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

                                                                         OCT 27 2004
                   UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                               Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

            Plaintiff - Appellant,
                                                       No. 03-4296
 v.                                            (D.C. No. 2:01-CR-267-DAK)
                                                         (D. Utah)
 HAROLD VINCENT ROBINSON,

            Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      Harold Vincent Robinson appeals his sentence of eighteen months

imprisonment followed by thirty-six months of supervised release for violating

the conditions of his supervised release. Robinson argues on appeal that his




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
sentence is plainly unreasonable. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and AFFIRM.

      In May 2001, Robinson was indicted for one count of possession of a short-

barreled shotgun in violation of 26 U.S.C. § 5861(d). Robinson pled guilty and

the district court sentenced him to forty-two months of probation with a special

condition that Robinson spend the first six months of his probation in a halfway

house. This sentence reflected a seven level downward departure by the district

court, reducing Robinson’s offense level from a level fifteen, as calculated in his

presentence report, to a level eight.

      Robinson’s probation officer filed a petition for an arrest warrant for

Robinson in April 2003 for Robinson’s alleged violation of the conditions of his

probation. The district court held a probation-violation hearing in November

2003, during which Robinson acknowledged his guilty plea to a state court charge

of assault with substantial bodily injury. Robinson’s probation was revoked in

December 2003, and the district court sentenced him to serve eighteen months in

prison, with thirty-six months of supervised release to follow. This sentence

represents an upward departure from the recommended Guidelines range of three

to nine months. Robinson appeals this sentence, arguing that the district court

erred by not properly considering the sentencing factors listed in 18 U.S.C.

§ 3553(a).


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      This court will review a sentence only in limited circumstances, including

when a sentence was “imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a)(4). “Because there

is no applicable sentencing guideline for the sentence to be imposed after a

violation of supervised release,” we review the sentence to determine if it is

“plainly unreasonable.” United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.

2004). We will not reverse a sentence imposed after revocation of supervised

release if the record reflects that the sentence is “reasoned and reasonable.”

United States v. Lee, 957 F.2d 770, 774 (10th Cir. 1992). Accepting the district

court’s findings of fact, unless clearly erroneous, we will review its interpretation

of the Sentencing Guidelines de novo. Kelley, 359 F.3d at 1304.

      A district court may revoke a term of supervised release and require the

defendant to serve time in prison if the court finds by a preponderance of the

evidence that the defendant violated a condition of supervised release. 18 U.S.C.

§ 3583(e)(3). Pursuant to 18 U.S.C. § 3583(e), the court may revoke a term of

supervised release only after considering the factors set forth in § 3553(a). Those

factors include, inter alia, 1) the nature and circumstances of the offense, 2) the

history and characteristics of the defendant, 3) the need for the sentence to afford

adequate deterrence to criminal conduct, 4) the need to protect the public from

further crimes of the defendant, 5) the need to provide the defendant with needed



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training, medical care, or correctional treatment, and 6) the sentencing range

established under the sentencing guidelines or the policy statements applicable to

a violation of supervised release. Kelley, 359 F.3d at 1304.

      Most significant to the matter before us, a district court must consider the

policy statements in Chapter 7 of the Sentencing Guidelines before imposing a

sentence for violating the conditions of supervised release. § 3553(a)(4)(B); Lee,

957 F.2d at 774 (“[policy statements] must be considered by the trial court in its

deliberations concerning punishment for violation of conditions of supervised

release.”). The relevant policy statements “are advisory rather than mandatory in

nature.” Lee, 957 F.2d at 773. For example, U.S.S.G. § 7B1.4 recommends terms

of imprisonment based on the defendant’s criminal history category and the grade

of the violation for which the defendant was sentenced to supervised release.

      District courts must consider Chapter 7’s policy statements along with the

factors listed in § 3553(a) before issuing a sentence. Sentencing judges need not

consider each factor individually, “[r]ather it is enough if the district court

considers § 3553(a) en masse and states its reasons for imposing a given

sentence.” Kelley, 359 F. 3d at 1305.

      In Lee, despite the sentencing court’s omission of any reference to § 7B1.4

in its order, we held that the court adequately considered the Chapter 7 policy

statements because the court stated at the revocation hearing: “I do not believe



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that the policy statements cited by counsel [U.S.S.G. Chapter 7] are mandatory.”

957 F.2d at 775. Additionally, because the sentencing court delineated the factors

it considered for sentencing, we held that the court satisfied the requirements of

§ 3583(e). In United States v. Brooks, 976 F.2d 1358 (10th Cir. 1992), we held

that a district court’s decision to revoke a term of supervised release and impose

prison time was “reasoned and reasonable” because the court stated the basis for

its sentencing determination and said that “the commissions’s [sic] policy

statements are only that, they are only policy statements, they are not binding on

the court.” 976 F.2d at 1359. Finally, in Kelley, the district court “noted that it

considered the policy statements in Chapter 7,” Kelley, 359 F.3d at 1304, and

“explained the other factors it took into account,” Id. at 1305, leading us to

conclude that the “sentence was reasoned and reasonable . . . .” Id.

      The district court in the instant case relied on Chapter 7 of the Sentencing

Guidelines more explicitly than the courts in Lee, Brooks, or Kelley did. The

court began the sentencing hearing by noting: “[w]e have an original Offense

Level of 15 and original Criminal History Category of I, a grade violation C, a

guideline range of three to nine.” (III R. at 3.) The government referred the court

to Application Note 4 in the commentary to § 7B1.4 (III R. at 6-8) which states:

“[w]here the original sentence was the result of a downward departure . . . that

resulted in a sentence below the guideline range applicable to the defendant’s


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underlying conduct, an upward departure may be warranted.” U.S.S.G. § 7B1.4,

cmt. n.4. When Robinson argued that the recommended sentencing range takes

into account his guilty plea to the state charge, the court responded, “[w]hat it

doesn’t take into account is the downward departure he previously received with

an admonition he stay out of trouble, which he obviously has not done.” (III R. at

12.) Finally, the court stated that it formulated Robinson’s sentence “under

7B1.4, Application Note 4.” (III R. at 16.)

      The district court fulfilled the requirements of §§ 3583(e) and 3553(a).

Especially because we do not “demand that the district court 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,” Kelley, 359 F.3d at 1305 (quotations

omitted), we conclude that a sentence of eighteen months in prison with thirty-six

months of supervised release to follow is reasoned and reasonable in this case.

      Accordingly, we AFFIRM the sentence imposed by the district court.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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