                                                                                        FILED
                                                                            United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                        TENTH CIRCUIT                                April 6, 2015

                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court
UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                                 No. 14-8067
v.                                                     (D.C. No. 2:11-CR-00015-NDF-1)
                                                                  (D. Wyo.)
WYATT PENTZ WOOLSEY,

                Defendant - Appellant.




                                 ORDER AND JUDGMENT*


Before MATHESON, O'BRIEN, and PHILLIPS, Circuit Judges.


       Wyatt Woolsey violated the conditions of his supervised release, his second. As a

result he was sentenced to imprisonment followed by another period of supervised

release, his third.1 A special condition of the renewed release required him to reside in a



       *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       1
           The first felony in this criminal odyssey was for possession of a firearm with an
                                                                              (Continued . . . )
halfway house for the first six months.2 He objected and now seeks our review of the

halfway house condition, claiming it is unnecessary, because he has the means to rent an

apartment, and therefore improper. 3 In affirming, we pause to applaud the district

judge’s refusal to tolerate persistent manipulation, deceit, and criminal behavior.

                                       I. BACKGROUND

       In March 2011, Woolsey pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced to 24 months

imprisonment followed by a 3-year term of supervised release. As part of the conditions

of his supervised release, he was prohibited from possessing or using alcohol, controlled

substances, drug paraphernalia, and dangerous weapons. He was also required to notify

the probation officer of any change in residence and to obtain the officer’s permission

prior to leaving the judicial district (Wyoming). His release was further conditioned on




obliterated serial number. He was sentenced by a federal court in Utah to 21 months
imprisonment. After serving the sentence of incarceration, he was admitted to supervised
release. According to the record, he was manipulative and frequently non-compliant with
the conditions of his release. In spite of frequent violations, he avoided revocation;
mostly because he “manage[d] to maintain steady employment.” (R. Vol. 2 at 8.)
       2
          The district judge and probation officer used the term “Residential Re-Entry
Center.” (R. Vol. 1 at 31; Vol. 2 at 22.) Since both parties use the term “halfway house”
in their briefs, we do the same. It appears Woolsey has completed the prison portion of
his sentence and is now residing in a halfway house. See http://www.bop.gov/inmateloc/
(last visited March 30, 2015).
       3
         Woolsey filed his notice of appeal the same day the district judge’s order
revoking supervised release and imposing sentence was entered on the docket sheet. No
separate judgment was entered nor was one necessary. The court’s order was complete
and, for this type of case, final.


                                            -2-
committing no federal, state or local offense.4

       Woolsey began serving supervised release on October 18, 2012. He was permitted

to live with his mother. However, it became “rapidly apparent” to the probation officer

he was not residing there: “Despite [the] officer’s tenacious attempts to locate him at

home at virtually all hours of the day and night, his whereabouts could not be

[con]firmed. The fact that his mother repeatedly told this officer the defendant was living

with her but frequently came from and went to locations she was not aware of made

efforts to supervise [Woolsey] ineffective . . . . For months on end, [Woolsey] could not

be located, leaving the probation officer to conclude he was avoiding supervision outside

of scheduled office visits.” (R. Vol. 2 at 22.) It was not until September 2013, when the

probation officer threatened to place him in a halfway house, that Woolsey finally came

clean—he was living with his new girlfriend and he did not want her to know he was a

convicted felon. The probation officer agreed not to take any formal action against him if

he told his girlfriend the truth. Woolsey did so and the officer viewed this as a “turning

point” for him as “he appeared to be more forthcoming with [the] officer, his attitude

became one of cooperation, and he seemed to be settling into compliance.” (R. Vol. 2 at

22.) Unfortunately (but not surprisingly), his epiphany was short lived.



       4
        Due to twice testing positive for consuming alcohol, Woolsey’s conditions of
supervised release were modified in May 2013 to require him to enroll in Interactive
Journaling, a cognitive behavioral treatment program. It was the “hope[]” of the
probation officer that such program would allow Woolsey to “develop better decision-
making skills” thereby helping him to avoid future violations. (R. Vol. 1 at 20.) [V.1 at
20-21]


                                            -3-
       On September 7, 2014, Woolsey’s girlfriend called the police after finding 1.6

grams of cocaine he had brought into her house. He came clean with the police: the

cocaine belonged to him and he had used some earlier in the day. Searches by the police

and probation officer uncovered a methamphetamine pipe, alcohol, an illegal switchblade

knife, a set of throwing stars, and a sword. Woolsey admitted to having used the pipe to

smoke methamphetamine earlier that day and that the remaining items were his. He had

also traveled to Colorado that day without first obtaining permission from his probation

officer.

