                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 September 25, 2009
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                            __________________________               Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-6037
 v.                                            (D.Ct. No. 5:08-CR-00104-M-1)
                                                        (W.D. Okla.)
 COREY RAY HARRISON,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not 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.



      Defendant-Appellant Corey Ray Harrison appeals his sentence following

revocation of his supervised release. He asserts the district court erred in

      *
         This order and judgment is not binding precedent except under the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.
considering prior violations of his supervised release in support of the instant

revocation, which he claims violates the doctrines of res judicata and collateral

estoppel. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291 and affirm Mr. Harrison’s ten-month term of imprisonment following

revocation of his supervised release.



                             I. Procedural Background

      In 2002, Mr. Harrison pled guilty to one count of robbery affecting

commerce, in violation of 18 U.S.C. § 1951, for which the district court sentenced

him to seventy-eight months imprisonment and three years supervised release.

On September 4, 2007, Mr. Harrison began his three-year term of supervised

release. On October 19, 2007, just six weeks after his supervised release began,

Mr. Harrison was charged with driving under the influence with a suspended

license and no insurance verification while transporting an open container of

alcohol. Several months later, on August 3, 2008, authorities arrested Mr.

Harrison on three misdemeanor charges for obstructing an officer, driving with a

suspended license, and transporting an open beer container, to which he pled

guilty.



      On October 1, 2008, Mr. Harrison’s federal probation officer filed a request

to modify the conditions or terms of Mr. Harrison’s supervision, based on his: (1)

                                         -2-
arrest on August 3, 2008, for the three misdemeanor charges; (2) leaving the

judicial district on the same date without prior permission; and (3) failure to

report to his probation officer the two misdemeanor charges for obstructing an

officer and transporting an open beer container. After Mr. Harrison waived a

hearing and consented to modification of the terms of his supervised release, the

district court ordered him to serve ninety days at the Oklahoma Halfway House

and to abide by all its policies and procedures. Based on various intervening

circumstances, Mr. Harrison did not begin his time at the halfway house until

months later, on January 20, 2009, at 7:30 p.m.



      Prior to his entry into the halfway house on January 20, 2009, Mr. Harrison

missed at least five substance abuse counseling sessions in violation of his

supervised release. In addition, Mr. Harrison violated halfway house rules for

possessing a cell phone in January 2009 and for refusing to submit to a

breathalyzer test on February 1, 2009. 1 Following an administrative hearing held

on February 3, 2009, for Mr. Harrison’s failure to submit to a breathalyzer test,

the halfway house terminated his stay. As a result, he did not complete most of

      1
         While the government and district court noted the cell phone incident
occurred on January 30, 2009, Mr. Harrison’s counsel pointed out it occurred on
January 21, 2009. Similarly, while the government and district court indicated
the breathalyzer incident occurred on January 31, 2009, halfway house incident
reports show Mr. Harrison’s refusal to submit to a breathalyzer test occurred on
February 1, 2009. The discrepancy in these dates does not, however, affect our
disposition of this appeal.

                                          -3-
his ninety-day term at the halfway house, spending only a couple of weeks at the

facility before his administrative hearing and termination.



      The government petitioned the district court for a warrant or summons for

revocation of Mr. Harrison’s supervised release, which it premised on his: (1)

arrest on August 3, 2008, for the three misdemeanor charges; (2) leaving the

judicial district on the same date without prior permission; (3) failure to report to

his probation officer the two misdemeanor charges for obstructing an officer and

transporting an open beer container; (4) violation of halfway house rules by

possessing a cell phone and refusing to submit to a breathalyzer test, resulting in

termination of his ninety-day term at the halfway house; and (5) failure to appear

at six substance abuse counseling sessions. The amended petition also referenced

his October 19, 2007 charge for driving under the influence with a suspended

license and no insurance verification while transporting an open container of

alcohol.



      At a revocation hearing held on February 6, 2009, Mr. Harrison’s counsel

raised an objection to the district court’s consideration of his first three violations

in support of revocation on grounds it considered those same violations in

October 2008 for the purpose of modifying the conditions of his supervised

release. Thereafter, the parties presented evidence in support or opposition of

                                           -4-
revocation. During his direct examination, Mr. Harrison admitted he committed

the three prior violations to which he pled guilty; had been charged with driving

under the influence at the beginning of his supervised release; and possessed a

cell phone in violation of halfway house rules, but testified no one asked him to

submit to a breathalyzer test on the day in question. In addition, Mr. Harrison

testified he missed his last substance abuse counseling session because he moved

into the halfway house on the same day and missed his other sessions because he

was working; however, on at least one of those occasions, he called his counselor

to let her know.



      In turn, Mr. Harrison’s probation officer testified Mr. Harrison missed six

counseling sessions, including one on January 20, 2009, the day he checked into

the halfway house, and that he was excused from only one counseling session due

to work. The government also provided, as evidence, the monthly treatment

reports showing Mr. Harrison failed to appear for the counseling sessions alleged.

