                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 13, 2009
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,              Nos. 08-1432 and 08-1436
          v.                                            (D. Colorado)
 GEORGE CLINTON
 HELMSTETTER,                                 D.C. Nos. 1:05-CR-00163-EWN-1
                                                and 1:93-CR-00121-PAB-1)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      George Clinton Helmstetter was serving concurrent terms of supervised

release for convictions in two different cases. Upon his admitting to numerous

violations of the conditions of his supervised release, the United States District

Court for the District of Colorado revoked both terms of supervised release and

imposed consecutive sentences of four months’ and two years’ imprisonment.



      *
       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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
Mr. Helmstetter appeals both sentences, contending that the sentences imposed by

the district court were unreasonable and that the court abused its discretion by

imposing the sentences consecutively. We consolidate the two appeals for

purposes of this disposition. Having jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), we affirm.

I.    BACKGROUND

      On May 13, 1993, Mr. Helmstetter pleaded guilty to four counts of

unarmed bank robbery, a class C felony. He was sentenced to 125 months’

imprisonment to be followed by three years’ supervised release. His term of

supervised release began on June 18, 2002. After testing positive for the use of

controlled substances, Mr. Helmstetter agreed to a modification of the conditions

of his supervision to include residence at a community corrections facility.

Mr. Helmstetter’s residence at the facility was terminated when he was caught

providing alcohol to a fellow resident. His term of supervised release was

revoked on October 9, 2003, and he was sentenced to an additional eight months’

imprisonment to be followed by 24 months’ supervised release. His second term

of supervised release began on July 26, 2004.

      During the following two months, Mr. Helmstetter tested positive for the

use of controlled substances on several occasions. But before the conditions of

his supervision could be reevaluated, he was arrested and charged in federal

district court with five counts of passing and uttering counterfeit currency and one

                                        -2-
count of possessing counterfeit currency, all class C felonies. A jury found

Mr. Helmstetter guilty on all six counts on October 6, 2005. He was sentenced to

24 months’ imprisonment to be followed by three years’ supervised release.

      On February 23, 2006, Mr. Helmstetter’s supervised release in the bank-

robbery case was revoked because of his conviction in the counterfeiting case.

He was sentenced to 12 months’ imprisonment to be served consecutively to his

sentence in the counterfeiting case. His sentence was to be followed by 24

months’ supervised release to be served concurrently with the supervised-release

term imposed in the counterfeiting case.

      On November 7, 2007, Mr. Helmstetter’s terms of supervised release in

both the bank-robbery and the counterfeiting cases began. He again failed to

comply with the conditions of his supervised release. On January 16, 2008, a

probation officer filed a petition to revoke his supervised release in both the

bank-robbery and counterfeiting cases, alleging that he had used cocaine, opiates,

and marijuana; that he had failed to participate in drug treatment as directed by

his probation officer; and that he had failed to submit written reports to his

probation officer as required by the conditions of his supervision. At a hearing on

February 21, 2008, Mr. Helmstetter admitted to five alleged grade C violations of

the conditions of his supervised release. The district court deferred revocation of

his supervised release, but modified the conditions of his supervision to include

participation in a methadone-maintenance program.

                                         -3-
          Despite the leniency shown by the district court, Mr. Helmstetter continued

his pattern of supervised-release violations. On August 18, 2008, a probation

officer filed a supplemental petition to revoke Mr. Helmstetter’s supervised

release, alleging six additional supervised-release violations, including the failure

to submit written reports to his probation officer; the failure to participate in drug

treatment as directed by his probation officer; and the possession and use of

cocaine, marijuana, and heroin. On September 17, 2008, a hearing on the

supervised-release violations was scheduled in district court, but Mr. Helmstetter

failed to appear, and the district court issued a bench warrant for his arrest. On

September 29, 2008, the court held a detention hearing and ordered that

Mr. Helmstetter be detained.

          A hearing on Mr. Helmstetter’s supervised-release violations was

eventually held on October 24, 2008. Mr. Helmstetter admitted to the six

additional grade C supervised-release violations alleged in the supplemental

petition.

          Under 18 U.S.C. § 3583(e), a court may, after considering the factors set

forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and

(a)(7),

          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, if the court . . . finds by a preponderance of the evidence

                                            -4-
      that the defendant violated a condition of supervised release, except
      that a defendant whose term is revoked under this paragraph may not
      be required to serve on any such revocation . . . more than 2 years in
      prison if such offense is a class C . . . felony.

