                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                         UNITED STATES COURT OF APPEALS                    March 9, 2010
                                    TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                          No. 09-1435
                                                     (D.C. No. 06-CR-00438-LTB)
 MAMADOU FOFANA, a/k/a Mamadou                                 (D. Colo.)
 Cisse, a/k/a Amadou Cisse,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before TACHA, BRISCOE, and O’BRIEN, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Defendant Mamadou Fofana appeals from the district court’s revocation of his

term of supervised release and the 20-month consecutive term of imprisonment imposed


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
in connection with that revocation. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we affirm.

                                              I

       In October 2006, Fofana was indicted on one count of using a false passport, in

violation of 18 U.S.C. § 1543, and one count of using a fraudulently obtained social

security number, in violation of 42 U.S.C. § 408(a)(7)(A). Fofana subsequently pled

guilty to the second count in the indictment and, on May 17, 2007, was sentenced to time

served plus a 3-year term of supervised release. The conditions of his supervised release

required him, in pertinent part, to refrain from “commit[ting] another federal, state or

local crime.” ROA, Vol. 1 at 9.

       On October 17, 2008, Fofana’s probation officer filed a petition with the district

court alleging that Fofana had violated the terms of his supervised release by committing

the offense of “Assault 1 - Serious Bodily Injury with Deadly Weapon, in violation of

Colorado Statute 18-3-202(1)(a),” and by failing to report his arrest in connection with

that offense. Id. at 18. On April 20, 2009, Fofana’s probation officer filed a

supplemental petition with the district court alleging that Fofana had also violated the

terms of his supervised release by committing “the offense of Protection Order Violation

- Civil Domestic Violence, in violation of Colorado State Statute 18-6-803.5 . . . .” Id. at

22.

       On June 29, 2009, Fofana was tried and convicted by a jury in Colorado state court

of second degree assault with provocation, a “Class 6 felony” under Colorado state law.

                                              2
Id. at 26. Fofana was subsequently sentenced in connection with that conviction to 30

months’ imprisonment in the custody of the Colorado Department of Corrections.

       On September 23, 2009, the district court conducted a hearing on the alleged

violations of supervised release. At the conclusion of the evidence, the district court

found that Fofana “violated his conditions of supervised release by committing . . . the

felony offense of the second degree assault, injury with a deadly weapon in the heat of

passion, in violation . . . of Colorado state law . . . .” Id., Vol. 2 at 11. The district court

noted this “constitute[d] a Grade A violation,” id., that “required” the revocation of

supervised release, id. at 14. In assessing the sentence to be imposed upon Fofana, the

district court noted that one of the victims of the assault “suffer[ed] serious bodily injury

in the form of a depressed skull fracture and a small subdural hematoma, injuries

involving a substantial risk of death.” Id. at 20. The district court further noted it was not

persuaded by Fofana’s counsel that a sentence below the policy statement advisory

Guideline range of 18 to 24 months was appropriate. Id. at 21. Ultimately, the district

court sentenced Fofana to a term of imprisonment of 20 months, “consecutive to any

sentence he [was] serving with the Colorado State Department of Corrections.” Id. at 23.

                                                II

       Fofana raises two issues on appeal. First, he contends the district court erred in

concluding that his commission of a Grade A violation required the revocation of his

supervised release. Second, he contends that it was plainly unreasonable for the district

court to order the imposed term of imprisonment to run consecutively to any sentence he

                                                3
was serving with the Colorado Department of Corrections. For the reasons that follow,

we conclude that both issues lack merit.

       a) Revocation of supervised release

       Section 7B1.1 of the United States Sentencing Guidelines outlines “three grades of

. . . supervised release violations . . . .” U.S.S.G. § 7B1.1(a). It is undisputed that

Fofana’s commission of the felony offense of second degree assault with provocation

under Colorado state law constitutes a “Grade A” violation of his supervised release. See

U.S.S.G. § 7B1.1(a)(1) (defining Grade A violation to include a “state . . . offense

punishable by a term of imprisonment exceeding one year that . . . is a crime of

violence”).