       The probation officer submitted a petition to revoke supervised release, alleging

five violations. He admitted to all five. The advisory guideline range was 6 to 12 months

imprisonment. In her report to the court, the probation officer recommended 6 months

imprisonment to be followed by 30 months of supervised release, with the first 6 months

of supervised release to be served at a halfway house. She reasoned:

               A sentence at the low-end of the guideline range is recommended, as it will
       serve to adequately hold the defendant accountable for his noncompliant conduct,
       which when viewed collectively, indicates a person who only grudgingly and
       marginally chose to comply, insofar as outward appearances were concerned.
       Behind the scenes, the defendant has been secretive, dishonest, and defiant,
       choosing to do as he wished rather than what was required of him by this Court,
       let alone what was best for him. This is a difficult personality to treat and work
       with, and because of these things, the defendant has damaged his relationships
       with both his family and his girlfriend, leaving him without a residence. As such,
       the probation officer recommends that upon release from imprisonment, the
       defendant be placed in a [halfway house] for a period of six months in order to
       work and save toward establishing his own residence within the community.

(R. Vol. 2 at 23.)

       At the dispositional hearing, she reiterated her recommendation of 6 months


                                           -4-
imprisonment due to Woolsey’s “willful decisions to violate supervision” and the

concealment of “his whereabouts for a great number of months” with the help of his

family. (R. Vol. 3 at 21.) She also said she was “most concerned [with] what will occur

with him after he’s released from custody. At this point he doesn’t have anywhere to go.

He has -- at least for this time being does not have the support of his family. They are not

willing to have him live with them at this point. And his . . . girlfriend with whom he was

living is not going to permit him to return to the home.” (R. Vol. 3 at 22.) Because “he

will be starting over upon his release,” the officer again recommended Woolsey serve the

first 6 months of supervised release at a halfway house. (Id.) The government agreed

with the probation officer’s recommendation.

       For his part, Woolsey blamed his problems on his use of alcohol, which “got really

bad” when his mother’s cancer worsened. (R. Vol. 3 at 24.) Although the help he was

offered to deal with his substance abuse (see supra n.4) apparently failed, he did nothing

to obtain additional help while on supervised release. At the dispositional hearing he

argued for treatment rather than prison. He also claimed to have money from two

paychecks ($3,400) to rent an apartment and said his mother had agreed to help him find

an apartment and provide financial assistance if necessary.

       The probation officer viewed Woolsey’s treatment request as simply “a means of

avoiding punishment.” (R. Vol. 3 at 31.) The district judge agreed. She was

unsympathetic to Woolsey’s attempt to deflect blame for his behavior:




                                           -5-
              [I]t is a difficult case. On the one hand, . . . you have been working full
       time at a good job . . . . [S]o we’ve got . . . someone who is . . . high performing
       in terms of being able to work and have a good job.5

              And then on the other side we have deceptive conduct . . . . [F]or whatever
       reason, your mother was lying for you. She was lying for you, and so you’ve
       implicated her . . . as an enabler one way or another.

              [The probation officer] gave you a huge second chance, and everything
       seemed to be working out reasonably well until this situation. And so, honestly, I
       have a difficult time seeing that your whole life is ruled by alcohol. I see an
       impulsive person who has skills and talents, but also has a fascination with
       weapons, has a bad attitude toward women, and has concededly or admittedly a
       problem with alcohol.

             And so you had the best break you could have ever hoped for by not being
       brought before the Court and what do you do? You smoke methamphetamine.
       You were found . . . in possession of cocaine. You’ve got alcohol that you
       admitted belongs to you. You’ve got dangerous weapons which you shouldn’t
       have. And you know that. You’re not a stupid person.

               For me, this whole . . . schematic of performing person doesn’t yell out you
       need treatment. It yells out you need consequences. You need . . . the wake-up
       call that [the probation officer] gave you the first time and you completely . . .
       turned your back on that opportunity and fouled the nest that you had with [your
       girlfriend] and the one at your mother’s house, and now she’s looking at terminal
       cancer.
                       ....

