                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 12, 2011
                      UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 11-1200
 v.                                             (D.C. No. 94-CR-00231-LTB-1)
                                                           (D. Colo.)
 TIMOTHY NELSON REEVES,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and GORSUCH, Circuit Judges.


      Timothy Nelson Reeves challenges the district court’s revocation of his

supervised release and modification of the terms of his pending supervised release

based on vindictive prosecution and failure to rule on his objections, respectively.

United States v. Reeves, No. 94-cr-00231 (D. Colo. Apr. 25, 2011); 1 R. 102-05.

Mr. Reeves received an additional ten months of imprisonment to be followed by

twenty-six months of supervised release, including a condition that he participate

in a sex offender treatment program. We have jurisdiction under 28 U.S.C. §



      *
        This order and judgment is not binding precedent, except under the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.
1291 and 18 U.S.C. § 3742(a), and we affirm.



                                    Background

      Mr. Reeves was convicted in 1994 of mailing a threatening communication

based upon sexual demands made in a letter to a woman he did not know. 18

U.S.C. § 876; 4 R. 3. He served eighteen months for that conviction, consecutive

to sentences for other state crimes, and then started a three-year term of

supervised release on February 12, 2009. Id. at 3-4. On August 3, 2010, while on

supervised release, Mr. Reeves admitted to Colorado authorities that he had left

sexually explicit voicemail messages with a woman he did not know, in violation

of Colo. Rev. Stat. § 18-9-111. 1 R. 74. He was charged with, and ultimately

convicted of, a misdemeanor in state court for that offense. Prior to that, Mr.

Reeves’ probation officer, Garret Pfalmer, learned of Mr. Reeves’ admission and

initially filed a petition to modify conditions of release. 1 R. 5-6. In that

petition, Mr. Pfalmer asked the court to order Mr. Reeves to complete a sex

offender evaluation and, if recommended by the evaluator, to modify Mr. Reeves’

conditions of release to include mandatory sex offender treatment. Id.

      The district court ordered Mr. Reeves to undergo an evaluation and,

following the recommendation of the evaluator, held a hearing at which Mr.

Reeves was ordered to undergo sex offender treatment as one of his conditions of

release. 1 R. 11-12; 3 R. 3; 2 R. 28-35. At that hearing, counsel for Mr. Reeves

                                         -2-
indicated that the terms of treatment were unclear, and that he would need to see

the proposed treatment contract before he could advise Mr. Reeves to agree. Id.

Once Mr. Pfalmer provided that contract—the terms of which he described as

non-negotiable 1—counsel for Mr. Reeves filed several objections to various

contractual provisions. 1 R. 16-72. Before the district court could hold a

hearing on Mr. Reeves’ objections, however, Mr. Pfalmer filed a petition for

revocation of supervised release. 1 R. 73-74. The district court ultimately

revoked Mr. Reeves’ supervised release as noted above. 1 R. 102-05.

      On appeal, Mr. Reeves argues vindictive prosecution—namely, that Mr.

Pfalmer filed the revocation petition because Mr. Reeves challenged what he

believed to be unconstitutional provisions of the treatment contract. Aplt. Br. 29-

34; Aplt. Rep. Br. 1-12. Mr. Reeves also argues that the district court erred in

failing to consider his objections to that treatment contract, as he likely will be

required to sign the same contract when he is released from his current term of

incarceration. Aplt. Br. 34-35; Aplt. Rep. Br. 12-14.




      1
         Mr. Pfalmer specifically explained, before providing the contract to Mr.
Reeves: “The [treatment agency] would have a standardized treatment contract
that any and all individuals that would enter treatment services would sign into
and agree to.” 2 R. 34. Counsel for the government, at the revocation hearing,
also reiterated: “[I]t is clear, in my perception, that the defendant wants to
renegotiate a contract that essentially is not renegotiable.” 2 R. 60.

