                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 14, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 11-8016
          v.                                             (D. of Wyo.)
 VINCENT BAD HEART BULL,                        (D.C. No. 97-CR-00099-WFD)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.


      Vincent Bad Heart Bull challenges the sentence he received for violations

of the terms of his supervised release. The district court sentenced him to 24

months in prison for the violations, all of which occurred within a few months of

his release from prison after serving a 15-year sentence under the Armed Career

Criminal Act. Bad Heart Bull now challenges the procedural and substantive

reasonableness of his sentence. He also argues that the new three year term of




      *
         This order and judgment is not binding precedent except under the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.
supervised release, coupled with two years in prison, exceeds the total amount of

supervised release time authorized by statute.

       We conclude the sentence was reasonable and lawful, and AFFIRM the

district court.



                                     I. Facts

       After serving a 15-year prison term, Bad Heart Bull was released in

November 2010. His sentence included a three-year term of supervised release,

with a number of conditions. Despite these restrictions, within a short time after

his release he accumulated five violations for marijuana and prescription drug

use, and several alcohol-related offenses.

       The final violation occurred in February 2011, when Bad Heart Bull, while

intoxicated, encountered a group of young children who, by his account, taunted

him with a racial epithet, calling him a “drunken Indian.” R. 30. He claims they

grabbed at him and that he tried to slap them away. In a different account of the

proceedings, which was included in the report that Bad Heart Bull pleaded no

contest to, a ten-year-old girl told the police that a drunk man, whom she later

identified as Bad Heart Bull, banged on the door and window of her dance class

building, frightening her, and later tried to grab her as she waited outside for her

mother to pick her up. He admits to slapping at the girls who were touching his

coat, but not to the more serious allegation of trying to grab a child.

                                         -2-
      For this incident, he was charged in state court with, and pled no contest to,

being a “pedestrian under the influence of alcohol” in violation of Wyoming

Statute § 31-5-612 and to “unlawful contact” in violation of Wyoming Statute

§ 6-2-501(g)(i) and (h). He was sentenced to thirty days in jail and six months of

unsupervised probation.

      In addition to the state criminal charges, these violations of supervised

release are all classified as Grade C violations of the terms of supervised release

under the United States Sentencing Guidelines. USSG § 7B1.1. Given Bad Heart

Bull’s criminal history, the Guidelines recommend a supervision revocation of 8

to 14 months for Grade C. The parties do not contest that this was the relevant

guidelines range.

      The probation officer recommended an upward variance based on Bad

Heart Bull’s lengthy criminal history, the fact that the violations began almost

immediately after he was released from prison, and the risk he poses to the

community. Bad Heart Bull, during his allocution, asked the court to take into

account the hard work he was doing in counseling, the damage he suffered from

sexual abuse both as a child and as a prisoner, and his struggle to stay sober and

change his life. His lawyer also argued against an upward variance on these

grounds, saying that the court should instead give a sentence within the guidelines

range for these Grade C violations, followed by a long stint in residential drug

and alcohol therapy.

                                         -3-
      The court sentenced Bad Heart Bull to 24 months of confinement and three

years of supervised release, specifying that the first six months of his supervision

would be served in an inpatient treatment facility. The court explained that its

decision to depart upward was based on the incident involving the young

girl—the “events that took place . . . as murky as they may be, raise a red flag for

the Court; that to simply sentence you within the guideline range does not achieve

a just sentence.” R. 58.

      Bad Heart Bull objects to the adequacy of the district court’s explanation of

his sentence and the reasonableness of the length of that sentence.



                                 II. Discussion

      We review the procedural and substantive reasonableness of a sentence

under the familiar abuse-of-discretion standard. Gall v. United States, 552 U.S.

38, 51 (2007). We conduct this reasonableness review by “first ensur[ing] that

the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence—

including an explanation for any deviation from the Guidelines range.” Id. We

then “consider the substantive reasonableness of the sentence imposed,” taking

into account “the totality of the circumstances.” Id.

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      A. Procedural Reasonableness

      Bad Heart Bull does not contest that the district court correctly calculated

the guidelines range or argue that the facts the court considered were inaccurate

or inappropriate. Instead, he argues the court failed to take into account all the

relevant factors under § 3553(a), erroneously focusing exclusively on community

protection. He claims that factor alone does not justify a 12-month increase in his

sentence above the sentencing guidelines recommendation. We disagree.

      “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).” United States v.

Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006) (citations omitted). These factors

include,

      [T]he 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.

United States v. Contreras-Martinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005).

“The sentencing court, however, 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




                                          -5-
instructed it to consider before issuing a sentence.” Cordova, 461 F.3d at 1189

(internal quotations and citations omitted).

      At the sentencing hearing, the district court reviewed the “circumstances”

of the violations in detail, explaining why they were more serious than their low

classification would otherwise suggest, particularly the encounter with a ten-year-

old girl. The court listened to Bad Heart Bull and his attorney present mitigating

factors—the children allegedly used a racial taunt—but found that insufficient to

justify Bad Heart Bull’s reaction. R. 16–20, 24–34.

      The district court also took into account “the history and characteristics of

the defendant,” discussing Bad Heart Bull’s lengthy criminal history and well-

documented substance abuse issues. R. 38–39. Bad Heart Bull had a long history

of alcohol abuse and had spent 33 of the last 37 years in prison. R. 41.

