                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                 December 1, 2010
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-1201
          v.                                             (D. Colorado)
 ROBERT B. SULLIVAN,                           (D.C. No. 03-CR-00210-MSK-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Following his conviction as a felon in possession of a firearm, defendant

and appellant Robert B. Sullivan was sentenced to three years of supervised

release. His supervised release was revoked following a number of violations of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        This order and judgment is not binding precedent except under the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.
the terms of his release, and he was sentenced to eighteen months’ imprisonment.

Arguing that the eighteen-month sentence is procedurally and substantively

unreasonable, Mr. Sullivan appeals that sentence. We affirm.



                                 BACKGROUND

      As indicated, Mr. Sullivan was convicted in 2003 of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced

to fifty-one months’ imprisonment. After completing that sentence, Mr. Sullivan

began his three years of supervised release on July 13, 2007. Among the

conditions applicable to him during his supervised release were the requirements

that he abstain from the use of alcohol or other intoxicants and that he participate

in a drug abuse testing and treatment program, as well as a mental health

treatment program.

      Between November 10, 2007, and May 28, 2008, Mr. Sullivan tested

positive twice for methamphetamine and once for marijuana usage. While he

admitted the two methamphetamine uses, he denied using marijuana. Following

the first two violations, his probation officer, Pete Stein, expanded Mr. Sullivan’s

drug treatment program, instead of seeking court intervention. After the third

violation, however, Officer Stein recommended modifying the terms of

Mr. Sullivan’s supervised release. As a result, the district court placed

Mr. Sullivan in a halfway house for five months. Officer Stein explained the

                                         -2-
purpose of the modification was to “provide the defendant with the necessary

structure while sanctioning him for his noncompliant conduct.” Pet. for

Modification of Conditions of Supervised Release at 2, R. Vol. 1 at 6.

      Mr. Sullivan was released from the halfway house on September 30, 2008.

On eight different occasions between October 2008 and January 2009, he refused

to submit to drug testing as directed by his probation officer. On January 27,

2009, a summons was issued requiring Mr. Sullivan to appear at a supervised

release violation hearing on February 26, 2009. Officer Stein reported that

Mr. Sullivan was “unresponsive to efforts made by the probation officer to

address this ongoing noncompliance.” Pet. for Issuance of Summons Due to

Violation of Supervised Release at 2, R. Vol. 1 at 8.

      As a result of these violations, the district court held a hearing on

February 26, 2009, at which Mr. Sullivan admitted to each of the charged

violations. The district court deferred sentencing, ordering him to appear for final

disposition on April 27, 2009. The court also assigned him a new probation

officer, Andrea Bell, and ordered Mr. Sullivan to obtain mental health counseling.

Mr. Sullivan obtained a mental health evaluation, following which no particular

mental health treatment was recommended.

      Before the April 27, 2009, hearing could take place, Mr. Sullivan tested

positive twice for amphetamines, although no new charges derived from these




                                         -3-
tests. 1 The district court finally held its hearing on Mr. Sullivan’s previously

admitted drug violations on May 1, 2009. The court added two more conditions

to Mr. Sullivan’s supervised release: (1) placement in a halfway house for four

months and (2) a directive that he “shall not ingest marijuana for medical or other

purposes pending specific authorization by the court.” Order Continuing

Supervision and Modifying Conditions of Supervised Release at 1, R. Vol. 1 at

10.

      After the hearing but before the halfway house placement, Officer Bell

learned that Mr. Sullivan had failed more drug tests, testing positive three times

for methamphetamine and twice for marijuana. He admitted using both drugs,

and was placed in the halfway house. No other consequence followed.

      Mr. Sullivan was released from the halfway house on September 14, 2009.

On December 14, 2009, Officer Bell filed a Petition for Issuance of Summons

Due to Violation of Supervised Release, charging Mr. Sullivan with three

violations, and the district court directed him to appear at a supervised release

violation hearing on February 12, 2010. Violations continued, and by the time of

the hearing, Mr. Sullivan had been charged with nine new violations. The first

      1
       Mr. Sullivan blamed the positive drug tests on his use of a Vicks inhaler.
The government contends that, according to a laboratory, older versions of Vicks
inhalers may have been capable of producing a false positive for amphetamine,
but a second round of testing could distinguish between over-the-counter
medications like Vicks and illegal methamphetamine. In this case, however, no
such second round of testing could be obtained because Mr. Sullivan had not
provided a large enough urine sample. Thus, no charges were filed.