       In turn, § 7B1.3 of the Sentencing Guidelines outlines the circumstances under

which the various grades of supervised release violations should, in the Sentencing

Commission’s view, result in the revocation of a defendant’s term of supervised release.

Of relevance here is subsection (a)(1), which states: “Upon a finding of a Grade A . . .

violation, the court shall revoke probation or supervised release.” U.S.S.G. § 7B1.3(a)(1).

The district court in this case was obviously referring to § 7B1.3(a)(1) when it stated:

“Well, under the policy statements of the [Sentencing] Guidelines, this being a Grade A

violation, it is required that I revoke supervised release.” ROA, Vol. 2 at 14.

       Fofana argues on appeal that the district court “erred in believing revocation was

mandatory under” § 7B1.3(a)(1). Aplt. Br. at 9. In support, Fofana notes that § 7B1.3 is

merely a non-binding “policy statement” issued by the United States Sentencing

                                               4
Commission. Fofana further notes that although 18 U.S.C. § 3583(g) mandates the

revocation of supervised release in certain instances, his violation of supervised release

does not fall within any of those statutory categories.

       Normally, we review a district court’s decision to revoke a term of supervised

release for abuse of discretion. United States v. Metzener, 584 F.3d 928, 932 (10th Cir.

2009). Because Fofana did not raise these arguments below, however, we review his

arguments only for plain error.1 United States v. Cordova, 461 F.3d 1184, 1186 (10th Cir.

2006). “Plain error occurs when there is (i) error, (ii) that is plain, which (iii) affects the

defendant’s substantial rights, and which (iv) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Ruiz-Terrazas, 477 F.3d

1196, 1199 (10th Cir. 2007).

       Having reviewed the record on appeal, we are not persuaded there was any error

on the part of the district court, let alone plain error. After hearing testimony from

Fofana’s probation officer and finding that Fofana had violated the terms of his

supervised release by engaging in criminal conduct in violation of Colorado state law, the

district court asked the parties for their recommended dispositions. In doing so, the

district court specifically stated that it “need[ed] some clarification as to whether the

       1
         As noted by the government, Fofana’s counsel conceded at the revocation
hearing that “the Court must revoke” Fofana’s supervised release. ROA, Vol. 2 at 20. In
doing so, Fofana’s counsel arguably waived the arguments now asserted by Fofana on
appeal. See United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007)
(differentiating between waived and forfeited issues). Because Fofana cannot prevail
under any standard of review, however, we find it unnecessary to conclusively resolve
whether the arguments have been waived.

                                               5
sentence, if revocation ensues, is to be concurrent or consecutive to any sentence [Fofana

was then] serving under the state case.” ROA, Vol. 2 at 13 (emphasis added). Although

the district court later in the hearing referred to revocation of supervised release as being

“required,” id. at 14, or “mandatory,” id. at 20, for a Grade A violation, it also twice noted

that the Sentencing Guideline provisions pertaining to revocation of supervised release

were “policy statements,” id. at 14, and it noted that, in the context of a “supervised

release violation” hearing, it possessed “even more discretion than . . . in [an] original

sentencing” proceeding. Id. at 18. Considered together, these comments do not clearly

indicate that the district court believed it was bound by the Sentencing Guidelines to

revoke Fofana’s supervised release.

