                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 September 10, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 09-6270
    v.                                           (D.C. No. 5:08-CR-00049-D-2)
                                                         (W.D. Okla.)
    JERRY B. OWENS,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.



         In this direct criminal appeal, Jerry B. Owens is challenging the revocation

of his supervised release and the twelve-month and one-day prison sentence

imposed by the district court as punishment for the supervised release violation.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

affirm.



*
       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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                          I.

      Mr. Owens’s counsel initially filed a brief and a related motion to withdraw

pursuant to Anders v. California, 386 U.S. 738, 744 (1967), claiming that this

appeal is frivolous. After independently reviewing the record and pertinent law,

however, we determined that Mr. Owens’s counsel had overlooked a

non-frivolous issue pertaining to the sentence that Mr. Owens received.

Specifically, because it appeared the government had failed to put forth evidence

at the revocation hearing showing that Mr. Owens committed a “felony” driving

under the influence (DUI) offense under Oklahoma law on October 4, 2009 (i.e.,

he drove a motor vehicle while under the influence of alcohol and he had a prior

DUI conviction, and was therefore subject to a minimum sentence of one year and

a maximum sentence of five years), see Okla. Stat. tit. 47, § 11-902(C)(2), it

appeared there was insufficient evidence to support the district court’s finding

that Mr. Owens committed a Grade B supervised release violation under the

applicable policy statement in Chapter 7 of the United States Sentencing

Guidelines (i.e., conduct constituting a state-law offense that is punishable by a

term of imprisonment exceeding one year), see U.S. Sentencing Guidelines

Manual § 7B1.1(a)(2) (policy statement) (Nov. 1, 2009). Instead, because the

evidence showed only that Mr. Owens committed a “misdemeanor” DUI offense

under Oklahoma law (i.e., a first-offense DUI with a maximum sentence of one

year), see Okla. Stat. tit. 47, § 11-902(C)(1), it appeared the district court should

                                         -2-
have found that he committed a lesser Grade C violation under the applicable

policy statement (i.e., conduct constituting a state-law offense that is punishable

by a term of imprisonment of one year or less), see § 7B1.1(a)(3).

      Given the apparent lack of evidence to support the district court’s finding

of a Grade B violation and the significantly different sentencing ranges under the

applicable policy statement for Grade B and Grade C violations for an individual

such as Mr. Owens who has a Criminal History Category of VI, see § 7B1.4(a),

we concluded that it was arguable (and therefore not frivolous) to assert that there

was a reasonable probability that Mr. Owens would have received a shorter

sentence if the district court had found that he committed a Grade C violation

instead of a Grade B violation. We therefore denied Mr. Owens’s counsel’s

motion to withdraw and ordered the parties to file supplemental briefs addressing

the following issues:

             1. Whether the district court made clearly erroneous factual
      findings that were not supported by sufficient evidence that:
      (a) [Mr. Owens] was convicted of a prior DUI offense; and
      (b) [Mr. Owens] thereby committed a “felony” DUI offense in
      violation of Okla. Stat. tit. 47, § 11-902(C)(2), on October 4, 2009,
      while on supervised release?

             2. Assuming the government put forth insufficient evidence to
      show that [Mr. Owens] committed a “felony” DUI offense on
      October 4, 2009, but that it put forth sufficient evidence to establish
      that he committed a “misdemeanor” DUI offense in violation of
      Okla. Stat. tit. 47, § 11-902(C)(1), whether the district court erred by
      failing to find that Mr. Owens committed a Grade C violation instead
      of a Grade B violation and by failing to apply the correct sentencing


                                         -3-
       range under the applicable sentencing guidelines, see §§ 7B1.1(a)
       and 7B1.4(a)?

               3. Whether any such error is subject to a harmless and/or a
       plain error standard of review and thereby provides no grounds for
       relief in this direct criminal appeal?

Order filed on July 26, 2010, at 3.