                                         -3-
                                     Discussion

A.    Vindictive Prosecution

      Mr. Reeves argues that the district court erred by failing to find vindictive

prosecution on the part of Mr. Pfalmer. This is not a traditional vindictive

prosecution case: vindictiveness and retaliation claims generally involve a

prosecutor or a judge. For example, a judge may not sentence a defendant more

harshly following a successful appeal without providing “articulated reasons

based on objective information,” and a prosecutor may not file felony charges

“when a convicted misdemeanant exercises his statutory appellate right to trial de

novo.” United States v. Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991) (citing

North Carolina v. Pearce, 395 U.S. 711, 726 (1969); Blackledge v. Perry, 417

U.S. 21, 27-29 (1974)). We have not found a reported case in which the

prosecutorial vindictiveness calculus was applied to a probation officer. 2

      We need not resolve this important question, however. Assuming—without

      2
         This case involves the actions of a federal probation officer in 2010 and
2011. Mr. Reeves cited cases relating to state parole boards, which are
fundamentally different than the federal probation department. See Nulph v.
Cook, 333 F.3d 1052 (9th Cir. 2003) (body at issue was the Oregon State Board
of Parole, a state entity which had authority to dictate sentence terms); Thompson
v. Armontrout, 808 F.2d 28 (8th Cir. 1986) (same for the Missouri Parole Board,
and the Eighth Circuit expressly refused to decide the present issue). Mr. Reeves
does provide one citation involving parole at the federal level, but it, too, is
distinguishable. See Marshall v. Lansing, 839 F.2d 933 (3d Cir. 1988) (body at
issue was the United States Parole Commission, which at that time—23 years
ago—had authority to impose penalties for disciplinary infractions). The question
whether vindictive prosecution applies to probation officers apparently remains
open, both in this circuit and generally.

                                        -4-
deciding—that vindictive prosecution could apply to a probation officer, Mr.

Reeves has failed to establish vindictive prosecution in this case. In evaluating a

claim of prosecutorial vindictiveness, we “must determine whether the [party at

issue] engaged in conduct that would not have occurred but for [its] desire to

punish the defendant for exercising a specific legal right.” United States v.

Sarracino, 340 F.3d 1148, 1178 (10th Cir. 2003). We review factual findings

relating to vindictive prosecution for clear error, and legal determinations de

novo. Raymer, 941 F.2d at 1039. Mr. Reeves has the burden of proof, and must

“establish either (1) actual vindictiveness, or (2) a realistic likelihood of

vindictiveness which will give rise to a presumption of vindictiveness.” Id. at

1040. If Mr. Reeves establishes either, the government must then “justify its

decision with legitimate, articulable, objective reasons.” Id.

      1.     Presumption of Vindictiveness

      A prosecuting authority may not punish a defendant for exercising a

specific legal right, and an inference that the prosecution has done so may lead to

a presumption of vindictiveness. Sarracino, 340 F.3d at 1178. Mr. Reeves’ claim

of vindictiveness rests entirely on pre-trial (or, here, “pre-hearing”) conduct, for

which the Supreme Court generally has refused to allow a presumption of

vindictiveness. See United States v. Goodwin, 457 U.S. 368, 384 (1982). Mr.

Reeves argues that the chain of events in this case—Mr. Pfalmer attempts to

modify supervised release, Mr. Reeves asserts his constitutional rights in arguing

                                          -5-
against some of the proposed modifications, and Mr. Pfalmer files for

revocation—allows for an inference of vindictiveness.

      We disagree. It is well-settled that an initial charging decision does not

freeze future conduct. Sarracino, 340 F.3d at 1177. “[T]he presumption is

without application when a prosecutor offers a defendant a chance to plead guilty

or face more serious charges, provided the prosecutor has probable cause on the

more serious charges and the defendant is free to accept or reject the offer.”

Raymer, 941 F.2d at 1040 (citing Bordenkircher v. Hayes, 434 U.S. 357, 363-64

(1978)). Neither does the presumption apply “when a defendant declines to plead

guilty to misdemeanor charges in order to exercise his right to a jury trial, and a

different prosecutor obtains a felony indictment.” Id. (citing United States v.

Goodwin, 457 U.S. 368, 382-84 (1982)).

      Mr. Reeves’ experience was more akin to a failed plea negotiation than

prosecutorial vindictiveness. As Mr. Reeves notes in his brief, Mr. Pfalmer could

have moved to revoke supervised release immediately upon learning of the new

offense. Aplt. Br. 6 (“Commission of the new offense was a Grade C violation of

Mr. Reeves’ conditions of supervised release and provided a clear basis for

revocation.”). Instead, Mr. Pfalmer pursued a sex offense specific evaluation, and

the evaluator recommended sex offender treatment. Before presenting the

treatment contract to Mr. Reeves, Mr. Pfalmer made clear that the contract was,

for practical purposes, non-negotiable. Mr. Reeves objected to the contract, and

                                         -6-
Mr. Pfalmer decided to instead pursue revocation. Given the need for a response

in this case, we cannot find that the district court clearly erred in concluding that

Mr. Pfalmer did not act vindictively.