               So, I agree with the probation officer’s recommendation that . . . time in
       custody is appropriate. There will be time on supervision. And if through that
       process either at the [halfway house] or later perhaps we can get a sense of what
       among this complex set of traits you have, really positive traits and then very
       troubling traits—what can we do to mitigate the troubling traits from causing you
       to self-destruct.

(R. Vol. 3 at 33-35.)

       Sentencing followed.

       5
           His decent work ethic saved him in the past. See supra n.1.



                                             -6-
                                        II. DISCUSSION

       According to Woolsey the halfway house condition is substantively unreasonable.

Reasonableness is, indeed, the watchword in our review of most sentencing decisions,

even those made after revocation of supervised release. See United States v. Friedman,

554 F.3d 1301, 1307 (10th Cir. 2009); United States v. Steele, 603 F.3d 803, 807 (10th

Cir. 2010) (the “reasoned and reasonable” standard of review applicable to review of

sentences following revocation of supervised release is equivalent to reasonableness

review under United States v. Booker, 543 U.S. 220 (2005)). Although our review of

special conditions has a reasonableness component focused on several of the § 3553(a)

factors, see infra 18 U.S.C. § 3583(d), the standard of review is abuse of discretion.6

United States v. Mike, 632 F.3d 686, 691 (10th Cir. 2011). “[W]e will not disturb the

district court’s ruling absent a showing it was based on a clearly erroneous finding of fact

or an erroneous conclusion of law or manifests a clear error of judgment.”7 United States



       6
         Our discussion of the two standards of review (reasonableness versus abuse of
discretion) is perhaps a distinction without a difference. See Gall v. United States, 552
U.S. 38, 46 (2007) (“Our explanation of ‘reasonableness’ review in the Booker opinion
made it pellucidly clear that the familiar abuse-of-discretion standard of review now
applies to appellate review of sentencing decisions.”); Rita v. United States, 551 U.S.
338, 351 (2007) (“[A]ppellate ‘reasonableness’ review merely asks whether the trial court
abused its discretion . . . .”); United States v. Lucero, 747 F.3d 1242, 1246 (10th Cir.
2014) (stating sentences are reviewed “under an abuse of discretion standard for
procedural and substantive reasonableness.”) (quotations omitted).
       7
         The government claims the more rigorous plain error standard applies because
Woolsey did not object when the halfway house condition was imposed. See Mike, 632
F.3d at 691 (applying plain error review where defendant did not object to special
condition of supervised release at time it was imposed). Woolsey disagrees. He says he
adequately objected to the halfway house condition by reporting he had the means to live
                                                                         (Continued . . . )

                                            -7-
v. Batton, 602 F.3d 1191, 1196 (10th Cir. 2010) (quotations omitted).

       Section 3583(d), in conjunction with 18 U.S.C. § 3563(b)(11), allows commitment

to a community corrections facility to be a condition of supervised release. And, again,

reasonableness is the watchword. District courts enjoy broad discretion in imposing

special conditions of supervised release, but “[that] discretion is not without limits.”

Mike, 632 F.3d at 692. Under § 3583(d), such conditions must (1) “be reasonably related

to at least one of [the] following: the nature and circumstances of the offense, the

defendant’s history and characteristics, the deterrence of criminal conduct, the protection

of the public from further crimes of the defendant, and the defendant’s educational,

vocational, medical, or other correctional needs”8; (2) “involve no greater deprivation of

liberty than is reasonably necessary to achieve the purpose of deterring criminal activity,

protecting the public, and promoting the defendant’s rehabilitation”; and (3) “be

consistent with any pertinent policy statements issued by the Sentencing Commission.”

Id.

       The halfway house condition imposed here more than satisfies all three

requirements. First, it is reasonably related to Woolsey’s history, characteristics, and

correctional needs and serves to deter future criminal conduct. Woolsey was often non-

compliant with the terms of his first conditional release order, see supra n.1, and he



in his own apartment. We need not resolve the debate. Woolsey cannot prevail even
under the abuse of discretion standard.
       8
       These factors derive from 18 U.S.C. § 3553(a)(1), (2)(B), (2)(C) and (2)(D). See
18 U.S.C. § 3583(d)(1).


