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

                            FOR THE TENTH CIRCUIT                          December 18, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-2039
                                                   (D.C. No. 1:04-CR-01688-MCA-1)
 ORYAN YAZZIE,                                                  (D.N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

      After Oryan Yazzie violated a condition of his supervised release, the district

court imposed a 24-month prison sentence. Yazzie appeals, arguing his sentence is

substantively unreasonable.1 For the reasons discussed below, we disagree.

Accordingly, we affirm.


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument wouldn’t 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. This order and judgment isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th
Cir. R. 32.1.
       1
         Yazzie also initially challenged the district court’s decision requiring Yazzie,
“as a condition of his supervised release, to take all mental health medication
prescribed by his treating physician and pay all or parts of the costs.” Aplt. Br. 11.
But after Yazzie filed his opening brief, the government (1) informed us that the
parties had reached an agreement regarding proposed modifications to this condition
                                     Background

       After Yazzie pleaded guilty to kidnapping, the district court imposed a 12-year

prison sentence and a five-year term of supervised release. As a condition of his

supervised release, the district court ordered Yazzie to complete a program at a

residential reentry center.

       Yazzie began serving his supervised release on August 14, 2015. Over the next

23 months, Yazzie twice appeared before the district court to answer for violating the

conditions of that release. On both occasions, the district court determined that

Yazzie failed to complete the required residential reentry program. And on both

occasions, the district court imposed a prison sentence, to be followed by supervised

release.

       Yazzie began serving his third term of supervised release on September 22,

2017. Less than three months later, Yazzie appeared before the district court for a

third revocation hearing. The district court again concluded that Yazzie violated the

terms of his supervised release by failing to complete the requisite reentry program.

And it again sentenced Yazzie to prison. In doing so, the district court determined

that—based on Yazzie’s criminal history category and the grade of his violation—the

United States Sentencing Guidelines (the Guidelines), called for a sentence of 5 to 11



and (2) requested that we direct a limited remand to allow the district court to
consider the proposed modifications. We granted the government’s request, and the
district court subsequently modified the mental-health condition. Because the parties
agree Yazzie’s challenge to that condition is now moot, we confine our discussion on
appeal to Yazzie’s substantive-reasonableness argument.
                                           2
months’ imprisonment. See U.S.S.G. § 7B1.4. But in light of several factors,

including Yazzie’s prior revocations, the nature of his underlying offense, his

“demanding and hostile attitude towards people in his community,” and the district

court’s need to “protect[] the community,” the district court instead sentenced him to

24 months in prison. R. vol. 3, 62. Yazzie appeals.

                                       Analysis

      On appeal, Yazzie argues that his 24-month prison sentence is substantively

unreasonable. See United States v. Walker, 844 F.3d 1253, 1255 (10th Cir. 2017)

(“Though district courts have broad discretion at sentencing, the sentence must be

substantively reasonable.”). Specifically, he asserts that this sentence (which he

points out is “more than double the top of the [applicable Guidelines] range”) is

substantially longer than necessary to accomplish the goals of 18 U.S.C. § 3553(a).

Aplt. Br. 27. And he contends that in imposing this “very lengthy sentence,” the

district court failed to “tak[e] into account the extent to which [] Yazzie’s mental

health condition contributed to his violation of supervised release conditions and

diminished his culpability.”2 Id.

      As an initial matter, we note that to the extent Yazzie argues the district court

erred by failing to consider his mental health, he challenges the procedural



      2
         In his reply brief, Yazzie also argues that his sentence is substantively
unreasonable because it “will likely” hinder his progress in “achiev[ing] a state of
good mental health.” Rep. Br. 3. But because Yazzie raises this argument for the first
time in his reply brief, we treat it as waived and decline to consider it. See United
States v. Beckstead, 500 F.3d 1154, 1163 (10th Cir. 2007).
                                           3
reasonableness of his sentence, not its substantive reasonableness. See Gall v. United

States, 552 U.S. 38, 51 (2007) (distinguishing between procedural error and

substantive error at sentencing). Moreover, Yazzie didn’t raise this specific

procedural-reasonableness argument below. Nor does he argue for plain-error review

on appeal. Accordingly, we treat this procedural argument as waived and decline to

consider it. See United States v. DeRusse, 859 F.3d 1232, 1236 n.1 (10th Cir. 2017)

(finding procedural arguments waived based on appellant’s “failure either to raise

these specific objections below or to make an argument for plain[-]error review on

appeal”).