      Mr. Reeves argues that his claim of vindictiveness is further supported by

the fact that he always explained that he was willing to undergo sex offender

treatment, regardless of the outcome of his objections, but first wished to explain

his concerns to the district court. This fact, he argues, further supports the

inference that Mr. Pfalmer was motivated only by vindictiveness. We disagree.

Particularly given the Supreme Court’s reluctance to expand the presumption of

vindictiveness in a pre-trial setting, we find no error.

      2.     Actual Vindictiveness

      Mr. Reeves alternatively argues that Mr. Pfalmer’s statement—that the

decision to file for revocation was “based on” Mr. Reeves’

objections—establishes actual vindictiveness. Again, we think Mr. Reeves’

experience was more akin to a failed plea negotiation. “Not only is a presumption

of vindictiveness inapplicable to the ‘give-and-take’ of plea negotiations, but

even a showing of actual vindictiveness does not necessarily warrant dismissal”

of a charge. Sarracino, 340 F.3d at 1177. Our cases make clear that a prosecutor

has full discretion to file additional charges—even relying on the same

evidence—“based on” a defendant’s decision to go to trial. Id. at 1178.

Recognizing that “the decision to prosecute may not be intentionally based upon .

                                          -7-
. . the exercise of protected statutory and constitutional rights,” id. (citing Wayte

v. United States, 470 U.S. 598, 608 (1985)), we disagree that Mr. Pfalmer’s use of

“based on” necessarily implies retaliation based on the exercise of any right. On

this record, the district court could have concluded that Mr. Pfalmer retaliated

against Mr. Reeves for exercising his constitutional rights. But it also could have

concluded—as it did—that Mr. Pfalmer’s “motivation was one for public safety

and protection of the public, given the nature of the charge” at issue. 2 R. 76.

Implicit in that finding is the conclusion that Mr. Pfalmer’s use of “based on” was

not retaliatory, but simply evinced by the conclusion that Mr. Reeves’ challenges

to the proposed modifications made such modifications unworkable. Given those

options, the district court did not clearly err by finding that Mr. Pfalmer did not

vindictively prosecute Mr. Reeves. 3

B.    Objections to Pending Conditions of Release

      Mr. Reeves also argues that the district court erred by refusing to consider

his specific objections to the proposed treatment contract, as he likely will have to

sign that same contract as a condition of his supervised release. Here again, an


      3
          Mr. Reeves also notes that Mr. Pfalmer expressly reserved the right to
file a revocation petition, but only in the event that Mr. Reeves was convicted on
the Colorado state charges. Aplt. Rep. Br. 4. Mr. Reeves argues that Mr.
Pfalmer’s filing for revocation prior to the eventual Colorado conviction further
supports his claim of vindictiveness. Id. As the gravamen of this opinion makes
clear, however, Mr. Pfalmer had discretion to file for revocation at any time; his
decision to first attempt modification did not foreclose his other options, even if
he only expressed one of those options.

                                         -8-
important distinction must be made: Mr. Reeves objected to the terms of the

treatment contract, but not to the imposition of mandatory sex offender treatment

generally. The court imposed only mandatory sex offender treatment, not the

specific contract to which Mr. Reeves objected, and we therefore find that this

argument is not yet ripe for consideration. Mr. Reeves, as a result of being

incarcerated, is not subject to that contract now, and necessarily would not have

been for ten months following the district court’s revocation due to his sentence.

Perhaps he will be presented with that contract when his incarceration ends, but

this is not assured; in the meantime, we cannot say that the district court erred by

failing to render what would amount to an advisory opinion on the

constitutionality of that document. 4 Mr. Reeves is free to challenge the proposed

treatment contract if and when he is presented with it following his incarceration.

See 18 U.S.C. § 3583(e)(2).

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge


      4
         The court specifically required Mr. Reeves to “participate in and
successfully complete an approved program of sex offender evaluation and
treatment . . . . The defendant shall comply with the rules and restrictions
specified by the treatment agency.” 1 R. 105. Until it is clear to which agency
Mr. Reeves will be assigned, as well as what contract that agency will present,
any challenge to a potential requirement cannot be ripe.

                                         -9-
