                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 14, 2016
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 15-1325
                                              (D.C. No. 1:12-CR-00103-WYD-1)
 JAIMIN YOUNG MUSE,                                       (D. Colo.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.


      After examining the briefs and the 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). This case

is therefore ordered submitted without oral argument.

      Defendant Jaimin Muse appeals the ten-month sentence imposed by the

district court after revocation of his supervised release. Specifically, Defendant

contends the district court imposed a sentence at the top of the advisory



      *
        This order and judgment is not binding precedent, except under the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.
guidelines range based on impermissible considerations relating to Defendant’s

race and the possible rehabilitative effect of incarceration. Because Defendant

did not raise these arguments below, we review only for plain error. See United

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

      In 2012, Defendant pled guilty to possession of a firearm as a prohibited

person in violation of 18 U.S.C. § 922(g)(1). After serving an eighteen-month

term of incarceration, he began serving a three-year term of supervised release.

Over the next several months, Defendant committed numerous violations of the

terms of his release, despite the probation office’s exhaustive efforts to help him

address his drug addiction problems and numerous warnings regarding the

possible results of violating the terms of his release. In May 2015, a probation

officer finally filed a petition for issuance of a warrant for violation of supervised

release. Defendant subsequently admitted to twelve separate violations of the

terms of his release.

      At the sentencing hearing, the district court first stated that, in light of

Defendant’s numerous violations and consistent disregard of the probation

office’s admonitions, he did not understand why the probation department was

recommending a bottom-of-the-guidelines sentence of seven months instead of a

top-of-the-guidelines sentence of ten months. The district court judge questioned

the probation officer, the prosecutor, and the defense attorney, then conducted an

extensive colloquy with Defendant. The judge expressed concerns about

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Defendant’s attitude, stating he believed Defendant’s words and actions

demonstrated deceitfulness and hypocrisy instead of any kind of commitment to

stopping his unlawful behaviors. In response to Defendant’s statement that he

kept violating his probation because dealing with a drug addiction is hard, the

judge told Defendant that any achievement is hard, including the judge’s own

achievement of being the first African American judge in the history of Colorado,

and Defendant would need to work hard if he was going to be more than just

another statistic. The judge told Defendant that “men of color”—like both the

judge and Defendant—face more difficulties than similarly situated white men,

and he is disappointed when racial minorities make excuses for underachieving

instead of working harder to overcome their challenges. (Sentencing Tr. at 21.)

The judge then recommended Defendant take his ten-month period of

incarceration to figure out who he was and whether he intended to keep going

down the path of ruination. In doing so, the judge specifically noted for the

record that his challenge for Defendant to turn his life around had no real

relationship to the sentence he would impose. The judge also expressed

significant doubt as to whether Defendant would actually listen to his advice and

change his behavior. The judge then told Defendant, “[Y]ou need to have a 10-

month sentence because you don’t deserve a day less,” and he noted again that

the probation office had shown extreme—and perhaps

counterproductive—forbearance in the way it dealt with Defendant’s repeated

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violations. (Id. at 31.)

      On appeal, Defendant quotes certain passages from the sentencing

transcript and argues those comments show that the district court impermissibly

based his sentence on considerations of rehabilitation and race. For instance,

Defendant argues the judge’s statement that he was imposing a ten-month

sentence because Defendant “need[ed] to sit for a while” to think about his life

choices demonstrates the judge selected a longer sentence for purposes of

rehabilitating Defendant. (Id.) Similarly, Defendant argues the judge’s

statements about his and Defendant’s status as racial minorities demonstrates that

the judge would not have imposed a ten-month sentence were it not for

Defendant’s race.

      Having reviewed the entire sentencing transcript in context, however, we

are not persuaded the district court’s sentencing decision was based on

impermissible considerations of rehabilitation or race. While the judge’s advice

to Defendant referred to his hopes for rehabilitation and his concerns about the

lack of accountability shown by many young men of color, the record makes clear

that the sentencing decision itself was based on permissible considerations

relating to Defendant’s unrepentant attitude and his continued violations despite

the probation office’s numerous attempts to help him address his drug addiction

problems. Particularly under the applicable plain error standard of review, we are

not persuaded that the district court’s editorial comments reflect any reliance on

                                         -4-
impermissible considerations in the sentencing decision.

      We accordingly AFFIRM the district court’s decision.

                                             Entered for the Court



                                             Monroe G. McKay
                                             Circuit Judge




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