                                         -4-
charge was failure to follow the probation officer’s instructions. 2 The next two

charges alleged Mr. Sullivan failed to comply with mandatory drug abuse

treatment. These charges were based on Mr. Sullivan’s failure to appear for two

scheduled counseling sessions in November and December of 2009. Mr. Sullivan

claimed that he overslept on one occasion and that there was a miscommunication

regarding the time for the appointment on the other occasion.

      The remaining six charges all alleged possession and use of prohibited

controlled substances. Specifically, on November 18, 2009, Mr. Sullivan

submitted a urine sample that tested positive for marijuana. He admitted using

some marijuana, but justified it as a substitute for a prescription pain medication

his doctor could no longer provide him. While Mr. Sullivan admitted he knew he

was supposed to get the court’s permission before using any marijuana, he

claimed he failed to do so out of a concern about disclosing his medical

information to the court’s electronic filing system.

      Two of the six charges stemmed from urine samples provided by Mr.

Sullivan in November and December 2009, both of which tested positive for

      2
       This violation was based upon the fact that, at least for certain drug tests,
Mr. Sullivan did not provide a sufficiently large sample of urine to allow for
complete testing for drugs. Officer Bell opined that she was concerned that
Mr. Sullivan was “attempting to thwart the confirmation process by giving an
insufficient sample.” Tr. of Hr’g on Pet. to Revoke Supervised Release, Vol. 1 at
13, R. Vol. 2 at 16. Officer Bell told Mr. Sullivan to provide at least a half bottle
of urine at each submission. He apparently failed to do so on certain occasions.
Thus, his October 28, 2009, urine sample tested positive for amphetamines, but it
could not be confirmed.

                                         -5-
amphetamine. A second round of testing confirmed that the substance was D-

methamphetamine, which eliminated the possibility that the result was a false

positive based on Mr. Sullivan’s claimed use of a Vicks inhaler or Adderall, a

medication for attention deficit hyperactivity disorder (“ADHD”) which Mr.

Sullivan claimed to have used. Additionally, the testing laboratory confirmed that

none of the medications Mr. Sullivan was taking could have produced the results

which occurred. Mr. Sullivan denied using an illegal drug, but that denial was

refuted by the evidence. 3

      Mr. Sullivan also tested positive for methamphetamine on three more

occasions—two in December 2009 and one in January 2010. One of the tests also

reflected marijuana use. The testing laboratory confirmed twice that all three

results were positive for D-methamphetamine.

      While Officer Bell had initially sought a summons to bring Mr. Sullivan to

court to account for his supervised release violations (the December 14, 2009

summons), on January 13, 2010, she sought a Petition for Issuance of Arrest

Warrant Due to Additional Violations of Supervised Release. An arrest warrant

was issued that day, following which Mr. Sullivan turned himself in.

      3
       Mr. Sullivan initially claimed to have taken Desoxyn, a prescription form
of methamphetamine. Upon further questioning at the supervised revocation
hearing, Mr. Sullivan admitted that he had not taken Desoxyn during the testing
periods, nor did he have a prescription for the medication. While he later
attempted to clarify that perhaps he had taken it in October, the laboratory
confirmed that Desoxyn usage in October would not have affected his late
November or December tests.

                                        -6-
      Following a series of continuances, the supervised release violation hearing

was eventually held on April 23 and 26, 2010. Mr. Sullivan retracted his previous

admissions and denied everything except missing one drug treatment

appointment. He more specifically claimed that Desoxyn, not illegal

methamphetamine, was responsible for his many failed drug tests, despite his

prior statements to the contrary. The government agreed with the probation

department’s recommendation that Mr. Sullivan receive an eighteen-month

sentence.

      After receiving evidence, the district court found him guilty of six of the

nine charged violations. Noting that the burden on the government to prove the

violations was a preponderance of the evidence, the court found that “the

evidence does not establish the failure to follow the instructions of the probation

officer under the preponderance of the evidence standard.” Tr. of Hr’g on Pet. to

Revoke Supervised Release, Vol. 2, at 34, R. Vol. 2 at 109. The court also

rejected the violations claiming a failure to comply with drug treatment, stating,

“[A]pplying the preponderance of the evidence standard, there is no doubt that he

missed, there is no doubt that he was called the day before; but there is nothing to

rebut his testimony that he overslept or there was a miscommunication.