       Following up on an issue raised by Mr. Owens in the pro se brief that he

filed in response to his counsel’s Anders brief, we also directed the parties to

address the question of whether Mr. Owens’s due process rights were violated

because, at the time of the revocation hearing, “he ha[d] not been convicted of a

DUI offense under Oklahoma law pertaining to the incident that occurred on

October 4, 2009[.]” Id. at 4. Both sides have now submitted their supplemental

briefs, and this appeal is ripe for a decision.

                                           II.

       A. Sentencing Challenge.

      Having reviewed the parties’ supplemental briefs, we have determined, and

the government does not dispute, see Aplee. Supp. Br. at 3-5, that the district court

clearly erred in: (1) finding that Mr. Owens committed a felony DUI under

Oklahoma law on October 4, 2009; and (2) classifying Mr. Owens’s supervised

release violation as a Grade B violation, instead of a Grade C violation. As a

result, we have further determined that the district court committed a procedural

sentencing error because it considered the wrong advisory sentencing range under


                                          -4-
the policy statements in Chapter 7 of the Sentencing Guidelines when it sentenced

Mr. Owens. See United States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006)

(noting that Post-Booker, 1 we continue to review a district court’s application of

the Sentencing Guidelines de novo and its factual findings for clear error, and that

Booker’s requirement that district courts consult the Guidelines requires a district

court to correctly calculate the sentencing range prescribed by the Guidelines);

accord United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214-15 (10th Cir.

2008) (discussing standards for reviewing a sentence for procedural

reasonableness); see also United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir.

2004) (noting that while the policy statements in Chapter 7 of the Sentencing

Guidelines are advisory rather than binding, district courts must still consider them

before imposing a sentence for a violation of supervised release); 18 U.S.C.

§ 3553(a)(4)(B) (“[I]n determining the particular sentence to be imposed [for a

violation of supervised release], [the district court shall consider] the applicable

. . . policy statements issued by the Sentencing Commission[.]”).

      Specifically, the district court erroneously considered the advisory

sentencing range for a Grade B violation (21 to 24 months for an individual such

as Mr. Owens with a Criminal History Category of VI), 2 instead of the advisory

1
       See United States v. Booker, 543 U.S. 220 (2005).
2
      Under the applicable policy statement, the actual sentencing range for a
Grade B violation of supervised release is 21 to 27 months. See § 7B1.4(a). The
                                                                     (continued...)

                                          -5-
sentencing range for a Grade C violation (8 to 14 months for an individual with a

Criminal History Category of VI). See § 7B1.4(a); see also R., Vol. 3 at 35-36,

40-41. But Mr. Owens’s counsel failed to object to this procedural sentencing

error during the revocation hearing. Id. at 39, 40-41. As a result, Mr. Owens is

not entitled to any sentencing relief unless he can satisfy the demanding standards

of plain error review. 3 See United States v. Ferrel, 603 F.3d 758, 763 (10th Cir.

2010); accord United States v. Poe, 556 F.3d 1113, 1128 (10th Cir.), cert. denied,

130 S. Ct. 395 (2009) (“When a party fails to object contemporaneously to the

district court’s sentencing procedure, we review procedural reasonableness

challenges for plain error.”); United States v. Robertson, 568 F.3d 1203, 1210

(10th Cir.) cert. denied, 130 S. Ct. 814 (2009) (“We have consistently held that

plain error review obtains when counsel fails to render a contemporaneous

objection to a procedural sentencing error.”) (quotations omitted). Of course,


2
    (...continued)
    district court reduced this range to 21 to 24 months, however, because: (1) the
    underlying criminal statute under which Mr. Owens was convicted, see 18 U.S.C.
    § 371 (conspiracy to commit an offense against the United States), carries a
    statutory maximum of five-years’ imprisonment and is therefore classified as a
    Class D Felony, see 18 U.S.C. § 3559(a)(4); and (2) for a Class D Felony, the
    maximum term of imprisonment upon revocation of supervised release is two
    years, see 18 U.S.C. § 3583(e)(3); see also R., Vol. 3 at 40-41.
    3
           As set forth in government’s supplemental brief, we note that this case also
    presents a close question of invited error. See Aplee. Supp. Br. at 6-8. We do not
    need to decide whether Mr. Owens’s counsel invited the sentencing error at issue
    here, however, since we find no reversible error under the more-forgiving plain
    error standard of review.

