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

                                     TENTH CIRCUIT                           May 29, 2015

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                       No. 14-7081
                                                          (E.D. Oklahoma)
    RONALD EARL OSBORN,                           (D.C. No. 6:10-CR-00019-RAW-1)

          Defendant - Appellant.




                                  ORDER AND JUDGMENT*


Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.



         Defendant Ronald Earl Osborn challenges the substantive reasonableness of his

sentence after the second revocation of his supervised release. The United States District

Court for the Eastern District of Oklahoma sentenced Defendant to 12 months’
*
 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 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 This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
imprisonment, one month above the range specified by the United States Sentencing

Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and

we affirm.

       In May 2010 Defendant pleaded guilty to being a felon in possession of a firearm,

see 18 U.S.C. § 922(g)(1); possession of an unregistered firearm, see 26 U.S.C. §§ 5845,

5861(d), and 5871; and being a felon in possession of explosive materials, see 18 U.S.C.

§ 842(i)(1). The district court sentenced him to 37 months’ imprisonment and 24 months

of supervised release. He began his term of supervised release on November 30, 2012.

Shortly thereafter, he began violating the conditions of his supervised release. According

to a report by the probation officer, he tested positive for marijuana and

methamphetamine on December 5, 2012, and admitted to using methamphetamine in

April 2013. The probation officer instructed Defendant to participate in substance-abuse

therapy through the Veterans Administration (VA) and said that he would be subjected to

more frequent urine tests; but no court action was requested, and the court did not take

action. In June 2013 the probation officer submitted a second report stating that

Defendant had admitted to using marijuana to celebrate his birthday. The probation

officer again instructed Defendant to participate in substance-abuse treatment through the

VA. Once again, the probation officer did not request court action and the court did not

take any. Four months later the probation officer submitted a report saying that

Defendant admitted to being in constant contact with James Cedric Baird, contrary to the

condition that he not associate with any person convicted of a felony. In addition, he had
                                             2
failed to report to the probation officer in July, August, and September. After receiving a

verbal reprimand from the probation officer, Defendant demonstrated a renewed sense of

purpose and indicated that he was taking steps to terminate all contact with Mr. Baird.

For a third time, the probation officer did not request court action and the court agreed.

       On January 14, 2014, the probation officer petitioned the district court to revoke

Defendant’s supervised release because of his continuing violations of conditions of

supervised release. The petition said that in December 2013 Defendant was arrested and

charged with driving under the influence; driving with a suspended, canceled, or revoked

license; and failing to carry insurance verification. Moreover, Defendant failed to notify

his probation officer of this arrest within 72 hours of the arrest or in his monthly written

report. Finally, Defendant failed to report to his probation officer for an additional three

months. At the revocation hearing on March 6, 2014, Defendant stipulated to the

violations and the court sentenced him to three months’ imprisonment followed by 24

months of supervised release.

       On July 1, 2014, the probation officer submitted a second petition to revoke

Defendant’s supervised release. The petition alleged that on June 6 and 11 Defendant

submitted urine samples that tested positive for methamphetamine. Also, two days after

an orientation meeting in which the probation officer instructed Defendant not to have

contact with Mr. Baird, the probation officer observed Mr. Baird inside Defendant’s

house. At the revocation hearing Defendant argued that the government was required to

call as a witness the lab technician who prepared the samples, and the court reset the
                                              3
hearing. At the rescheduled hearing the court considered only the violation related to

Defendant’s association with a convicted felon and not the drug-related violations.

Defendant did not contest the violation based on his contact with Mr. Baird.

       The district court noted that the guidelines sentencing range was 5 to 11 months

for the supervised-release violation, and the statutory maximum was 21 months. The

government argued that the court’s prior leniency warranted a more significant

punishment. In mitigation, defense counsel explained that Defendant had lived with

Mr. Baird for approximately 15 years, he considered Mr. Baird to be family, and one of

Mr. Baird’s brothers took care of Defendant’s finances. The court then sentenced

Defendant to 12 months’ imprisonment without any supervised release, stating that he

had “shown little regard for the rules and conditions of supervised release.” R., Vol. II at

32.

       On appeal Defendant argues that the sentence imposed was substantively

unreasonable. In assessing the substantive reasonableness of a sentence, we examine the

relevant factors set out in 18 U.S.C. § 3553(a). See United States v. McBride, 633 F.3d

1229, 1231‒32 (10th Cir. 2011). We review the reasonableness of “all sentences—

whether inside, just outside, or significantly outside the Guidelines range—under a

deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).

“A district court abuses its discretion when it renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. Damato, 672 F.3d

832, 838 (10th Cir. 2012) (internal quotation marks omitted).
                                              4
       Defendant contends that a 12-month sentence was not warranted in light of his

history and the nature and circumstances of his offense. See 18 U.S.C. § 3553(a)(1). He

argues that associating with a felon is a victimless offense and did not involve the

commission of a new crime; that the offense was merely self-harming and there was no

need to protect the public from Defendant or to be concerned about respect for the law,

see id. § 3553(a)(2)(A),(C); and that Mr. Baird was like family to him. But the guidelines

state that “at revocation the court should sanction primarily the defendant’s breach of

trust, while taking into account, to a limited degree, the seriousness of the underlying

violation and the criminal history of the violator.” USSG ch. 7, pt. A, introductory

cmt. (b). And we have recognized that “[u]nder the guidelines, recidivism is generally a

reason for increased sentencing severity.” United States v. Steele, 603 F.3d 803, 809

(10th Cir. 2010) (footnote omitted). Here, Defendant repeatedly breached the court’s

trust by violating his conditions of supervised release. In fashioning a sentence, the

district court properly focused on Defendant’s disregard for the rules of supervision.

Further, Defendant had not responded to leniency. On three occasions the court did not

take any action in response to reports of Defendant’s supervised-release violations.

When the court revoked Defendant’s supervised release the first time, it imposed a prison

sentence below the advisory guidelines range. See USSG § 7B1.4(a) (5-11 month range

for grade C violation and criminal-history category III). Given this prior leniency, the

court’s imposition of a sentence one month above the guidelines range upon a second

revocation was eminently reasonable.
                                             5
      Defendant has failed to demonstrate that the district court abused its discretion in

imposing a 12-month sentence.

      We AFFIRM.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




                                            6