Therefore, I find that those are not violations.” Id. at 35.

      All the remaining allegations involved the use of prohibited substances,

based on urine tests. In finding those violations established, the court stated:

                                          -7-
      Frankly, after having reviewed the entire history here, having
      listened to Mr. Sullivan’s statements about his drug use, his drug
      sources, the explanations for why the tests are positive, I find his
      testimony incredible. I find that with regard to all of the allegations
      with regard to drug use that by a preponderance of the evidence he
      has violated the terms and conditions of his supervision.

             These are Class C violations; and by statute, the violations
      would require me to revoke his supervised release unless I can find
      that some treatment program would address the concerns.

             Frankly, we’ve tried. This court has tried everything it can
      think of. It has switched probation officers. It’s tried residential
      halfway houses twice. It’s tried mental health counseling.

             And this is not about Mr. Sullivan’s good skills as a welder,
      his employability. This is about following the rules and about telling
      the truth. And he does neither.

             This is about what will keep him from using drugs. And it is
      clear only supervision, direct, hands-on supervision keeps him from
      using drugs. When he’s in the halfway house, he does pretty well.
      When he’s not, he doesn’t.

Id. at 36-37.

      While the advisory sentence range under United States Sentencing

Commission, Guidelines Manual (“USSG”), was six to twelve months, followed

by another term of supervised release of no more than three years, the district

court selected an eighteen-month sentence, with no additional supervised release.

The court’s explanation for this sentence, which was higher than the top level of

the advisory sentencing range, was as follows:

      [T]his sentence, like the sentence that is imposed at the time of
      conviction, has to satisfy the requirements of 18 U.S.C. Section
      3553. That section requires me to impose a sentence that is

                                         -8-
      sufficient but not greater than necessary to accomplish these
      objectives: to reflect the seriousness of the offense, to promote . . .
      respect for law and provide just punishment, to adequately deter
      criminal conduct, to protect the public from further crimes by the
      defendant, and to provide the defendant with needed educational or
      vocational training, medical care, or other correctional treatment in
      the most effective manner.

             The nature and the circumstances of this repeated drug use, the
      inability of Probation and the Court to assist Mr. Sullivan in kicking
      his habit and getting on the straight road is unfortunate. But, we’ve
      reached the end of that road.

            In order to promote respect for the law, in order to protect the
      public from further crimes by the defendant–and that includes simply
      buying illicit drugs–in order to prevent him from taking drugs that
      are not medically prescribed, the Court comes to the reluctant
      conclusion that the only solution is to re-incarcerate him. And I
      agree with the recommendation of an 18-month period of re-
      incarceration after revocation of supervised release and reluctantly
      conclude that no further supervised release would benefit Mr.
      Sullivan.

Id. at 38. Neither side registered any objection at the time to the sentence.

      Mr. Sullivan appeals that sentence, arguing that it is procedurally and

substantively unreasonable.



                                   DISCUSSION

      “Under 18 U.S.C. § 3583(e)(3), when a person violates a condition of his or

her supervised release, the district court may revoke the term of supervised

release and impose prison time.” United States v. Kelley, 359 F.3d 1302, 1304

(10 th Cir. 2004). “In imposing a sentence following revocation of supervised


                                         -9-
release, a district court is required to consider both [the United States Sentencing

Guidelines] 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

(10 th Cir. 2006) (citation omitted). “[W]e will not reverse a [revocation sentence

imposed by the district court] if it can be determined from the record to have been

reasoned and reasonable.” United States v. Tsosie, 376 F.3d 1210, 1218 (10 th Cir.

2004) (quotation omitted).

      Thus, we review a sentence imposed for violating the terms of a

defendant’s supervised release under the same reasonableness standard we now

apply to all criminal sentences. We have called it the “familiar abuse-of-

discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

“[W]e now review all sentences . . . whether inside, just outside, or significantly

outside the Guidelines range[]under a deferential abuse-of-discretion standard.”