       Even assuming, for purposes of argument, that Fofana could satisfy the first two

prongs of the plain error test, he clearly cannot establish the third prong of that test. To

meet the third prong, Fofana must demonstrate that his substantial rights were affected,

which requires a showing that the result of the revocation proceeding would have been

different but for the asserted error. See United States v. Romero, 491 F.3d 1173, 1179

(10th Cir. 2007). In other words, Fofana must demonstrate that, but for the district

court’s purported misapprehension that it was required under the Sentencing Guidelines

to revoke Fofana’s supervised release, it would not have done so and would have allowed

Fofana to remain on supervised release. Notably, Fofana does not even assert, much less

establish, that his term of supervised release would not have been revoked absent the

purported error. And, in any event, nothing in the record on appeal remotely suggests the

                                              6
district court would have, absent the purported error, refrained from revoking Fofana’s

supervised release.

       b) Imposition of consecutive sentence

       In his second issue on appeal, Fofana challenges the district court’s decision to run

his 20-month term of imprisonment consecutively to any sentence he was then serving

under the supervision of the Colorado Department of Corrections. Fofana, citing 18

U.S.C. § 3583(e)(3), asserts that any term of imprisonment imposed in connection with

the revocation of supervised release is not a “new term of imprisonment,” but rather is a

conversion of the original term of supervised release. Aplt. Br. at 10. In other words, he

asserts, a “defendant is just finishing out the term of imprisonment imposed upon the

original conviction.” Id. Consequently, Fofana asserts, requiring the term of

imprisonment in this context to run “consecutive to any undischarged term of

imprisonment the defendant is currently serving[] is altering the original term of

imprisonment and, as such, is plainly unreasonable.” Id.

       Fofana’s arguments, however, are based on a misreading of § 3583(e)(3). That

subsection authorizes a district court to

       revoke a term of supervised release, and require the defendant to serve in
       prison all or part of the term of supervised release authorized by statute for
       the offense that resulted in such term of supervised release without credit
       for time previously served on postrelease supervision . . . .

18 U.S.C. § 3583(e)(3). Although Fofana interprets the initial portion of this quoted

language as authorizing a district court to convert the remainder of a defendant’s original


                                               7
term of supervised release into a term of imprisonment, that interpretation ignores the

remaining portion of the statutory language. Read together, the quoted statutory language

authorizes a district court to impose a new term of imprisonment equal to “all or part of

the term of supervised release authorized by statute for the offense that resulted in” the

original term of supervised release, and that, in imposing this new term of imprisonment,

the defendant is not entitled to “credit for time previously served” on the original term of

supervised release.

       In turn, as we have noted, 18 U.S.C. § 3584(a) affords discretion to a district court,

in the context of the revocation of supervised release, to order the new term of

imprisonment to run concurrently or consecutively with any other terms of imprisonment

then being served by the defendant. United States v. Rodriguez-Quintanilla, 442 F.3d

1254, 1256 (10th Cir. 2006). A district court’s discretion in this regard “is guided by the

factors delineated [in] 18 U.S.C. § 3553(a), which include the characteristics of the

offense and the defendant, the need for deterrence and the protection of the public, and . .

. ‘the applicable guidelines or policy statements issued by the Sentencing Commission.’”

Id. (quoting 18 U.S.C. § 3553(a); internal citation omitted). Notably, the Sentencing

Commission has issued a policy statement applicable to this situation:

       Any term of imprisonment imposed upon the revocation of . . . supervised
       release shall be ordered to be served consecutively to any sentence of
       imprisonment that the defendant is serving, whether or not the sentence of
       imprisonment being served resulted from the conduct that is the basis of the
       revocation of . . . supervised release.

U.S.S.G. § 7B1.3(f).

                                              8
       Thus, the district court’s order in this case requiring Fofana to serve his new 20-

month term of imprisonment consecutively to any sentence Fofana was serving in the

custody of the Colorado Department of Corrections is “in accordance with the advisory

policy statement contained in § 7B1.3(f).” Rodriguez-Quintanilla, 442 F.3d at 1256. And

it is Fofana’s “burden to demonstrate that the District Court should [have] exercise[d] its

discretion to impose concurrent sentences in spite of that [advisory policy] statement.”

Id. Because Fofana has failed to meet this burden, we conclude the district court neither

abused its discretion, nor imposed an unreasonable sentence. Id. at 1258.

       We AFFIRM both the revocation of Fofana’s supervised release and the

consecutive sentence imposed.



                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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