                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    October 5, 2009
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-3290
 TIMOTHY BERNARD RIGGANS,                  (D.C. No. 2:99-CR-20056-JWL-DJW-1)
                                                          (D. Kan.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Marietta Parker, Acting United States Attorney, and Leon Patton, Assistant
United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

Raymond P. Moore, Federal Public Defender, and Vicki Mandell-King, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges. **


      A jury convicted Defendant Timothy Riggans of federal bank larceny in

violation of 18 U.S.C. § 2113(a). The district court sentenced him to 120 months in

prison followed by three years’ supervised release. As part of the conditions 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         This order and judgment is not binding precedent except under the doctrines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.
      **
        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’s supervised release, the court ordered him to participate in a substance

abuse program, including regular drug testing, counseling, and treatment, and to

make payments toward any unpaid monetary assessments on his conviction. Within

three months of Defendant’s release from prison, a probation officer filed a petition

to revoke his supervised release, alleging Defendant had violated its terms by: (1)

possessing cocaine, as evidenced by a positive drug test; (2) failing to report to his

probation officer; (3) failing to participate in an approved substance abuse program;

and, (4) failing to make payments toward his unsatisfied fine since his release from

custody.

      Defendant has a criminal history category of VI because of his prior

convictions and career offender status. His possession of a controlled substance

constitutes a Grade B violation of supervised release. 1 As Defendant’s violation

report indicated, the Chapter 7 Policy Statements of the Sentencing Guidelines

suggest a sentencing range of 21–27 months’ imprisonment.             See   U.S.S.G.

§ 7B1.4(a). Because bank larceny is a Class C felony, however, 18 U.S.C.

§ 3583(e)(3) sets his maximum term of imprisonment at 24 months: “[A] defendant

whose term is revoked under this paragraph may not be required to serve on any such


      1
         The Sentencing Guidelines define a Grade B violation of supervised release
as conduct constituting a federal, state, or local offense punishable by a term of
imprisonment exceeding one year. U.S.S.G. § 7B1.1(a)(2). Kansas defines
possession of cocaine as a drug severity level 4 felony and imposes a sentence
greater than one year imprisonment for such felonies. Kan. Stat. Ann. §§ 65-4160,
21-4708.

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revocation more than . . . 2 years in prison if such offense [that resulted in a term of

supervised release] is a class C or D felony. . . .”         18 U.S.C. § 3583(e)(3).

Defendant’s suggested sentencing range under the advisory policy statements,

therefore, was 21–24 months.

      At his revocation hearing, Defendant admitted all of the petition’s allegations.

Section 3583(g)(3) requires a court that finds a defendant has “refuse[d] to comply

with drug testing imposed as a condition of supervised release... shall revoke the

term of supervised release and require the defendant to serve a term of imprisonment

not to exceed the maximum term of imprisonment authorized under subsection

(e)(3).” 2 18 U.S.C. § 3583(g)(3). The district court, therefore, concluded it must

impose a term of imprisonment upon revocation of Defendant’s supervised release

because he failed to comply with the drug testing imposed as a condition of his

supervised release. Ultimately, the district court imposed the statutory maximum

prison sentence of 24 months.       Defendant on appeal disputes the substantive

reasonableness of that sentence. Exercising jurisdiction under 18 U.S.C. § 3742(a)


      2
         Section 3583(d) provides an exception to § 3583(g)’s mandatory revocation
provision by granting district courts discretion to reinstate a defendant to supervised
release (after consideration of certain factors listed in (d)). But, we have held that
§ 3583(d)’s exception to mandatory revocation does not apply to (g)(3) violations of
supervised release. See United States v. Hammonds, 370 F.3d 1032, 1038 n.5 (10th
Cir. 2004) (concluding the “exception provided in subsection (d) to mandatory
revocation appears now to apply to revocations under either (g)(1) or (g)(4)” but not
to (g)(2) or (g)(3)). The district court found Defendant had violated the terms of his
supervised release in contravention of (g)(3) to which § 3583(d)’s exception does not
apply.

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and 28 U.S.C. § 1291, we affirm.

                                          I.