                                            -8-
upped the ante in this case. He consistently lied to his probation officer for over a year as

to where he was living. His supervised release was revoked due to his possession of

prohibited items (including contraband) and leaving the judicial district without

permission. Residence at a halfway house will assist the probation officer in monitoring

Woolsey’s whereabouts, impede his possession of and contact with contraband, cause

him to focus on his substance abuse, and discourage future crimes or violations. It may

not be a comfortable experience for him, but for society it will increase the probability of

his being held accountable for aberrant behavior during the early days of his third

conditional release.

       Second, requiring Woolsey to reside at a halfway house for 6 months involves no

greater deprivation of liberty than is reasonably necessary. “Special conditions constitute

a greater than necessary deprivation of liberty when they infringe upon fundamental

liberty interests, such as familial association.” United States v. Begay, 631 F.3d 1168,

1175 (10th Cir. 2011). Short-term residence at a halfway house “does not rise to this

level.” Id. Distancing Woolsey from corrupting or enabling peers (including family

members) is good reason for the modest restraints a halfway house may temporarily

entail. While it will prevent Woolsey from coming and going as he pleases (one of the

obvious triggers leading to his current circumstances), nothing in the record suggests how

it will prevent him from working or having contact with his family, albeit monitored.

       Finally, the condition is consistent with the Sentencing Commission’s pertinent

policy statements. USSG §5D1.3(e)(1) states “[r]esidence in a . . . halfway house . . .

may be imposed as a [special] condition of supervised release.” And USSG §5F1.1

                                            -9-
provides: “Community confinement may be imposed as a condition of probation or

supervised release.” It defines “[c]ommunity confinement” to include “residence in a . . .

halfway house.” USSG §5F1.1, comment. (n.1).

       Although the halfway house condition satisfies all three requirements of 18 U.S.C.

§ 3583(d), Woolsey nevertheless claims the district judge erred in imposing it because it

was unnecessary. According to him, that condition was imposed based on the probation

officer’s assumption he would have no place to live following his release. But, he says,

at the dispositional hearing he explained to the judge that he had ability to rent an

apartment—with assistance from his mother, if necessary. In light of that he complains

of the judge’s failure made no specific findings justifying the halfway house condition.

       The reason the probation officer gave for recommending the halfway house

condition was her concern Woolsey would have nowhere to live upon the completion of

his term of imprisonment because he had alienated his family and girlfriend. But, the

judge obviously had additional reasons. Her failure to accentuate the obvious is no

reason to reverse her decision. Woolsey’s long history of resisting supervisory efforts

makes the need for a transition from incarceration self-evident. More important, her

explanation of the sentence imposed clearly implies that insuring Woolsey had a place to

live was not the only, or even the primary, reason for imposing the condition. Finally,

and, contrary to Woolsey’s assertion, his claim to have $3,400 and the financial

assistance and support of his mother did not alleviate the housing concern. While he may

have had some money, he did not have a job, making it questionable as to whether he

could secure an apartment without a stable income and, even if he could, whether he

                                            - 10 -
could sustain living there without gainful employment. Finally, it is painfully obvious

why the probation officer and judge did not to rely on the mother’s possible assistance.

As the judge aptly noted, her “assistance” in the past mainly consisted of lying for her

son for the purpose of enabling his deceptive behavior.9

       The sentence imposed, including the halfway house condition, amounted to

nothing more than a condign consequences for an established pattern of intransigent,

oppositional behavior. And it offered the best hope of rehabilitation.

              AFFIRMED.


                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




       9
        Woolsey complains the judge did not rely on these reasons (no job and mother’s
deception) in rejecting his claim to have the means to rent an apartment. But the
probation officer did state the halfway house condition would allow Woolsey “to work
and save toward establishing his own residence within the community.” (R. Vol. 2 at
23.) And the judge noted the mother’s deception in announcing sentence. In any event,
when, as here, “a district court imposes a within-Guidelines sentence, the court must
provide only a general statement of its reasons, and need not explicitly refer to either the
§ 3553(a) factors or respond to every argument for leniency that it rejects in arriving at a
reasonable sentence.” United States v. Lente, 647 F.3d 1021, 1034 (10th Cir. 2011)
(quotations omitted).


                                           - 11 -