In addition, the government submitted a halfway house incident report in which

two witnesses verified Mr. Harrison refused to submit to a breathalyzer test when

asked. Finally, the probation officer testified Mr. Harrison’s compliance with the

terms of his supervised release had been “very poor” and recounted he was

charged with driving under the influence shortly after his supervised release

started; allowed friends to tamper with the electronic monitor on his leg;

                                         -5-
participated in an altercation at a club in which he was stabbed, causing him to

miss work for several months; was arrested on August 3, 2008, for the three

misdemeanor charges; failed to report his offenses of obstruction of an officer and

transportation of an open beer container; and failed to report, as instructed, to the

halfway house by ten a.m. on January 20, 2009, and, instead, checked in that

evening.



      After confirming Mr. Harrison only completed approximately half of his

three-year term of supervised release, leaving eighteen to nineteen months to

serve, the district court revoked his supervised release and imposed a ten-month

term of imprisonment without further supervised release. In so doing, it stated it

was “concerned about the cumulative effect of the conduct that [Mr. Harrison]

exhibited while on supervised release.” R. Vol. 3 at 35. More specifically, the

district court explained:

      [I]f you take any one of these matters, they may not seem so large,
      certainly the criminal conduct. Even if the Court doesn’t even
      consider the criminal conduct, all of these [are] just kind of [a] litany
      of other conduct which, when you take it altogether, ... presents itself
      as just nearly a total disregard for the things that you are supposed to
      be doing or not doing during supervised release.

            While I guess a reason has been presented for many of the
      things, ... I just don’t think I need to excuse the cumulative effect of
      your conduct alleged in [the] Amended Petition.

             ....


                                          -6-
            [Y]ou certainly present [yourself] as a very intelligent young
      man and it is just the conduct, taken cumulatively, it is just
      inexcusable and shows a total disregard for what you are supposed to
      be doing during this time, Mr. Harrison.

             For that reason, I’m going to revoke – I will order that you
      serve ten months. I am not going to reimpose any supervised release
      at the end of that period because, quite frankly, I don’t know if you
      will comply, based upon this kind of history of non-compliance with
      just about everything that the Court asked you to do.

Id. at 35-36. Thereafter, the district court entered a formal judgment and

commitment order on revocation of supervised release, recounting the various

violations Mr. Harrison committed. In its order, it recognized that it had

previously modified Mr. Harrison’s conditions of release based on the conduct

related to the first three violations in the amended petition for revocation but

noted Mr. Harrison did not complete his ninety-day term in the halfway house.



                                   II. Discussion

      On appeal, Mr. Harrison contends the district court erred in considering his

previous violations of supervised release in support of revocation of his

supervised release, which he claims violates the doctrines of claim and issue

preclusion, which he mostly refers to as issues of res judicata and collateral

estoppel. Specifically, Mr. Harrison argues that because the district court

previously rendered a final, unappealed judgment on these violations when it

ordered the modification of his supervised release, it was barred from considering


                                          -7-
the same violations in his subsequent revocation hearing. In making this

argument, Mr. Harrison does not specifically complain the district court

improperly calculated his term of imprisonment on revocation, failed to

adequately explain its reasons for imposition of the sentence, or failed to consider

the sentencing factors in 18 U.S.C. § 3553(a) or the United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”), including Chapter 7 dealing with

revocation of supervised release. As a consequence, our review centers solely on

his argument the district court erred in considering his prior violations of

supervised release when it revoked his supervised release and imposed a term of

ten months imprisonment.



      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. See United States v. Tsosie, 376 F.3d 1210, 1217-18 (10 th Cir. 2004).

We will not reverse a sentence following revocation of supervised release if the

record establishes the sentence is “reasoned and reasonable.” United States v.

Contreras-Martinez, 409 F.3d 1236, 1241 (10 th Cir. 2005).



      “It is well-settled that supervised release is part of the penalty for the initial

offense.” See United States v. Cordova, 461 F.3d 1184, 1186 (10 th Cir. 2006)

(quotation marks and citation omitted). Thus, “the Supreme Court has

                                          -8-
distinguished revocation proceedings from criminal prosecutions on the ground

that a probationer already stands convicted of a crime.” Id. at 1187 (quotation

marks and citation omitted). We have acknowledged “[r]evocation deprives an

individual, not of the absolute liberty to which every citizen is entitled, but only

of the conditional liberty properly dependant on observance of special parole

restrictions,” leaving the convicted without certain substantive and procedural

constitutional rights. Id. at 1187-88 (quotation marks and citation omitted).



      Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583, when

a person violates the conditions of supervised release the district court may

modify the conditions of release or revoke the term of supervised release and

impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304 (10 th Cir.