      But to the extent Yazzie instead asserts that the length of his sentence is

unreasonable in light of the relevant § 3553(a) factors—including his mental health—

he challenges the substantive reasonableness of the sentence. See United States v.

Lente, 647 F.3d 1021, 1031–32 (10th Cir. 2011) (“[Appellant’s] true challenge

appears to be to the district court’s balancing of her background characteristics and

her criminal history and the weight the court gave to those factors. This is a

substantive, not procedural, challenge.”). And unlike a challenge to the procedural

reasonableness of his sentence, Yazzie wasn’t required to object below to preserve

this issue for appeal. See United States v. Torres–Duenas, 461 F.3d 1178, 1183 (10th

Cir. 2006).

      “We review the substantive reasonableness of a sentence for abuse of

discretion.” United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013). A district

court abuses its discretion only if it imposes a sentence that “is arbitrary, capricious,

                                            4
whimsical, or manifestly unreasonable.” United States v. Durham, 902 F.3d 1180,

1236 (10th Cir. 2018) (quoting United States v. Munoz–Nava, 524 F.3d 1137, 1146

(10th Cir. 2008)). Critically, because “there will be a range of possible outcomes the

facts and law at issue can fairly support,” we will defer to the district court’s

judgment “so long as it falls within the realm of . . . rationally available choices.” Id.

(quoting United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)).

       In reviewing Yazzie’s substantive-reasonableness argument, we ask “whether

the length of [his] sentence is reasonable given all the circumstances of the case in

light of” the relevant § 3553(a) factors. United States v. Singer, 825 F.3d 1151, 1158

(10th Cir. 2016) (quoting United States v. Craig, 808 F.3d 1249, 1261 (10th Cir.

2015)); see also § 3583(e) (identifying § 3553 factors that court must consider when

revoking term of supervised release and imposing prison sentence). These factors

include, among other things, the nature and circumstances of the offense, the history

and characteristics of the defendant, the need to adequately deter criminal conduct,

the need to protect the public from further crimes by the defendant, and the need to

provide the defendant with necessary medical care. See § 3583(e); § 3553(a)(1),

(a)(2)(B)–(D).

       Although sentences falling within the applicable Guidelines range are

presumptively reasonable, see United States v. McBride, 633 F.3d 1229, 1233 (10th

Cir. 2011), this presumption doesn’t apply here because Yazzie’s 24-month sentence

exceeded the applicable Guidelines range of 5 to 11 months. But the fact that

Yazzie’s sentence fell outside the Guidelines range doesn’t necessarily render that

                                            5
sentence substantively unreasonable. See Gall, 552 U.S. at 51. Instead, it simply

means we must “consider the extent of the deviation” and determine whether the

district court’s proffered justifications for that deviation are “sufficiently compelling

to support the degree of the variance.” Id. at 50.

       We conclude that they are. Among the factors it considered in imposing a 24-

month prison sentence, the district court cited (1) Yazzie’s prior violations; (2) the

nature of his underlying offense; (3) his “demanding and hostile attitude towards

people in his community”; and (4) the district court’s need to “protect[] the

community.” R. vol. 3, 62. These factors are “sufficiently compelling to support” the

sentence imposed. Gall, 552 U.S. at 50. In particular, Yazzie’s repeated violations of

the conditions of his supervised release are a “breach of trust.” United States v.

Steele, 603 F.3d 803, 805, 809 (10th Cir. 2010) (finding no abuse of discretion where

district court imposed 18-month prison sentence, despite applicable Guidelines range

of 4 to 10 months; noting that this was defendant’s “second breach of trust in a fairly

short time” and that such “recidivism is generally a reason for increased sentencing

severity”). Further, the record belies Yazzie’s argument that the court failed to

consider his mental health, and we see no indication that it gave insufficient weight

to that factor.

       Under these circumstances, Yazzie’s sentence isn’t “arbitrary, capricious,




                                            6
whimsical, or manifestly unreasonable.” Durham, 902 F.3d at 1236. Accordingly, we

affirm.


                                        Entered for the Court


                                        Nancy L. Moritz
                                        Circuit Judge




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