                                           -6-
Mr. Owens’s quest for sentencing relief is also hindered by the fact that he

received a sentence (twelve months and one day) that is squarely within the correct

advisory sentencing range. See R., Vol. 3 at 43.

      Before proceeding to the question of whether the district court plainly erred

in sentencing Mr. Owens, we note that the district court explained its reasoning for

imposing a sentence that was well below the – incorrect – advisory sentencing

range of 21 to 24 months as follows:

             The Court, as previously stated, finds that the defendant has
      violated the conditions of supervised release as alleged in the Petition
      for Offenders Under Supervision filed on October 28th, 2009.

            The Court has considered the factors in 18, United States Code,
      Section 3553, and the applicable policy statements in Chapter VII of
      the Sentencing Guidelines.

            It is the order of the Court that the offender is hereby
      committed to the custody of the Federal Bureau of Prisons to be
      imprisoned for a term of twelve months and one day.

            Upon release from imprisonment the defendant shall be on
      supervised release for a term of 18 months.

             ....

             Mr. Owens, my inclination was to simply imprison you for the
      maximum amount of time possible and not order any follow-on period
      of supervised release. I hope it’s not going to prove imprudent, but in
      light of what your wife said today, in light of what you’ve said, I have
      decided to punish you substantially less than that, to sentence you to
      the twelve months and one day, which will allow you to earn
      good-time credit if your conduct while incarcerated merits it, and to
      follow on with a term of supervised release.




                                         -7-
             The reason I’m doing this is because, basically, I’m taking what
      you’re telling me as true, and I’m accepting that you are trying to turn
      that corner in your life, you’re trying to rehabilitate yourself, you’re
      going to school, you’re starting to do some of the things that I hope
      you do and you need to do to rehabilitate yourself.

             Time will tell whether this sentence is proven to be the correct
      one or whether you are not deserving of any consideration or leniency
      from the Court, because when you are release[d] you will be back
      under supervision for another 18 months. If there are any other
      violations you’ll come back before this Court, and it is very unlikely
      that the Court would again be lenient with you if you’ve proven me
      wrong today.

             ....

             . . . Now, I want you to know that I am not giving up on you,
      and this sentence today reflects that. I think that you can do this. I
      think that you can conform your conduct to the boundaries of the law,
      and that you can be the kind of husband, the kind of father that you
      ought to be and that I think you want to be and you are trying to be.
      It’s my sincere hope that you can do that.

             You’ve said to me today that you haven’t been out there
      committing any crimes. Well, that’s not true. On the fourth of
      October you were driving a vehicle under the influence, and by doing
      so you’re risking the lives of every other motorist on the roadway at
      that time. That is a crime, and it’s not a type of offense that is
      inconsequential. You need to understand that the test for you when
      you’re released isn’t that you’re not counterfeiting anymore, or you’re
      not selling drugs, or you’re not doing drugs; it’s that are you are
      committing no crime, period. Nothing. That’s the test for you.
      That’s what you have to wrap your mind around when you get
      released from confinement, because during your period of supervision
      anything less is going to be unacceptable.

R., Vol. 3 at 43-45.

