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

                                TENTH CIRCUIT                                April 14, 2014
                       ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                             No. 13-3200
BARRY L. SMITH,                                (D.C. No. 2:00-CR-20150-KHV-DJW-1)
                                                              (D. Kan.)
       Defendant-Appellant.
                    ____________________________________
                            ORDER AND JUDGMENT*
                       ____________________________________

Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges.**
               ____________________________________

       After giving Defendant Barry L. Smith multiple chances to clean up his act, the

district court revoked his supervised release and sentenced him to three years

imprisonment—nine months above what the Guidelines recommended.                  On appeal,

Defendant argues his sentence is both procedurally and substantively unreasonable.

Defendant’s procedural arguments do not rise to the level of plain error and his sentence

was not plainly unreasonable. Thus, exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742, we affirm.

*
  This order and judgment is not binding precedent, except under the doctrines of law of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(a); 10th Cir. R. 34.1. The case therefore is ordered submitted without oral
argument.
                                            I.

      In 2001, Defendant pled guilty to one count of distributing five grams or more of a

substance containing methamphetamine, a class C felony, in violation of 21 U.S.C.

§ 841(a)(1), and one count of possession of a firearm in furtherance of a drug trafficking

crime, a class A felony, in violation of 18 U.S.C. § 924(c)(1)(A). The sentence imposed

included a term of supervised release. At the change of plea hearing, the plea petition

and the court incorrectly stated Defendant’s § 924(c) offense was a class D felony and

that if Defendant violated the terms of his supervised release, he could be subject to an

additional term of imprisonment of no more than two years. But because Defendant’s

924(c) violation was actually a class A felony, he could actually be sentenced to an

additional five years of imprisonment if his supervised release was revoked. See 18

U.S.C. § 3583(e). On November 23, 2011, Defendant was released from prison and

started his term of supervised release. On May 8, 2013, while still on supervised release,

Defendant’s probation officer filed a report alleging Defendant had violated the terms of

his supervised release by, among other things, possessing and using methamphetamine,

marijuana, and K-2,1 as well as failing multiple drug tests and lying to his probation

officer. The most serious of these violations was a grade B violation.




1
   K-2, or “Spice,” “refers to a wide variety of herbal mixtures that produce experiences
similar to marijuana . . . .”                DrugFacts: Spice (“Synthetic Marijuana”),
http://www.drugabuse.gov/publications/drugfacts/spice-synthetic-marijuana,        (visited
April 9, 2014). “[T]he Drug Enforcement Administration (DEA) has designated the five
active chemicals most frequently found in Spice as Schedule I controlled substances,
making it illegal to sell, buy, or possess them.” Id.
                                           -2-
         At a revocation hearing on May 15, 2013, Defendant stipulated to the facts in the

violation report. Based on Defendant’s criminal history category of VI and grade B

violation, the Guidelines’ non-binding policy statements recommended a custody range

of 21 to 27 months. But the district court pointed out at this hearing that it was inclined

to impose an above-Guideline sentence and could send Defendant back to prison for up to

five years. Instead of imposing sentence, however, the court continued the matter to give

Defendant a chance to obtain drug treatment. By the next hearing, on July 15, 2013,

Defendant had started drug treatment but had again tested positive for methamphetamine.

Defendant admitted “messing up,” but stated he was “trying very hard.” The court then

gave Defendant one last chance. The court continued the hearing until July 29 and stated,

“if you miss any drug tests, if you use any drugs, if you do anything else in violation of

the terms of your supervised release, my plan is that I will send you to prison for three

years and there will be no supervised release after that.” Despite this warning, Defendant

again violated the terms of his supervised release when he failed to attend a substance

abuse treatment meeting on July 16 and was asked to leave a treatment meeting on July

23 for being argumentative.

         On July 29, 2013, the district court revoked Defendant’s supervised release and

sentenced him to three years imprisonment. In doing so, the court told Defendant it felt

“at some level personally betrayed by your lack of honesty with the court and with the

probation office, and I think anyone looking at this file would come to the conclusion that

you are not a good candidate for supervision.” Defendant did not object to the sentence

below.

                                            -3-
                                              II.

       We review a district court’s sentence following revocation of supervised release

for procedural and substantive reasonableness. United States v. Ruby, 706 F.3d 1221,

1225 (10th Cir. 2013).       Defendant challenges the procedural reasonableness of his

sentence on two grounds. He did not object on either ground below, so we review these

claims for plain error. Id. “Under plain error review, the defendant must demonstrate (1)

there is error, (2) that is plain, (3) which affects substantial rights, and (4) which seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1226.

                                              A.

       Defendant first argues he was deprived of his due process right to notice and fair

warning because, at the time of the plea underlying his supervised release, the court and

defense counsel incorrectly informed him that he could face no more than two additional

years of imprisonment if his supervised release was revoked. He relies on the unreported

case of United States v. Hoff, 215 F. App’x 720, 724 (10th Cir. 2007), for the proposition

that incorrectly advising a defendant as to the terms of his supervised release meets the

first two elements of plain error. Even assuming Hoff persuaded us that Defendant meets

these first two elements of plain error, however, Hoff also reveals why Defendant’s claim

fails under plain error’s third prong. See id. That is, to show plain error, Defendant must

prove the error affected his substantial rights, and to do so, the Supreme Court has held “a

defendant is obliged to show a reasonable probability that, but for the error, he would not

have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).



