                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES COURT OF APPEALS                July 3, 2014
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                      No. 14-3013
 v.                                     (D.Ct. No. 2:05-CR-20027-JWL-DJW-1)
                                                       (D. Kan.)
 JAMES P. ASHLOCK, III,

          Defendant - Appellant.
                        ______________________________

                              ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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

submitted without oral argument.

      Defendant-Appellant James P. Ashlock III appeals his sentence following

revocation of his supervised release. In challenging only the substantive


      *
         This order and judgment is not binding precedent except under the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.
reasonableness of his sentence, he contends his sentence is presumptively

unreasonable. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291 and affirm Mr. Ashlock’s twenty-one-month term of imprisonment

and fifteen-month term of supervised release.

                      I. Factual and Procedural Background

      On November 30, 2005, a jury convicted Mr. Ashlock of possession of a

firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He

received a 120-month sentence and a three-year term of supervised release

conditioned, in part, on his cooperation with his probation officer, submission to

drug testing, prohibition on possessing or using illegal drugs, and participation in

approved programs for substance abuse and mental health. Prior to beginning his

supervised release on November 8, 2013, the probation officer was notified that

while still at a halfway house, Mr. Ashlock submitted positive urine samples for

marijuana on November 1 and 4, 2013. A few days later, on November 19, 2013,

while on supervised release, he tested positive for methamphetamine. On

November 21 and 25, 2013, Mr. Ashlock reported for drug testing but was unable

to provide the required urine samples, which are considered “stalled” urine

analyses. On December 9, 2013, Mr. Ashlock reported to his probation officer

and admitted he used methamphetamine on December 6, 2013, as well as a couple

of times around the period of the urine analysis stalls. He was referred for

weekly mental health counseling, and the conditions of his supervised release

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were modified to add a “search” condition for his self, home, and other property

on reasonable suspicion of contraband or evidence of violation of the conditions

of his supervised release.

      On December 13, 2013, he failed to report for dual diagnosis counseling at

a mental health center. On December 18, 2013, he again failed to provide a urine

sample for testing and was directed to report to the probation office at 9:00 a.m.

on December 20, 2013. He failed to timely report and, on the same day, also

missed another scheduled dual diagnosis counseling session at the mental health

center. When Mr. Ashlock did report to the probation office at 4:00 p.m. that

day, he admitted he used methamphetamine on December 19, 2013. He was

directed to return on December 23, 2013, for application of a sweat patch but

called that day, saying he was running late and did not know when he would make

it to the probation office. When he appeared later that day, he was arrested.

      The government filed a petition for revocation of Mr. Ashlock’s supervised

release based on his numerous violations. At a hearing held January 10, 2014,

Mr. Ashlock stipulated to those violations. While Mr. Ashlock sought a sentence

involving only an in-patient, dual diagnosis program at a mental health center, the

government opposed such a sentence, pointing out Mr. Ashlock: 1) previously

acted out with violence due to his drug use, including while incarcerated; 2)

continued to use illegal drugs or misused authorized medication while in prison;

3) failed to participate in a drug treatment program, either on supervised release

                                         -3-
or while in prison; 4) continued to use illegal drugs on supervised release; and 5)

failed to take responsibility for his firearm offense. It argued a punishment of

only in-patient treatment would risk his relapsing and using methamphetamine

again, thereby creating a potential consequence of violence. It then requested a

sentence of twenty-one months in prison, where Mr. Ashlock could get drug

treatment, as well as a term of supervised release.

      In revoking Mr. Ashlock’s supervised release and imposing a twenty-one-

month sentence with fifteen months supervised release, the district court stated it

believed such a sentence was appropriate and sufficient, but not greater than

necessary, to carry out Congress’s intent with respect to the 18 U.S.C. § 3553(a)

sentencing factors. It further stated:

      I’m usually amenable to suggestions that one who has not had in-
      patient treatment and whose problems are perhaps deeply [seated]
      should perhaps get that opportunity [for in-patient treatment] at some
      point if that might be of assistance. But I’m persuaded that Mr.
      Ashlock’s difficulties are more deep [seated] than would be
      addressed in a relatively brief in-patient treatment. I think part of his
      difficulties are ones that he needs to make sure he understands the
      price that he pays if he does not live up to what the expectations for
      him are, and he will be back on supervision again once he leaves
      incarceration, and he needs to be sure then that he will follow those.

      Second, I think ... during his incarceration, he will have the
      opportunity for drug treatment, and he needs to take advantage of it,
      and he needs to do the things necessary to make himself available for
      it. And finally, in the end, I’m simply persuaded that it is too great
      of a risk to public safety to permit Mr. Ashlock – given his criminal
      history and given his ... deep [seated] issues here, to permit him to
      remain at large, and to continue to be a threat to the public safety.


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      While the district court acknowledged Mr. Ashlock may not be eligible for

the intensive residential drug abuse program, it noted he could qualify for other

drug treatment programs while incarcerated which he failed to commit to or take

advantage of in the past. Finally, in revoking supervised release and imposing the

twenty-one-month sentence and term of supervised release, the district court

stated it considered the violation report, the case file, counsel remarks and Mr.

Ashlock’s statement, as well as the sentencing factors and advisory United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) policy statements.

