S. ___, 128 S. Ct. 586, 597 (2007)). 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.” Id. at 804.



      Beginning with the district court’s alleged procedural error in failing to

consider the § 3553(a) factors or explain the chosen sentence, the Supreme Court

has “made clear that a district judge is not required to give an exhaustive list of

reasons” for the sentence imposed. United States v. Tindall, 519 F.3d 1057, 1065

(10th Cir. 2008). However, a district court must provide some basis for us to

      2
       (...continued)
      care or other correctional treatment in the most effective manner;
      pertinent guidelines; pertinent policy statements; the need to avoid
      unwanted sentence disparities; and the need to provide restitution.

Cordova, 461 F.3d at 1188-89 (quoting United States v. Contreras-Martinez, 409
F.3d 1236, 1242 n.3 (10th Cir. 2005)).

                                          -7-
conclude it “has considered the parties’ arguments and has a reasoned basis for

exercising [its] own legal decisionmaking authority.” Rita v. United States,

___U.S. ___, 127 S. Ct. 2456, 2468 (2007). In that regard, when a sentence falls

within the Guidelines range, we have said § 3553(c) requires the court to provide

only a general statement in explaining the imposition of a sentence. See United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.), cert. denied, 128 S. Ct.

113 (2007). If the sentence is within the correctly-calculated Guidelines range,

the sentence is presumptively reasonable, unless the defendant “rebut[s] this

presumption by demonstrating that the sentence is unreasonable in light of the

other sentencing factors laid out in § 3553(a).” Kristl, 437 F.3d at 1055.



      In this case, Mr. Lutz contends the district court failed to consider his

argument for inpatient drug and mental health treatment under 18 U.S.C.

§ 3553(a) or otherwise provide sufficient reasoning for his sentence. However, a

review of the sentencing hearing transcript reveals Mr. Lutz expressly presented

his § 3553(a) argument for inpatient treatment to the district court and that the

district court heard, considered, and then rejected that argument when it declared

it was not impressed with Mr. Lutz’s position and imposed the Guidelines range

sentence of twenty-four months imprisonment, as recommended by the Chapter

Seven policy statement revocation table. It also agreed to recommend to the

Bureau of Prisons Mr. Lutz’s participation in a drug and mental health treatment

                                         -8-
program while serving his sentence, thereby evidencing it considered his request

for such treatment while in prison.



      While a more comprehensive explanation might have aided this court in

concluding whether a reasoned basis existed for the district court’s twenty-four-

month sentence, the district court imposed a sentence within the recommended

Guidelines range, which requires only a general explanation of the reason for the

sentence imposed. Even if we determined a more comprehensive explanation was

required, we can find no procedural error. This is because Mr. Lutz cannot

satisfy the third or fourth prongs of the plain error analysis. To meet the third

prong, he must demonstrate his substantial rights were affected, which requires a

showing the result of the sentencing proceeding would have been different but for

the asserted error. See United States v. Romero, 491 F.3d 1173, 1179 (10th Cir.),

cert. denied, 128 S. Ct. 319 (2007). Nothing in the record or Mr. Lutz’s argument

indicates the district court would have imposed a different sentence had it

provided further or more explicit reasoning for the sentence imposed. 3


      3
         See United States v. Rainwater, 274 F.App’x 629, 631 (10th Cir. April
16, 2008) (unpublished op.) (upholding sentence on determination defendant
could not satisfy substantial rights plain error prong in revocation of sentence
case, although district court imposed sentence without discussion of § 3553(a)
factors or Chapter Seven Guidelines policy statements). While this unpublished
opinion does not have precedential value, it has persuasive value with respect to
the same material issue raised here and assists with our disposition of this appeal.
See 10th Cir. R. 32.1.

                                          -9-
      Similarly, Mr. Lutz has failed to establish the fourth prong of the plain

error analysis, which requires a showing his twenty-four-month sentence seriously

affected the fairness, integrity, or public reputation of judicial proceedings. In

order to make this showing, he must demonstrate the district court’s limited

explanation of his sentence was “particularly egregious” and a failure to correct it

would result in a “miscarriage of justice.” See United States v. Gonzalez-Huerta,

403 F.3d 727, 736 (10th Cir. 2005) (en banc). Mr. Lutz has failed to make such a

showing, especially in light of the district court’s recommendation to the Bureau

of Prisons that he participate in drug and mental health treatment during his

incarceration and his own failure to participate in a drug abuse program which

was one of the conditions of his supervised release.



      Having rejected Mr. Lutz’s claim his sentence is procedurally unreasonable,

we turn to his argument that his sentence is substantively unreasonable because “a

twenty-four month sentence is greater than necessary to meet the statutory

sentencing objectives” of § 3553(a). Apt. Br. at 7. As previously explained, we

review such a claim under a deferential abuse of discretion standard. Because

Mr. Lutz’s twenty-four-month sentence clearly falls within the applicable

advisory Guidelines range, his sentence is presumptively reasonable. In

attempting to rebut his presumption with respect to the § 3553(a) factors, Mr.

Lutz has not shown his argument for a variant sentence of inpatient drug and

                                         -10-
mental health treatment is sufficiently compelling for the purpose of showing his

sentence is substantively unreasonable, especially in light of the district court’s

recommendation Mr. Lutz participate in such treatment during his incarceration

and Mr. Lutz’s prior flagrant evasion of the conditions of his supervised release,

which included a requirement he participate in an approved substance abuse

treatment program, which he failed to do. Thus, under the circumstances

presented, Mr. Lutz has not overcome the requisite presumption of reasonableness

attached to his twenty-four-month sentence or otherwise demonstrated his

sentence is procedurally or substantively unreasonable under the 18 U.S.C.

§ 3553(a) factors.



                                   III. Conclusion

      For these reasons, we AFFIRM Mr. Lutz’s sentence.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




                                         -11-