Id. § 3583(e)(3). Because Mr. Helmstetter had already served 20 months’

imprisonment upon prior revocations of his supervised release in the bank-

robbery case, he faced a statutory maximum of four months’ imprisonment in that

case. He faced a statutory maximum of two years’ imprisonment in the

counterfeiting case. The court has discretion to impose consecutive sentences for

supervised-release violations. See 18 U.S.C. § 3584. Under Chapter 7 of the

United States Sentencing Guidelines, the recommended sentencing range for Mr.

Helmstetter, who fell under criminal history category IV, was 6 to 12 months’

imprisonment in each case for grade C violations of the conditions of his

supervised release. See USSG § 7B1.4.

      Counsel for Mr. Helmstetter requested leniency from the court because of

Mr. Helmstetter’s longstanding drug addiction. In addition, she requested that

Mr. Helmstetter be permitted to serve concurrently any terms of imprisonment in

the two cases. Mr. Helmstetter then spoke to the court about his drug addiction

and the problems that he had confronted as a result of “growing up” in federal

custody. R., Vol. II at 14. He said that he had tried to comply with the

conditions of his supervised release. In response the prosecutor outlined Mr.




                                        -5-
Helmstetter’s criminal history for the court and argued that “if he has tried, he

certainly has not tried hard enough.” Id. at 16.

      After hearing the parties’ arguments, the court announced that despite the

guideline range of 6 to 12 months’ imprisonment, it intended to sentence

Mr. Helmstetter to the statutory maximum: four months’ imprisonment in the

bank-robbery case and two years’ imprisonment in the counterfeiting case. It

explained:

      The reason that the Court would intend to do that is not only because
      of the opportunity that you had that I previously referred to of being
      able to try to get your drug use reined in, but also because of the fact
      that the efforts it seemed which should have been directed towards
      compliance seemed even to some extent to be directed towards the
      opposite which was non-compliance.

             And you know, the use of different types of drugs, the multiple
      failures to comply really do, I think, reflect what [the probation
      officer] referred to as a dismal compliance history. For those reasons
      and given the fact you do have an extensive criminal history and
      have been under supervision for a very long period of time would
      argue in favor of a maximum sentence.

Id. at 17–18. The court then stated that it had taken into consideration the factors

in 18 U.S.C. § 3553(a) and proceeded to list the factors. After the court imposed

the maximum sentence, Mr. Helmstetter did not object either to the length of the

sentences or to their being served consecutively.

      On appeal Mr. Helmstetter contends that the sentences imposed by the

district court upon revocation of his terms of supervised release were




                                         -6-
unreasonable and that the court abused its discretion by imposing the sentences

consecutively.

II.   DISCUSSION

      “[I]t is now axiomatic that a sentence in excess of that recommended by the

Chapter 7 policy statements will be upheld if it can be determined from the record

to have been reasoned and reasonable.” United States v. Cordova, 461 F.3d 1184,

1188 (10th Cir. 2006) (internal quotation marks omitted). Although it is unclear

post-Booker whether we review the imposition of consecutive, rather than

concurrent, sentences for reasonableness or for an abuse of discretion, “[w]e need

not explore the exact contours of our . . . standard of review.” Id. (internal

quotation marks omitted). The district court did not abuse its discretion and the

sentence it imposed was both procedurally and substantively reasonable.

      “In imposing a sentence following revocation of supervised release, a

district court is required to consider both Chapter 7’s policy statements as well as

a number of the factors provided in 18 U.S.C. § 3553(a).” Id. (citation omitted);

see 18 U.S.C. § 3583(e). “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 (internal quotation marks omitted).




                                          -7-
       The record reveals that the district court adequately considered the relevant

sentencing factors. The court acknowledged that the guideline range was 6 to 12

months’ imprisonment. But it pointed out that Mr. Helmstetter had admitted to 11

serious violations of the conditions of his supervised release, that he had been

given a “considerable break” eight months earlier when it chose not to revoke his

supervised release after he had admitted to the first five violations, R., Vol. II at

17, and that it had taken into consideration the § 3553(a) factors in determining

the sentence. In light of Mr. Helmstetter’s “dismal compliance history” and

extensive criminal record, we cannot say that the district court’s imposition of

consecutive sentences of four months’ and two years’ imprisonment was not

reasoned or reasonable or was an abuse of discretion.

III.   CONCLUSION

       We AFFIRM the sentences imposed below.


                                                Entered for the Court


                                                Harris L Hartz
                                                Circuit Judge




                                          -8-