      Given the district court’s evaluation of the § 3553(a) factors, Bad Heart

Bull argues that the court failed “to the provide the defendant with needed

educational or vocational training, medical care or other correctional treatment in

the most effective manner.” § 3553(a)(2)(D). Bad Heart Bull contends he would

be better served by more treatment and less incarceration. The court did consider

this factor and recommended that Bad Heart Bull participate in a drug treatment

program while in prison and a residential rehabilitation program after release. In

rejecting Bad Heart Bull’s request for more residential treatment, the court noted

Bad Heart Bull’s long history of unsuccessful treatment, particularly his decision

                                         -6-
to rebuff an opportunity to stay in a residential treatment program after his release

from prison in 2010: “There's no taunting little girl to blame for this. This—this

is an opportunity you had and you messed it up.” R. 24–25. In short, the court

considered the possibility of long-term residential treatment, and rejected it as

insufficient protection for the community and unlikely to succeed.

         Finally, the court found Bad Heart Bull was a danger to the community and

that a two-year sentence was necessary “to protect the public from further crimes

of the defendant.” § 3553(a)(2)(C).

         These violations, though they be Class C violations, send up
         red flares to the Court that you, in your present condition, pose
         a clear and present danger to the community and that a
         sentence within the guideline range would not likely deter you
         from future such conduct any more than the sentence at the
         minimum range authorized by law which I imposed upon you
         in 1998 served that purpose.

R. 57.

         Given these findings, the court did not procedurally err in imposing Bad

Heart Bull’s sentence.

         B. Substantive Reasonableness

         Bad Heart Bull also argues that his sentence, which is ten months longer

than the recommended guidelines range, is substantively unreasonable.

         Substantive reasonableness addresses “whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth

in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th

                                            -7-
Cir. 2008) (internal quotations omitted). “Although sentences imposed within the

correctly calculated Guidelines range may be presumed reasonable on appeal,

sentences imposed outside the Guidelines range may not be presumed

unreasonable.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008).

When we review a decision “to deviate from the Guidelines, we ‘consider the

extent of the deviation’ but give ‘due deference to the district court's decision that

the § 3553(a) factors, on a whole, justify the extent of the variance.’” Id.

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

      The district court did not abuse its discretion in imposing an upward

departure of 10 months. The court carefully considered Bad Heart Bull’s criminal

history and inability to reenter society after a lengthy prison term. He continued

to abuse drugs and alcohol despite the conditions of his supervised release. The

court concluded the recommended sentencing guidelines under-represented the

seriousness of Bad Heart Bull’s violations and the threat he posed to the

community. The court provided for the treatment that Bad Heart Bull requested

and needs—but also looked at the danger he presents out of prison.

      In sum, the district court did not abuse its discretion by sentencing Bad

Heart Bull to two years in prison for violating the terms of his supervised release.

      C. Term of Supervised Release

      At oral argument and in a letter submitted pursuant to Federal Rule of

Appellate Procedure 28(j), Bad Heart Bull claimed the district court imposed a

                                          -8-
subsequent term of supervised release that exceeded the statutory maximum under

18 U.S.C. § 3583(h). Under that provision, the amount of supervised release a

district court can impose as part of any revocation sentence is limited to “the term

of supervised release authorized by statute for the offense that resulted in the

original term of supervised release, less any term of imprisonment that was

imposed upon revocation of supervised release.” United States v. Hernandez, 655

F.3d 1193, 1198 (10th Cir. 2011) (quoting 18 U.S.C. § 3583(h)).

       The total amount of prison time for revocation of supervised release plus

the new supervised release term ordered by the court cannot exceed the maximum

amount of supervised release time that the district court could have ordered for

the original offense. The classification of a felony for the purposes of calculating

supervised release depends on the maximum prison sentence that may be imposed,

unless otherwise specified. 18 U.S.C. § 3583(b). A five-year term of supervised

release is only authorized for Class A and Class B felonies. Id. Because Bad

Heart Bull committed a Class A felony, the authorized term of supervised release

is five years.

       When imposing a subsequent term of supervised release under § 3583(h)

after revocation, the court is limited only by the authorized term of supervised

release, less any previous revocation sentences. United States v. Pla, 345 F.3d

1312, 1315 (11th Cir. 2003). It does not matter that Bad Heart Bull’s original

term of supervised release was only three years. What matters is the maximum

                                         -9-
term of supervised release authorized under the statute. United States v. Palmer,

380 F.3d 395, 397 (8th Cir. 2004). As the district judge explained to Bad Heart

Bull at his revocation hearing,

      The length of the term of supervised release shall not exceed the term
      of supervised release authorized by statute for the original offense
      and then less any term of imprisonment imposed upon revocation of
      supervised release . . . In this case, the statutory maximum would be
      five years less any term of imprisonment imposed upon revocation.
      That would also be the guideline range.

R. 21–22.

      The district judge sentenced Bad Heart Bull to two years in prison, plus

three years of supervised release, adding up to the authorized total of five years.

Thus, the sentence does not violate § 3583.



                                  III. Conclusion

      Bad Heart Bull’s sentence for the violation of the terms of his supervised

release is procedurally and substantively reasonable. The sentence is affirmed.

                                                     Entered for the Court,

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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