                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                           February 8, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                         No. 12-6230
                                                    (D.C. No. 5:09-CR-00116-C-1)
 JASON LEE CERRE, SR.,                                      (W.D. Okla.)

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, EBEL and TYMKOVICH, Circuit Judges.


       Defendant-Appellant Jason Cerre, Sr., challenges his thirty-six-month prison

sentence for violating the terms of his supervised release. Having jurisdiction under 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM.

                                   I. BACKGROUND

       In September 2009, Cerre pled guilty to one count of willfully and maliciously

failing to provide adequate care, shelter, medical care and supervision for a child under

       *After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties= request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
the age of eighteen, an offense occurring within Indian country. The district court

sentenced Cerre to twenty-four months in prison, to be followed by five years of

supervised release.

       Cerre was released from prison to supervised release in April 2011. Within a

week, Cerre violated the terms of his release by operating a vehicle while intoxicated. As

a result, the district court, with Cerre’s agreement, modified the terms of his supervised

release to require Cerre to complete an inpatient treatment program, followed by home

detention and electronic monitoring. Following that course, Cerre violated the terms of

his supervised release seven more times during the next three months. The district court,

therefore, revoked Cerre’s supervised release and sentenced him to thirteen months in

prison followed by forty-seven months of supervised release.

       On July 2, 2012, Cerre was again released from prison to supervised release. Ten

days later, Cerre violated the terms of his release when he was arrested for being publicly

intoxicated and disorderly. Cerre stipulated to this violation of his release terms, and the

district court revoked his supervised release. As a result of the revocation of his

supervised release terms, Cerre faced an advisory guideline range of between seven and

thirteen months in prison. See U.S.S.G. §§ 7B1.1(a)(3), 7B1.4(a). But the guidelines’

“Chapter 7 provisions dealing with violations of supervised release are not mandatory

sentencing guidelines; rather, they merely constitute advisory policy statements.” United

States v. Vigil, 696 F.3d 997, 1002 (10th Cir. 2012) (internal quotation marks omitted).

Therefore, “[a]ll discussions of applicable sentences before a district court following
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revocation of supervised release should be grounded in the common understanding that

the district court may impose any sentence within the statutory maximum.” Id. (internal

quotation marks omitted). And, in Cerre’s case, the statutory maximum prison sentence

for the revocation of his supervised release was five years. See 18 U.S.C. § 3583(e)(3)

(when, as here, the underlying conviction is for a Class A felony).

       The district court sentenced Cerre to thirty-six months in prison, with no further

supervised release. Cerre appeals.

                                      II. ANALYSIS

       “In reviewing a sentence imposed after revocation of supervised release, we

review the district court’s factual findings for clear error and its legal conclusions de

novo.” Vigil, 696 F.3d at 1001 (internal quotation marks omitted). “We will not reverse

a sentence following revocation of supervised release if the record establishes the

sentence is reasoned and reasonable. A sentence is reasoned if it is procedurally

reasonable’ and a reasonable sentence is one that is substantively reasonable.” Id.

(citation, internal quotation marks, alteration omitted).

       A. Procedural reasonableness

       “Procedural reasonableness addresses whether the district court incorrectly

calculated or failed to calculate the Guidelines sentence, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous facts, or

failed to adequately explain the sentence.” Vigil, 696 F.3d at 1001 (internal quotation

marks omitted). Although Cerre contends on appeal that his sentence was not
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“reasoned,” he does not proffer any argument challenging the procedural reasonableness

of his sentence.

       B. Substantive reasonableness

       Cerre instead argues that his sentence is substantively unreasonable. “Substantive

reasonableness review broadly looks to whether the district court abused its discretion in

weighing permissible § 3553(a) factors in light of the totality of the circumstances. Vigil,

696 F.3d at 1002 (internal quotation marks, alterations omitted). This abuse-of-discretion

standard “applies without regard to whether the district court imposes a sentence within

or outside the advisory Guideline range.” United States v. Steele, 603 F.3d 803, 809

(10th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

       Here, the district court did not abuse its discretion in sentencing Cerre to thirty-six

months in prison. The district court imposed this sentence after agreeing with the

probation officer’s recommendation that “there’s no point in imposing additional

supervised release following whatever [prison] term I give you.” (R. v.3 at 19.) See

Vigil, 696 F.3d at 1001-02 (upholding district court’s decision to revoke supervised

release and impose a prison sentence above the advisory guideline range, with no further

term of supervised release, based on the defendant’s “blatant, repeated violations of the

conditions” of supervised release).

       Nevertheless, the district court indicated it did not want to send the message that

“all you have to do is violate your supervised release, go back to jail, and then you’re no

longer supervised. There has to be a consequence for that.” (R. v.3 at 19.) “For that
                                              4
reason alone,” the court concluded that the term of imprisonment the court would impose

“ha[d] to be longer than it might otherwise be.” (Id.) The district court went on to note

that Cerre had

       been given many chances, many programs, many offers of help, and you’ve
       rejected each one. You’ve continued to engage in behaviors that cause a
       real danger to the community and to you. You need to serve as an example
       to others, both in your community and elsewhere, that you cannot violate
       the terms of your supervised release without significant consequences.

              We haven’t apparently persuaded you of that yet. And that’s my
       goal here in sentencing is to not only get you off the street and protect
       others from your alcoholism but to persuade you that a law-abiding life is
       the only way you are going to stay out of prison.

(Id. at 19-20.)

       The record supports the district court’s reasons for imposing a thirty-six-month

sentence. And the court’s reasoning rests on the relevant factors a court should consider

in determining the length of a prison sentence following revocation of supervised release.

See 18 U.S.C. § 3583(h). Cerre contends that a thirty-six-month sentence is too harsh for

the Class C violation for which the district court revoked his supervised release, being

publicly drunk and disorderly. But in imposing sentence, the court had to consider the

totality of the circumstances. See Vigil, 696 F.3d at 1002. And in light of all of the

circumstances at issue here, the court did not abuse its discretion in determining that a

thirty-six-month prison sentence was appropriate. See id.at 1001-02 (upholding prison

sentence above the advisory guideline range, with no further term of supervised release,

based on the defendant’s “blatant, repeated violations of the conditions” of supervised

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release); United States v. Cordova, 461 F.3d 1184, 1189 (10th Cir. 2006) (holding

sentence above advisory range for supervised release revocation was reasonable in light

of the defendant’s history of recidivism and substance abuse).

                                  III. CONCLUSION

      For the foregoing reasons, we AFFIRM Cerre’s thirty-six-month sentence.



                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




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