      “The plain error test requires [Mr. Owens] to demonstrate the district court

(1) committed error, (2) that is plain, and (3) affects substantial rights.” United

                                          -8-
States v. Contreras-Martinez, 409 F.3d 1236, 1239 (10th Cir. 2005). “If all three

conditions are met, we may then exercise our discretion to notice the error, but

only if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Ferrel, 603 F.3d at 763 (quotation omitted). The government has

conceded, and we agree, that Mr. Owens has satisfied the first two prongs of plain

error review. See Aplt. Supp. Br. at 9. We conclude, however, that he cannot

satisfy the third and fourth prongs.

      “Satisfying the third prong of plain-error review–that the error affects

substantial rights–usually means that the error must have affected the outcome of

the district court proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727,

732 (10th Cir. 2005) (en banc) (quotation omitted). Thus, a “defendant appealing

[his] sentence who failed to timely object to the alleged [sentencing] error bears

the burden of proving prejudice under plain error analysis.” United States v.

Brown, 316 F.3d 1151, 1158 (10th Cir. 2003). “To meet this burden, the appellant

must show a reasonable probability that, but for the error claimed, the result of the

proceeding would have been different.” Gonzalez-Huerta, 403 F.3d at 733

(quotation omitted).

      Under the fourth prong of plain error review, “we will not notice a

non-constitutional error, such as the one in the case before us, unless it is both

particularly egregious and our failure to notice the error would result in a

miscarriage of justice.” Id. at 736 (quotations omitted). As a result, a “sentencing

                                            -9-
error meets the fourth prong of plain-error review only in those rare cases in which

core notions of justice are offended.” Id. at 739. This is not an insurmountable

barrier to relief, however, as we have recognized that a defendant can satisfy the

fourth prong of plain error review in a case involving a sentencing error by

demonstrating “a strong possibility of receiving a significantly lower sentence.”

United States v. Meacham, 567 F.3d 1184, 1190 (10th Cir. 2009) (quotation

omitted); see also Brown, 316 F.3d at 1161 (noting that, in reviewing a sentence

for plain error, “the key concern [is] whether correct application of the sentencing

laws would likely significantly reduce the length of the sentence.”) “Put another

way, a sentence based on an incorrect Guidelines range requires us to remand

unless the error did not affect the district court’s selection of a particular

sentence.” Meacham, 567 F.3d at 1191 (quotation omitted).

      In Meacham, we determined that Mr. Meacham had demonstrated plain error

and should be resentenced given the following circumstances:

            The correct total offense level should have been 28, not 32.
      Thus, the correct advisory Guidelines range was 87-108 months, not
      135-168 months. The district court sentenced Mr. Meacham to 120
      months, a term below the range the court thought was correct but
      above the proper range. . . .

             ....

             . . . The district court believed that the Guidelines range was
      135-168 months, but the court varied downward to 120 months. The
      correct range, as noted, is only 87-108 months. The sentence imposed
      is thus twelve months higher than the top of the proper Guidelines
      range. In such circumstances, we will exercise our discretion [under

                                           -10-
      plain error review] to correct the sentencing errors [by ordering a
      remand for resentencing].

Id. at 1190-91 (citation omitted).

      In contrast to Meacham, this case does not present a compelling need for

resentencing. To begin with, while this case is like Meacham in that the district

court varied downward in a significant way from the incorrect advisory sentencing

range, the cases are otherwise dissimilar in that the district court here imposed a

sentence that was squarely within the correct advisory sentencing range.

Consequently, we would be hard pressed to conclude that Mr. Owens suffered

prejudice or that a miscarriage of justice has occurred. Further, we do not believe

that the sentencing error here “affect[ed] the district court’s selection of [the]

particular sentence.” Id. at 1191 (quotation omitted). Instead, we agree with the

government that the district court specifically “chose a more lenient sentence of 12

months and 1 day . . . because that sentence would punish [Mr. Owens] for a

serious offense, enable him to receive good time credits, and allow him to prove

his commitment . . . toward recovery upon release.” Aplee. Supp. Br. at 12; see

also 18 U.S.C. § 3624(b)(1) (providing that a defendant imprisoned for “more than

1 year” can earn up to fifty-four days of good time credit for each year served).