2004); see also 18 U.S.C. § 3583(e)(2) and (3); Fed. R. Crim. P. 32.1(b). In

imposing a sentence following revocation of supervised release, the district court

is required to consider both the Guidelines Chapter 7 policy statements and the

factors provided in 18 U.S.C. § 3553(a). See Cordova, 461 F.3d at 1188. The

Chapter 7 policy statements apply to violations of probation and supervised

release and include advisory guideline ranges for sentences following revocation

of supervised release. See generally U.S.S.G. ch. 7 and § 7B1.3. Under Chapter

7 of the Guidelines, revocation of supervised release is considered appropriate for

a defendant “who, having been continued on supervision after a finding of

                                          -9-
violation, again violates the conditions of his supervision.” U.S.S.G. § 7B1.3

cmt. n.1.



      The 18 U.S.C. § 3553(a) sentencing factors include:

      The nature and circumstances of the offense; the history and
      characteristics of the defendant; the need for the sentence imposed to
      afford adequate deterrence, protect the public, and provide the
      defendant with needed educational or vocational training, medical
      care or other correctional treatment in the most effective manner;
      pertinent guidelines; pertinent policy statements; the need to avoid
      unwanted sentence disparities; and the need to provide restitution.

Cordova, 461 F.3d at 1188-89 (quoting Contreras-Martinez, 409 F.3d at 1242

n.3) (emphasis added). “The sentencing court ... is not required to consider

individually each factor listed in § 3553(a), nor is it required to recite any magic

words to show us that it fulfilled its responsibility to be mindful of the factors

that Congress has instructed it to consider before issuing a sentence.” Cordova,

461 F.3d at 1189 (quotation marks and citations omitted). Instead, the district

court must “state in open court the reasons for its imposition of the particular

sentence,” 18 U.S.C. § 3553(c), and satisfy us that it “has considered the parties’

arguments and has a reasoned basis for exercising [its] own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356 (2007).



      In this case, the district court provided its reasons for revoking Mr.

Harrison’s supervised release and we are satisfied it considered the parties’

                                          -10-
arguments and had a reasoned basis for revoking his supervised release and

imposing a term of imprisonment. To begin, it is obvious the district court

considered Mr. Harrison’s argument not to consider his prior violations, as

evidenced by (1) its express recognition it had previously modified Mr.

Harrison’s conditions of supervised release based on those violations, but that he

had not completed his ninety-day term in the halfway house imposed because of

those violations; and (2) its statement it was his cumulative conduct that

warranted revocation.



      Moreover, as previously stated, under Chapter 7 of the Guidelines,

revocation of supervised release is considered appropriate for a defendant, like

Mr. Harrison, “who, having been continued on supervision after a finding of

violation, again violates the conditions of his supervision.” U.S.S.G. § 7B1.3

cmt. n.1. Mr. Harrison’s collateral estoppel and res judicata arguments simply

ignore the fact that his supervised release was merely part of the penalty for the

initial offense and could be revoked in the event of repeated violations, even after

modification of his supervised release. In other words, the continuation of his

supervised release after his initial violations did not change the fact that his

supervised release remained a “conditional liberty” dependant on his observation

of the terms of his release, which he again violated. See Cordova, 461 F.3d at

1187-88.

                                          -11-
      In addition, under § 3553(a), a defendant’s history and characteristics are

included in the list of sentencing factors considered in revocation proceedings, so

that “[t]he very language of the statute instructs the sentencing court to consider

the defendant’s ‘history and characteristics.’” United States v. Hahn, 551 F.3d

977, 985 (10 th Cir. 2008) (quoting 18 U.S.C. § 3553(a)(1)), cert. denied, 129

S. Ct. 1687 (2009). Here, as previously indicated, the district court clearly

considered Mr. Harrison’s history and characteristics when it considered his

history of cumulative conduct, including non-compliance with the terms of his

supervised release. Mr. Harrison’s history of non-compliance included both his

prior violations as well as his more recent violations of the modified terms of his

supervised release. Indeed, those later violations caused his termination from the

halfway house. Given Mr. Harrison completed only two weeks of the ninety-day

term, we find it rather disingenuous for him to now argue that his prior violations,

which the district court relied on in imposing that ninety-day term, should not be

considered.



      We further note that even if the district court had not considered Mr.

Harrison’s first three violations of his supervised release, his additional violations

supported revocation and imposition of a term of imprisonment. As previously

noted, these violations included not only his infringement of the halfway house

rules which the district court ordered him to follow, but the fact his behavior at

                                         -12-
the halfway house prevented him from serving the ninety-day term there, which

was also a condition of his supervised release. They also included his absence

from various substance abuse counseling sessions. Thus, based solely on these

violations, we can conclude the district court’s revocation of his eighteen-month

term of supervised release and imposition of the ten-month term of imprisonment

was both “reasoned and reasonable.”



                                  III. Conclusion

      For these reasons, we AFFIRM Mr. Harrison’s ten-month term of

imprisonment following revocation of his supervised release.


                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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