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

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

Guidelines 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, however, is not

required to consider individually each § 3553(a) factor nor “recite any magic words”

before issuing a sentence.     Id. at 1189. 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), and its progeny, we

review all sentences for reasonableness under a deferential abuse of discretion

standard. 3 See Rita v. United States, 551 U.S. 338, 351 (2007); see also United


      3
         The United States Sentencing Commission never created “guidelines” for
revocation of supervised release; instead, the Commission crafted policy statements
to provide courts greater flexibility in imposing revocation sentences. U.S.S.G. ch.
7, pt. A, intro. cmts 1, 3(a)(2008). Prior to Booker, we reasoned “[b]ecause there is
no applicable sentencing guideline for the sentence to be imposed after a violation
of supervised release, our standard of review is ‘plainly unreasonable.’” Kelley, 359
F.3d at 1304; see also 18 U.S.C. § 3742(a)(4) (stating the applicable standard of
review for a sentence for which there is no sentencing guideline is “plainly
unreasonable”). We often said this means the sentence imposed must be “reasoned
and reasonable.” Id. We have now recognized that this is the same level of review
as the reasonableness standard of review called for by Booker and its progeny. In
United States v. Contreras-Martinez, 409 F.3d 1236, 1241, n.2 (10th Cir. 2005), we
stated that “reasoned and reasonable” is the “precise analysis now required for the
                                                                        (continued...)

                                          4
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.”). Reasonableness has two

parts: procedural reasonableness and substantive reasonableness. United States v.

Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008). “A sentence is substantively

unreasonable if its length is unreasonable in light of the sentencing factors set forth

in § 3553(a).” Id. Sentences imposed within the correctly formulated Sentencing

Guidelines range are presumptively reasonable on appeal, unless the defendant rebuts

“this presumption by demonstrating that the sentence is unreasonable in light of other

sentencing factors laid out in § 3553(a).” United States v. Kristl, 437 F.3d 1050,

1055 (10th Cir. 2006).

      As part of this analysis, “we review the district court’s findings of fact for

clear error and its legal interpretations of the Sentencing Guidelines de novo.”

Kelley, 359 F.3d at 1304. We find an abuse of discretion where “a decision is either

‘based on a clearly erroneous finding of fact or an erroneous conclusion of law or

manifests a clear error of judgment.’” U.S. v. McComb, 519 F.3d 1049, 1054 (10th



      3
       (...continued)
application of all sentencing guidelines by the Supreme Court’s recent decision in
United States v. Booker.” See United States v. Bolds, 511 F.3d 568, 575 (6th Cir.
2007) (“[T]here is no practical difference between Booker’s ‘unreasonableness’
review and the ‘plainly unreasonable’ standard. . . .”). We, therefore, apply Booker’s
reasonableness review to the sentence imposed upon revocation of Defendant’s
supervised release.

                                          5
Cir. 2007) (quoting Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir.1995)). A

district court also abuses its discretion 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).

                                          II.

      The district court in this case explained on the record that it considered the

factors and objectives in § 3553(a), including “the nature and circumstances of the

violations, the characteristics of the defendant, and the sentencing objectives set

forth by statute. . .[as well as] the advisory non-binding Chapter 7 policy statements.

. . .” (Revocation Hr’g Tr. 27, Oct. 9, 2008). After this analysis, though it was

impressed with Defendant’s eloquent and remorseful presentation at the revocation

hearing, the court concluded Defendant has an extensive, “dangerous [criminal]

history, and he has shown himself not amenable to supervision, as evidenced through

the positive drug test and failure to report when treatment was offered.” (Hr’g Tr.

27–28). Moreover, although Defendant expressed remorse at the revocation hearing

and demonstrated some progress since his release (by procuring a residence,

employment, and a bank account), the district court noted that he led the United

States Marshals on a high-speed car chase when they tried to arrest him on the

revocation warrant, driving in excess of one hundred miles per hour.

      A shorter sentence than the statutory maximum may, as Defendant contends,

have been sufficient but not greater than necessary to satisfy the goals of sentencing.

                                           6
We recognize, however, “in many cases there will be a range of possible outcomes

the facts and law at issue can fairly support; rather than pick and choose among them

ourselves, we will defer to the district court’s judgment so long as it falls within the

realm of these rationally available choices.” McComb, 519 F.3d at 1053. The

district court sentenced Defendant within the presumptively reasonable, rational

Guidelines range.    Given the facts presented and the district court’s reasoned

analysis, and absent any clear errors of fact or discernable errors of law, we cannot

say the within-Guidelines range sentence of 24 months constituted an abuse of

discretion.

      AFFIRMED.



                                        Entered for the Court,



                                        Bobby R. Baldock
                                        United States Circuit Judge




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