                                              -4-
       Defendant nowhere attempts to make such a showing. Instead, he appears to

argue that, had he known he could face up to a five-year revocation sentence rather than a

two-year revocation sentence, a reasonable probability exists that he would not have

violated the terms of his supervised release. Whatever the legal merit of this argument,

the record here belies it. Defendant learned on May 15, 2013, that he could be sentenced

to up to five years imprisonment upon revocation and was given not one, but two

subsequent opportunities to comply with his supervised release conditions. Despite these

multiple opportunities to avoid the penalty he by then had notice and fair warning of,

Defendant continued to violate the terms of his supervised release. We therefore need

not rely on probabilities to determine whether Defendant’s substantial rights were

affected; Defendant’s own actions show they were not.

                                             B.

       Defendant next argues his sentence is procedurally unreasonable because the court

violated his right to due process when it based the sentence, “at least in part,” on the fact

that it felt “at some level personally betrayed” by Defendant’s lack of honesty with the

court and probation office. Again, because Defendant failed to object below, we review

only for plain error. Ruby, 706 F.3d at 1225. Defendant fails to show how any error the

court may have committed in mentioning its personal sense of a betrayal of trust was

“plain—that is[] . . . ‘clear under current law.’” United States v. Cordery, 656 F.3d 1103,

1106 (10th Cir. 2011) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). “An

error is clear where the Supreme Court or this court has addressed the issue or where the

district court’s interpretation was clearly erroneous.” Id. The Supreme Court has held

                                            -5-
“the sentencing process . . . must satisfy the requirements of the Due Process Clause.”

Gardner v. Florida, 430 U.S. 349, 358 (1977). Within this framework, “factors that are

constitutionally impermissible or totally irrelevant to the sentencing process[ include] the

race, religion, or political affiliation of the defendant . . . .” Zant v. Stephens, 462 U.S.

862, 885 (1983).

       Defendant provides no Supreme Court or Tenth Circuit authority for the

proposition that a district court may not consider a personal sense of betrayal of trust in

the context of a revocation proceeding. Instead, he argues that, under United States v.

Bakker, 925 F.2d 728 (4th Cir. 1991), an expression of personal betrayal goes beyond the

permissible scope of the breach of trust the court may consider at sentencing. Bakker

holds that a sentencing judge may not take his own religious convictions into account in

sentencing.   Id. at 740.     In that sense, Bakker simply extended Zant to prevent a

sentencing judge from considering either his own or the defendant’s religious convictions

at sentencing. This case has nothing to do with religious convictions; Bakker is therefore

inapposite. Conversely, Defendant recognizes that, in revoking a defendant’s supervised

release, the sentencing court not only may, but “should sanction primarily the defendant’s

breach of trust . . . .” U.S.S.G. ch. 7, pt. A, cmt. 3(b). As such, we do not see how any

error in taking the betrayal of trust personally rose to the level of plain error.

       Moreover, Defendant cannot show the district court’s personal sense of betrayal

affected his substantial rights because he cannot show “a reasonable probability that, but

for the error claimed, the result of the proceeding would have been different.” See

United States v. Dazey, 403 F.3d 1147 (10th Cir. 2005). The district court warned

                                              -6-
Defendant on July 15 that it would impose a three-year revocation sentence if he violated

his supervised release again. The court gave this warning two weeks before commenting

on its personal sense of betrayal and imposing sentence. We have no reason to believe

that, had the court not felt personally betrayed, it would have imposed a lighter sentence

than it had already promised. Accordingly, this claim fails.

                                           III.

      Finally, Defendant argues his sentence is substantively unreasonable because the

reasons the district court cited did not justify a sentence nine months above Defendant’s

advisory range under U.S.S.G. § 7B1.4. A defendant need not object below in order to

preserve the issue of substantive reasonableness. United States v. Torres-Duenas, 461

F.3d 1178, 1183 (10th Cir. 2006). Nevertheless, our review is deferential:

      [O]ur standard of review is “plainly unreasonable.” In reviewing the
      sentence and the court’s explanation of it, we will not reverse if it can be
      determined from the record to have been reasoned and reasonable. In
      conducting this analysis, we review the district court’s findings of fact for
      clear error and its legal interpretations of the Sentencing Guidelines de
      novo.

United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004) (internal marks and

citations omitted). “Defendant must do more than show that his preferred sentence was a

reasonable one. In virtually every case, many sentences would be reasonable. To obtain

relief, he must show that the actual sentence imposed was outside this range of

reasonableness.” United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011).

      Defendant does not argue the district court committed clear error as to any factual

findings, nor does he argue the court erred in interpreting the Guidelines. Rather, he


                                           -7-
argues his sentence is unreasonable because the court “overlooked, or did not attach

sufficient weight to,” the facts that Defendant (1) did not violate his supervised release

for over a year before relapsing and (2) had improved his attitude somewhat after he

started drug treatment. This is not enough to show that a sentence nine months above

that recommended by the Guidelines was outside the range of reasonableness. The

district court gave Defendant two extra chances to clean up his act and comply with the

terms of his supervised release. Both times the court warned him of the consequences he

faced if he failed to do so. Both times Defendant disregarded the court’s warnings and

continued to violate the terms of his supervised release. In light of Defendant’s flagrant

disregard for the court’s warnings and the terms of his supervised release, we fail to see

how his revocation sentence is plainly unreasonable.

      AFFIRMED.

                                         Entered for the Court,



                                         Bobby R. Baldock
                                         United States Circuit Judge




                                           -8-
