                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 18, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                     No. 09-6174
          v.                                         (W.D. Oklahoma)
                                                 (D.C. No. CR-07-321-D)
 TIMOTHY L. BEALS,

          Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, PORFILIO and BRORBY, Circuit Judges. **


      Timothy L. Beals appeals his thirty-six month sentence for the violation of

the terms of his supervised release. He argues that the district court based the

sentence on the availability of drug treatment while he was incarcerated and that,

because the treatment was not available, the court abused its discretion. We are

not persuaded and therefore affirm Mr. Beals’s sentence.

      *
         This order and judgment is not binding precedent except under the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.

      **
          After examining the briefs and appellate record, this panel has
determined unanimously to grant 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.
                                I. BACKGROUND

      In 2002, Mr. Beals pleaded guilty in the United States District Court for the

District of Kansas to carrying a firearm during and in relation to a drug

trafficking crime, a violation of 18 U.S.C. § 924(c). The district court sentenced

him to sixty months’ imprisonment, followed by a thirty-six month term of

supervised release, as well as a $100 special assessment.

      In December 2007, during his term of supervised release, the district court

placed Mr. Beals in the Oklahoma Halfway House because he had failed to

comply with certain conditions of supervised release requiring him to provide

information to the probation office. Following his placement in the Oklahoma

Halfway House, the Kansas court transferred the case to the United States District

Court for the Western District of Oklahoma.

      In March 2008, the probation office alleged that Mr. Beals had been

arrested for shoplifting, a violation of the terms of his supervised release. The

district court held a hearing and Mr. Beals stipulated to the alleged violation. The

court then revoked his supervised release and sentenced him to six months’

imprisonment, followed by a new term of twelve months’ supervised release.

      In December 2008, the probation office alleged that Mr. Beals had again

violated the terms of his supervised release, this time by submitting a urine

sample that tested positive for amphetamine and methamphetamine. Mr. Beals




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stipulated to the alleged violations, and the court ordered him to participate in an

in-patient substance abuse program at the Oklahoma Halfway House.

       In April 2009, the probation office alleged that Mr. Beals had admitted that

he had used methamphetamine, another violation of the terms of his supervised

release. Mr. Beals did not contest the allegation. However, rather than revoking

Mr. Beals’s supervised release, the district court announced that it would continue

the hearing on the violation for sixty days. It informed Mr. Beals that any further

violation of the supervised release conditions would result in a substantial prison

sentence.

      In July 2009, the probation office alleged that Mr. Beals had been

incarcerated in the Beckham County, Oklahoma, jail for failure to pay court costs

on a dismissed charge of uttering a forged instrument. The probation office

further alleged that Mr. Beals had failed to provide his probation officer with

information about his employment or his whereabouts following his release from

the Beckham County jail, additional violations of the terms of his supervised

release.

      In August 2009, the district court held a hearing on the two most recent

allegations (Mr. Beals’s use of methamphetamine and his failure to report to his

probation officer). The probation officer testified that Mr. Beals had failed to

provide her with the required information. Mr. Beals admitted the allegations.

He stated that “[a]fter the Beckham County deal, I just gave up. . . . [T]he


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supervised release and everything . . . was too much, and I just felt like I was

never going to make it, and just, basically, hit a point of depression and gave up.”

Rec. vol. III, at 37 (Tr. of May 1, 2009 Hr’g).

      After hearing statements from the prosecutor, Mr. Beals’s attorney, and Mr.

Beals, the district court imposed a sentence of thirty-six months’ imprisonment,

followed by twelve months’ supervised release, and a $100 special assessment.

The court directed that the first 180 days of supervised release should be served

in a residential halfway house.

       The court provided the following explanation of the sentence:

             I do want to make clear that the sentence being imposed today is
      being imposed in connection with the petition that we’ve had on the
      hearing today, but also in connection with the previous petition that the
      Court entered findings on but delayed the announcement of a decision
      as to punishment . . . .

      ....

             The reason for the sentence is that, despite great effort by the
      Court and the probation office, the defendant has repeatedly failed to
      comply with conditions of supervision even after a previous revocation
      and six-month period of confinement. The defendant has continued to
      have issues with drug abuse during this period of supervised release and
      has a history of violent behavior when he’s on drugs.

             The defendant is a supervision failure at this point and would
      benefit from a term of confinement of a duration sufficient for him to
      get significant rehabilitative treatment including the [Residential Drug
      Abuse Program].

      ....

            Mr. Beals, you may think that, based on the Court’s sentence
      today, that I have given up on you, but, indeed, I have not.

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             One of the sentencing factors under [18 U.S.C. §] 3553 that we
      take into account, and, indeed, apply in every case, is a factor that deals
      with rehabilitative treatment and programs and training and even
      medical care. There are also other factors that are significant with
      respect to you, including protection of the public and a reflection of the
      seriousness of your conduct.