United States v. Smart, 518 F.3d 800, 805 (10 th Cir. 2008) (quotation omitted).

      Reasonableness review has a procedural and a substantive component. A

court may commit procedural error in imposing a sentence by “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.” Id.

at 51. In performing substantive reasonableness review, we consider “whether the

length of the sentence is reasonable given all the circumstances of the case in

                                         -10-
light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Alapizco-

Valenzuela, 546 F.3d 1208, 1215 (10 th Cir. 2008) (quotation omitted).



      I. Procedural Reasonableness:

      Mr. Sullivan claims the district court committed procedural error in

sentencing him “by failing to explain its reasons for imposing a substantially-

above-Guidelines sentence[.]” Appellant’s Br. at 3. When a party fails to object

contemporaneously to the district court’s sentencing procedure, as Mr. Sullivan

failed to do here, we “review procedural reasonableness challenges for plain

error.” United States v. Poe, 556 F.3d 1113, 1128 (10 th Cir.), cert. denied, 130 S.

Ct. 395 (2009). Under the plain error doctrine, we will reverse the district court’s

judgment only if the party shows (1) an error; (2) that is plain; (3) that affects

substantial rights; and (4) that “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Morris, 562 F.3d 1131, 1133

(10 th Cir. 2009) (internal quotation marks omitted). “The plain error standard

presents a heavy burden for an appellant, one which is not often satisfied.”

United States v. Romero, 491 F.3d 1173, 1178 (10 th Cir. 2007).

      A sentencing court must, of course, state the reasons for its imposition of a

particular sentence. We have held, however, that a “district court need not

‘march through § 3553(a)’s sentencing factors,’ nor do we ‘demand that the

district court recite any magic words to show that it fulfilled its responsibility to

                                          -11-
be mindful of the factors that Congress has instructed it to consider.’” United

States v. Verdun-Garcia, 516 F.3d 884, 898 (10 th Cir. 2008) (quoting United

States v. Rines, 419 F.3d 1104, 1107 (10 th Cir. 2005)). When the district court

imposes a sentence outside the advisory guidelines range, based upon

“nonfrivolous reasons for imposing a different sentence, . . . the judge will

normally go further and explain why he has [imposed an outside-the-guidelines

sentence].” Rita v. United States, 551 U.S. 338, 357 (2007); see also United

States v. Pinson, 542 F.3d 822, 834 (10 th Cir. 2008).

      We agree with the government that the district court clearly explained the

reasons for the above-guidelines-range sentence. It noted that, despite repeated

and varying efforts to keep Mr. Sullivan from using drugs while on supervised

release, Mr. Sullivan appeared to only successfully stay drug-free when he was

incarcerated and under close supervision. The court had discovered, however,

that the two shorter (four and five month) stints in halfway houses had been

unsuccessful, so a significantly longer period of incarceration was required.

Additionally, as the court said to Mr. Sullivan, this sentence was about “following

the rules” and “telling the truth,” neither of which Mr. Sullivan appeared able to

do reliably. Thus, a longer sentence was in order. We perceive the precise

reasons why the district court imposed the eighteen-month sentence it did.

      In addition, as the government points out, ordinarily another term of

supervised release would be added to Mr. Sullivan’s sentence. But, the district

                                        -12-
court relieved him of that obligation; thus, it is not correct to view the sentence

imposed as strictly and only an upward variance.

      Accordingly, the court did not err, let alone commit plain error, when it

selected the sentence it chose.



      II. Substantive Reasonableness:

      A district court abuses its discretion under the substantive reasonableness

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

manifestly unreasonable.” United States v. Lewis, 594 F.3d 1270, 1277 (10 th Cir.)

(internal quotation omitted), cert. denied, 130 S. Ct. 3441 (2010). Mr. Sullivan

concedes the sentence was neither arbitrary nor capricious nor whimsical. He

claims it is “manifestly unreasonable.” We disagree. Mr. Sullivan has displayed

a rather remarkable inability to follow and abide by the terms and conditions of

his supervised release. As the district court noted, his sentence is intended to

promote his respect for the law and to protect the public from a chronic drug

abuser. Given the sentencing factors under § 3553(a), we conclude that the

eighteen-month sentence is reasonable.




                                         -13-
                         CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




                               -14-