Finally, as the government has further explained, “this is not a case where the

record indicates that the district court wanted to impose an even lower sentence




                                          -11-
but felt constrained by the [incorrect] range suggested by the Chapter 7 policy

statements.” Aplee. Supp. Br. at 12.

      In sum, given the district court’s detailed explanation for why it chose the

particular sentence it imposed, we conclude that Mr. Owens has failed to show

either: (a) “a reasonable probability that, but for the error claimed, the result of the

[sentencing] proceeding would have been different,” Gonzalez-Huerta, 403 F.3d

at 733 (quotation omitted); or (b) “a strong possibility of receiving a significantly

lower sentence,” Meacham, 567 F.3d at 1190 (quotation omitted). Accordingly,

his sentence must be affirmed. 4

      B. Due Process Claim.

      One of the terms of Mr. Owens’s supervised release was that he not

“commit another federal, state or local crime.” R., Vol. 1 at 11. As we understand

Mr. Owens’s due process claim, he is not asserting that it was unconstitutional for



4
       Two additional points are worth noting. First, the term of the additional
period of supervised release that the district court imposed for Mr. Owens’s
supervised release violation was not dependent on the “Grade” of the violation.
Instead, the district court was authorized to impose a term of supervised release
that would not exceed the term of supervised release authorized for the initial
underlying offense, less any term of imprisonment imposed for the supervised
release violation, see 18 U.S.C. § 3583(h) and § 7B1.3(g)(2). Second, while the
district court had the discretion to not impose a term of imprisonment as
punishment for a Grade C violation, see § 7B1.3(a)(2) and compare with
§ 7B1.3(a)(1), given the serious nature of Mr. Owens’s DUI offense and the
district court’s comments at the revocation hearing, we conclude that Mr. Owens
cannot show a reasonable probability that the district court would not have
imposed a term of imprisonment if it had correctly found a Grade C violation.

                                          -12-
the district court to revoke his supervised release because he committed a crime

under Oklahoma law. Rather, Mr. Owens is arguing that his supervised release

cannot be revoked based on the fact that he committed a state crime until he is

actually convicted of committing the crime by an Oklahoma state court. We

disagree.

      According to the federal supervised release statute, “[A district court may]

revoke a term of supervised release . . . if the court . . . finds by a preponderance

of the evidence that the defendant violated a condition of [his] supervised release.”

18 U.S.C. § 3583(e)(3). This court has held that revocation proceedings under

§ 3583(e)(3) do not violate a criminal defendant’s Sixth Amendment rights to a

jury trial or to be found guilty beyond a reasonable doubt. See United States v.

Cordova, 461 F.3d 1184, 1185, 1186-88 (10th Cir. 2006). A fortiori, because

Mr. Owens is not asserting that it was unconstitutional for the district court to

revoke his supervised release because he committed a crime under Oklahoma law,

and because he has not articulated a due process right that is separate and distinct

from these Sixth Amendment protections, we conclude that the district court was

constitutionally authorized to revoke Mr. Owens’s supervised release based on

findings supported by a preponderance of the evidence submitted at the revocation

hearing, regardless of the fact that Mr. Owens had not yet been convicted of




                                          -13-
committing a DUI offense by an Oklahoma jury in a state criminal case that

provided the full panoply of federal constitutional protections. 5

                                          III.

      The order entered by the district court on November 19, 2009, revoking

Mr. Owens’s term of supervised release is AFFIRMED.



                                                     Entered for the Court


                                                     Deanell Reece Tacha
                                                     Circuit Judge




5
      Having fully examined the district court record, we also conclude that
the government presented sufficient evidence at the revocation hearing to show,
by a preponderance of the evidence, that, on October 4, 2009, Mr. Owens
committed the offense of driving a motor vehicle while under the influence of
alcohol in violation of Okla. Stat. tit. 47, § 11-902(A)(2).

                                         -14-
