                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 9, 2015
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 14-3281
 v.                                           (D.C. No. 5:06-CR-40151-JAR-1)
                                                          (D. Kan.)
 F. JEFFREY MILLER,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and McHUGH, Circuit Judges. **


      Defendant-Appellant F. Jeffrey Miller appeals from the district court’s

revocation of his supervised release and imposition of three concurrent 36-month

sentences on three counts of conviction. Mr. Miller argues that the district court

abused its discretion by (1) finding that he violated the terms of his supervised

release without sufficient evidentiary support in the record and (2) sentencing him


      *
        This order and judgment is not binding precedent, except under the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.
outside the 4–10 month advisory guideline range. Our jurisdiction arises under

28 U.S.C. § 1291 and we affirm.



                                    Background

      Mr. Miller, a building contractor, was convicted of conspiracy to defraud

mortgage lenders (Count 1), money laundering (Count 5), and criminal contempt

based upon violations of conditions of release (Counts 9 & 10). United States v.

Miller, 682 F.3d 1254, 1260 (10th Cir. 2012). On appeal, this court affirmed all

but the conspiracy count. Id. at 1278. On resentencing, the district court

sentenced Mr. Miller to 72 months imprisonment on each count, to run

concurrently, and three years supervised release on each count, again

concurrently. I R. 125-26. Mr. Miller was placed on supervised release on

January 10, 2014.

      Mr. Miller’s probation officer filed a petition to revoke his supervised

release alleging that Mr. Miller had violated several conditions of that release. I

R. 132-34. Specifically, (1) that he not commit another federal, state, or local

crime (by submitting false monthly reports to his probation officer, 18 U.S.C.

§ 1001), (2) that he answer inquiries of his probation officer truthfully and follow

her instructions, (3) that he not be employed in a capacity where he had

discretionary authority over financial matters, and (4) that he not commit another

federal, state, or local crime (by transmitting in interstate commerce a threat, with

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intent to extort money, to injure the person of Lisa Montgomery). II R. 92-4;

102-04. After an evidentiary hearing, the district court revoked Mr. Miller’s

supervised release. Essentially, the district court determined that Mr. Miller was

running a “contract for deed scam” using his son’s business, that he represented

to his probation officer that he was mere a laborer for the business when in fact

he acted as a principal with substantial involvement in financial affairs, and that

he traveled in interstate commerce and repeatedly telephoned and harrassed

purchaser Lisa Montgomery to make her payments. United States v. Miller, No.

06-40151-JAR, 2014 WL 6750066 (D. Kan. Nov. 26, 2014).

      We review a decision to revoke supervised release for an abuse of

discretion. United States v. Engles, 779 F.3d 1161, 1162 (10th Cir. 2015). The

decision that a defendant violated a condition of his release need only be

supported by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3); United

States v. Disney, 253 F.3d 1211, 1213 (10th Cir. 2001). As the trier of fact in a

revocation proceeding, the district court has the exclusive function of appraising

the credibility of witnesses, determining the weight to give their testimony, and

resolving any conflicts in the evidence. Thus, the district court’s factual findings

will be upheld unless clearly erroneous. United States v. Hall, 984 F.2d 387, 390

(10th Cir. 1993).

      To support his position, Mr. Miller argues that many important activities in

his son’s business occurred prior to his release, and that he was merely a trusted

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advisor. Aplt. Br. at 17-18. He also maintains that he accurately reported his job

title “Labor” when asked for his position in the company. Id. at 20-21. He points

out that Lisa Montgomery’s claims that she filed a police report and initiated a

court case could not be verified. Id. at 23-24. Further, when Mr. Miller’s cell

phone records did not substantiate outgoing calls to her on the date she claimed,

she changed the dates. Id.

      We have reviewed the hearing transcript. As is often the case, the evidence

is not all one-sided. But it doesn’t need to be. Mr. Miller’s probation officer

testified that Mr. Miller’s claim that he “was doing labor work, fixing things on

homes that his son had purchased” was simply not accurate based upon

information she received not only from others, but also from Mr. Miller’s own

explanation of how the business worked. III R. 256-59. Regarding Lisa

Montgomery’s testimony, III R. 208-53, that is a matter of credibility solely the

province of the district court. There is nothing inherently incredible about that

testimony which would allow us to disregard it. The district court’s findings are,

therefore, not clearly erroneous.

      Insofar as the sentence imposed, it need only be reasoned and reasonable,

meaning that it be procedurally and substantively reasonable. United States v.

McBride, 633 F.3d 1229, 1231-32 (10th Cir. 2011); United States v. Steele, 603

F.3d 803, 807 (10th Cir. 2010). The district court’s discretion is guided by the

factors set out in 18 U.S.C. § 3553(a), and the advisory sentencing guidelines

                                        -4-
found in U.S.S.G. § 7B1.4. See United States v. Rodriguez-Quintanilla, 442 F.3d

1254, 1256-57 (10th Cir. 2006). A reasonableness standard has been equated to

an abuse of discretion standard in the Tenth Circuit and “a district court abuses its

discretion when it renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Regan, 627 F.3d 1348, 1352 (10th

Cir. 2010)(internal quotation marks omitted).

      Given the district court’s findings that Mr. Miller’s behavior was “severe

and exceptional under the totality of circumstances,” and that Mr. Miller’s

conduct on supervised release was a continuation of his original offense conduct,

the sentence the district court imposed is not arbitrary, capricious, or manifestly

unreasonable. Transcript of Revocation Sentencing at 11, United States v. F.

Jeffrey Miller, No. 06-cr-40151 (D. Kan. Dec. 15, 2014). As it should, the

district court clearly explained the basis for its harsh sentence, see Gall v. United

States, 552 U.S. 38, 46 (2007), and did not abuse its discretion.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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