                                    II. Discussion

      Mr. Ashlock appeals his twenty-one-month sentence and fifteen-month term

of supervised release following revocation of his supervised release. In

challenging the substantive reasonableness of his sentence, he contends his

sentence is presumptively unreasonable in light of his mental health issues, the

availability of in-patient drug treatment, and his amenability to rehabilitation, as

well the fact he was employed during his release and stayed in contact with his

probation officer. Rather than a lengthy sentence, he asserts he should have

received in-patient drug treatment but, instead, the district court failed to address

his root problem of drug abuse.

      Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583, when

a person violates the conditions of supervised release, the district court may

modify the conditions of release or revoke the term of supervised release and

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impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.

2004); 18 U.S.C. § 3583(e)(2), (3); Fed. R. Crim. P. 32.1(b); U.S.S.G. § 7B1.3(a).

In imposing a sentence following revocation of supervised release, the district

court is required to consider both the Guidelines Chapter Seven policy statements

as well as the factors provided in 18 U.S.C. § 3553(a). 1 See United States v.

Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). “The court may, after

considering the factors set forth in” § 3553(a)(1)-(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 ....” 18 U.S.C.

§ 3583(e)(3). In this case, it is undisputed the advisory Guidelines range for Mr.

Ashlock on revocation is twenty-one to twenty-seven months imprisonment. See

U.S.S.G. §§ 7B1.3(a)-(b), 7B1.4(a).

      Our appellate review for reasonableness is for abuse of discretion and is

deferential. See United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013);

United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). Generally, we

will not reverse a sentence following revocation of supervised release if the

record establishes the sentence is “reasoned and reasonable.” United States v.

      1
         The Chapter Seven policy statements include advisory Guidelines ranges
for sentences following revocation of supervised release. See generally U.S.S.G.
Ch. 7 and §§ 7B1.3, 7B1.4. With respect to the § 3553(a) sentencing factors, they
include, in part, not only the nature of the offense, but the history and
characteristics of the defendant, as well as the need for the sentence to provide
adequate deterrence and protect the public. See United States v. Kristl, 437 F.3d
1050, 1053 (10 th Cir. 2006); 18 U.S.C. § 3553(a).

                                         -6-
Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005). A “reasoned”

sentence is one that is “procedurally reasonable,” while a “reasonable” sentence is

one that is “substantively reasonable.” See McBride, 633 F.3d at 1232. Mr.

Ashlock contests only the substantive reasonableness of his sentence.

“[S]ubstantive 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. Huckins, 529 F.3d 1312, 1317 (10th

Cir. 2008) (internal quotation marks omitted). A district court abuses its

discretion when it renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable. See United States v. Regan, 627 F.3d 1348, 1352 (10th

Cir. 2010) (internal quotation marks omitted). In making these determinations,

we review the district court’s factual findings for clear error and its legal

conclusions de novo. See Ruby, 706 F.3d at 1225.

      In this case, the district court considered the sentencing factors and

advisory Guidelines and stated its reasons for imposing a twenty-one-month

sentence and a term of supervised release. Specifically, it stated its belief a

within-Guidelines sentence was necessary for Mr. Ashlock to understand the

seriousness of his violations; to deter him from future acts of violence or

violations of such release; to ensure he took advantage of the opportunity in

prison for drug treatment, which he failed to do in the past; and to make certain

he follows the conditions of his release in the future. In so doing, it clearly

                                          -7-
rejected Mr. Ashlock’s argument only in-patient drug treatment was necessary

and, instead, relied on government counsel’s argument that a sentence was

necessary based on his history of repeated noncompliance with respect to the

terms of his supervised release; failure to participate in drug counseling or drug

programs, either in prison or during supervised release; and the risk he would

relapse and use methamphetamine again, thereby creating a potential consequence

of violence, as previously exhibited, which would pose a risk to public safety.

      As a result, it is clear the district court took into account the 18 U.S.C.

§ 3553(a) sentencing factors, including Mr. Ashlock’s criminal history and

personal characteristics, as well as the issues of deterrence and the public’s

safety. The district court did not, as Mr. Ashlock contends, fail to address his

root problem of drug abuse. Instead, it noted his problems were more deep-seated

than just his drug abuse, and, in addressing his drug use, it explained he could

take advantage of drug treatment programs while in prison.

      We further note that in merely one and one-half months, from when his

supervised release began to the time of his arrest, Mr. Ashlock violated the

conditions of his supervised release multiple times, demonstrating his flagrant

disregard of the conditions imposed. These violations included his failure, on two

occasions, to attend a mental health and drug treatment program, and there is

nothing in the record to suggest he ever attended this program while on release or

that he desires, or is inclined to seek, help. As a result, there is no assurance Mr.

                                          -8-
Ashlock will adhere to a drug treatment program outside of prison, and he

certainly has not demonstrated, as he alleges on appeal, that he is amenable to

rehabilitation outside of further incarceration.

      Considering all of the circumstances presented, we cannot say Mr.

Ashlock’s sentence is unreasonable or otherwise arbitrary, capricious, whimsical,

or manifestly unreasonable. This is apparent, even in light of his mental health

issues, the availability of in-patient drug treatment, and the fact he was employed

while on release or, as he alleges on appeal, cooperated with his probation officer

(despite his failure to timely report or provide urine samples). As a result, we are

fully satisfied the sentence and supervised release imposed are reasonable.

                                   III. Conclusion

      Accordingly, we AFFIRM Mr. Ashlock’s twenty-one-month sentence and

fifteen-month term of supervised release.

                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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