                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                      December 13, 2005
                     UNITED STATES COURT OF APPEALS
                                                                         Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES of AMERICA,

          Plaintiff-Appellee,
                                                        No. 05-6020
 v.
                                                  (D.C. No. CR-01-292-R)
                                                        (W.D. Okla.)
 VISANO D. NELSON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, HENRY and MCKAY, Circuit Judges.


      Defendant-Appellant Visano Nelson (“Nelson”) challenges the district

court’s decision to sentence him to fifteen months’ imprisonment upon revocation

of supervised release, four months longer than the top of the range recommended




      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
by Chapter 7 advisory policy statements. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.

I. Factual Background

      In October 1992, an Alaska jury convicted Nelson of conspiracy, bank

robbery, and use of a firearm in relation to a crime of violence, in violation of 18

U.S.C. §§ 371, 2113(a) & (d), and 924(c), for which the court sentenced him to

110 months’ imprisonment and four years’ supervised release. On September 6,

2000, the District Court for the District of Alaska released Nelson to supervision,

and, on February 2, 2001, transferred his supervision to the Western District of

Oklahoma.

      On July 3, 2001, the Oklahoma district court revoked the term of Nelson’s

supervised release—after Nelson had tested positive for cocaine usage on nine

occasions and for alcohol usage while residing in a halfway house—and sentenced

Nelson to six-months imprisonment followed by thirty-six-months supervised

release. On August 6, 2002, the district court sentenced Nelson to twelve months

and one day in prison and twenty-four months of supervised release after revoking

the term of Nelson’s second supervised release because Nelson had tested positive

for cocaine usage on four occasions, failed to report for urine testing on two

occasions, and tested positive for alcohol usage on one occasion. On July 8,

2004, the district court revoked the term of Nelson’s third supervised release after


                                        -2-
finding that he willfully failed to make court-ordered restitution payments and

failed to appear at the original revocation hearing and sentenced Nelson to 90-

days’ imprisonment and 15-months’ supervised release.

      On December 14, 2004, the district court revoked the term of Nelson’s

fourth supervised release after finding, upon stipulation of the parties, that Nelson

had used cocaine on two occasions. The advisory revocation range of

imprisonment pursuant to Federal Sentencing Guidelines Chapter 7 specified a

revocation range of imprisonment of five to eleven months based on a Grade C

violation and Nelson’s criminal history category III. See U.S.S.G. § 7B1.1-1.4.

At the revocation hearing, the district court noted that Nelson’s supervised release

had been revoked three previous times. The court further stated that:

      I believe the guidelines are five to 11 months and the maximum term
      of imprisonment is three years, less 21 months previously been [sic]
      revoked; 1
      ...
      You [Nelson] have been a scofflaw ever since I’ve come in contact
      with you. You’ve ignored the orders of this court. You’ve violated the
      law repeatedly. And as a result of that, it’s the judgment of the court
      the defendant will be sentenced to 15 months incarceration.
      ...
      There obviously will be no supervised release. . . . You’re a failure of
      supervised release, but you must be punished for what you have done.
      And that’s the judgment of the Court.


      1
        The statutory maximum term of imprisonment Nelson could receive upon
revocation of his supervised release was 15 months, which is the maximum
provided by 18 U.S.C. § 3583—three years—minus the total time Nelson served
based on his three previous revocations—21 months.

                                        -3-
This appeal, in which Nelson challenges only the district court’s decision to

sentence him outside the range recommended by the Guidelines, followed.




II. Discussion

      Nelson contends that his sentence, which was four months above the

recommended range, was unreasonable because the district court improperly

relied on Nelson’s “recidivism” to depart from the recommended range of

punishment and did so without referring to recidivism in the context of any of the

other statutory factors the court is required to consider. Reviewing the district

court’s legal interpretation of the Sentencing Guidelines de novo, as we must, see

United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2005), we reject Nelson’s

argument for two reasons.

      First, in sentencing a defendant after revocation of supervised release

pursuant to 18 U.S.C. § 3583(e)(3), the district court must consider the factors set

forth in 18 U.S.C. § 3553(a) and, specifically, the policy statements in Chapter 7

of the Guidelines; however, we do not require the district court to engage in “a

ritualistic incantation” or to “recite any magic words” to fulfill this responsibility.

Id. at 1304-05 (quotations omitted). We are satisfied that the district court

considered all necessary factors in sentencing Nelson upon revocation of his


                                         -4-
supervised release. At the revocation hearing, the judge confirmed that it

recognized what the policy statement range and the statutory maximum were for

Nelson’s violation. The judge then gave Nelson’s attorney an opportunity to

argue for a lesser sentence and offered Nelson the opportunity to make his own

statement. The court was not required to individually consider each § 3553(a)

factor; it is enough that the court considered the factors “en masse.” Id. at 1305.

See also United States v. Rose, 185 F.3d 1108, 1111 (10th Cir. 1999) (indicating

that the appeals court will assume the district court considered each of the factors

absent a contrary indication in the record).

      Second, pre- and post-Booker, “imposition of a sentence in excess of that

recommended by the Chapter 7 policy statements of the Sentencing Guidelines

will be upheld ‘if it can be determined from the record to have been reasoned and

reasonable.’” United States Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005)

(quoting United States v. Tsosie, 376 F.3d 1210, 1218-19 (10th Cir.2004).

Accordingly, a district court may easily depart from the range the statements

suggest, because they have always been advisory, United States v. Contreras-

Martinez, 409 F.3d 1236, 1240 (10th Cir. 2005), if the sentencing court gives

appropriate reasons for its actions, see 18 U.S.C. § 3553(c).

      Nelson claims the district court’s consideration of “recidivism” was an

improper factor to rely on in imposing the sentence. “The Sentencing Guidelines


                                         -5-
set forth factors that must be considered, but that list is not all-inclusive.”

Tedford, 405 F.3d at 1161 (citations omitted). Additionally, when read in

context, the factor Nelson challenges is not an impermissible analysis. We have

made it clear that a district court may appropriately consider “the futility of

continued supervision” as a reason to depart from the Guideline range for

sentences upon the revocation of supervised release. See Tedford, 405 F.3d at

1161-62. 2 The district court did precisely this. The judge stated that it was

departing from the suggested range because Nelson ignored the district court’s

orders on four separate occasions, violated the law repeatedly, and was a “failure

of supervised release.” In a period of just over four years, the district court

revoked Nelson’s supervised release on four separate occasions after finding,

many times upon Nelson’s own stipulation, that he had repeatedly broken the law

and violated the terms of his release. It was therefore “reasoned and reasonable”

for the court to impose the sentence that it did.

III. Conclusion

      Our review of the record convinces us that the district court committed no

error in exercising its discretion and sentencing Nelson to a term in excess of the




      2
        We therefore also reject Nelson’s argument that the district court was
precluded from considering the prior revocations of his supervised release
because the suggested sentence range already accounted for repeat violators.

                                          -6-
Guideline-recommended range upon revocation of Nelson’s supervised release.

We therefore AFFIRM the district court’s sentence.




                                     ENTERED FOR THE COURT




                                     David M. Ebel
                                     Circuit Judge




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