             But I believe that the sentence today will give you time to get
      straightened out, and will give you time to participate in the
      [Residential Drug Awareness Program], and it is my hope that you do
      that. I believe that with that time to take advantage of all the programs
      that would be available to you in light of this sentence of confinement
      that you may be able to find the help that you need to turn things
      around when you get out.

             I also think that the halfway house time will give you an
      opportunity to reintegrate into whatever community that you elect to be
      a part of upon your release, and I think that’s an important part of your
      sentence today.

             I wish you luck, I will be pulling for you, and I hope you will
      pull for yourself.

Rec. vol. III, at 46-47, 49 (Tr. of May 1, 2009 Sentencing Hr’g).

                               II. DISCUSSION

      On appeal, Mr. Beals argues that his sentence “was unreasoned and

unreasonable and that the [18 U.S.C. ] § 3553(a) factors suggest a sentence below

or within the advisory guideline range.” Aplt’s Br. at 15. He maintains that the

district court recognized that what he needed most was rehabilitative treatment for

his drug addiction, and that the availability of such treatment was the principal

reason for the sentence of incarceration. However, Mr. Beals contends, the record




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does not support the conclusion that drug treatment will be available to him in

prison.

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

court must consider both the advisory policy statements in Chapter 7 of the

United States Sentencing Guidelines (USSG) and the factors provided in 18

U.S.C. § 3553(a). United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir.

2006). The district court is not required to consider individually each § 3553(a)

factor nor “recite any magic words” before issuing a sentence. Cordova, 461 F.3d

at 1189 (internal quotation marks omitted). Instead, the district court need only

consider § 3553(a) en masse and state its reasons for imposing a given sentence.

United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004).

      Following United States v. Booker, 543 U.S. 220 (2005), we review all

sentences for reasonableness under a deferential abuse of discretion standard.

See Rita v. United States, 551 U.S. 338, 361 (2007); United States v. Smart, 518

F.3d 800, 805 (10th Cir. 2008) (“[W]e now review all sentences—whether inside,

just outside, or significantly outside the Guidelines range—under a deferential

abuse-of-discretion standard.”) (internal quotation marks omitted). A sentencing

court abuses its discretion when its decision “is either based on a clearly

erroneous finding of fact or an erroneous conclusion of law or manifests a clear

error of judgment.” United States v. McComb, 519 F.3d 1049, 1054 (10th Cir.

2007) (internal quotation marks omitted). A court also abuses its discretion


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when it imposes a sentence that “is arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Sells, 541 F.3d 1227, 1237 (10th Cir.

2008) (internal quotations omitted), cert. denied, 129 S. Ct. 1391 (2009).

      Here, the advisory Sentencing Guidelines recommended a range of eight to

fourteen months’ imprisonment for each set of Mr. Beals’s violations of

supervised release, for a combined total of twenty-eight months. See USSG §§

7B1.1(a)(1), 7B1.3(a)(1), 7B1.4(a); Aple’s Br. at 10 n.1 (explaining that the

maximum advisory Guidelines sentence was twenty-eight months, fourteen

months for each set of violations). Mr. Beals acknowledges that the district

court “was authorized by Title 18 U.S.C. § 3583(e)(3) to require Mr. Beals to

serve up to 54 months’ imprisonment upon revocation of supervised release.”

Aplt’s Br. at 15; see 18 U.S.C. § 3583(e)(3) (stating that the district court may

“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, pursuant to the Federal Rules of

Criminal Procedure applicable to revocation of probation or supervised release

finds by a preponderance of the evidence that the defendant violated a condition

of supervised release”).

      Even though the district court sentenced Mr. Beals to a period of

incarceration above the recommended Guidelines range, we discern no abuse of


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discretion in its decision. The court thoroughly considered Mr. Beals’s record of

supervised release violations and his history and characteristics.

      As to the alleged lack of drug treatment in prison, we are not persuaded by

Mr. Beals’s contentions. His argument is that, in light of the fact that a state

charge is now pending against him, he would not be eligible for the final

component of the prison drug abuse program: community-based treatment. See

Aplt’s Br. at 20 n.2. However, as the government reasons, the district court’s

sentence was not based upon eligibility for a specific program. Instead, in light

of Mr. Beals’s repeated violations of supervised release and his chronic drug

abuse, the district court reasonably concluded that his problems, including his

addiction, could be more effectively addressed in a structured prison setting. Cf.

United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004) (observing that

“[w]hile [the defendant] cannot be forced to participate in the drug rehabilitation

program offered in prison, that does not make it unreasonable for the district

court to determine that [the defendant] is more likely to successfully address his

alcoholism in a prison setting given his failure to address it outside of prison”).

Moreover, Mr. Beals’s argument that he is ineligible for a particular treatment

program does not establish that he cannot receive any treatment at all while

incarcerated.




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                     III. CONCLUSION

We therefore AFFIRM Mr. Beals’s sentence.



                                    Entered for the Court,



                                    Robert H. Henry
                                    United States Circuit Judge




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