                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 12, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-3049
          v.                                             (D. Kansas)
 JOSEPH DALE FLOWERS,                        (D.C. No. 5:05-CR-40025-RDR-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


I.    INTRODUCTION

      After Defendant Joseph Dale Flowers violated the terms of his supervised

release, the United States District Court for the District of Kansas revoked his

release and sentenced him to incarceration for 12 months and one day and

supervised release for 12 months. Defendant appeals his sentence, arguing that it

was substantively unreasonable. We disagree and affirm. Defendant has failed to


      *
       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
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
rebut the presumption of reasonableness that attaches to his within-guideline-

range sentence.

II.   BACKGROUND

      In October 2005 Defendant pleaded guilty in federal court to one count of

possessing with intent to distribute approximately 40 grams of a mixture

containing methamphetamine, see 21 U.S.C. § 841(a)(1), and one count of

possessing a firearm after being convicted of a felony, see 18 U.S.C. § 922(g).

On July 28, 2006, the district court imposed sentences of 100 months’

imprisonment and three years of supervised release on each count, to be served

concurrently. His sentence was later reduced to 60 months’ imprisonment.

      Defendant’s term of supervised release began on September 15, 2010. On

November 17 the probation office executed a petition to revoke it. The petition

alleged that Defendant had violated the terms of his supervised release by (1)

failing to report to the probation office within 72 hours after being released from

prison; (2) failing to make himself available for a visit by a probation officer; (3)

possessing and consuming methamphetamine; (4) failing to participate in an

approved program for substance abuse; and (5) failing to report to the probation

office as directed.

      The district court held a revocation hearing on December 9, 2010. At the

hearing Defendant stipulated to the alleged violations and asked that the court

modify the conditions of his release to require him to complete an inpatient drug-

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treatment program. The court continued the hearing for 60 days and ordered

Defendant to begin an inpatient treatment program immediately. It also imposed

a curfew and required Defendant to reside with his parents. The court told

Defendant that this was “[a]bsolutely [his] last chance,” R., Vol. 2 at 11, and that

it had “reached the end of [its] rope as to what [it] [could] do.” Id. at 13.

      Defendant began inpatient drug treatment on December 9, 2010, and

successfully completed the program on December 22. But within a month of

finishing the program he failed to submit to drug testing on four occasions and

once submitted a urine specimen that tested positive for methamphetamine. In

response, the probation office amended its petition and again asked the district

court to revoke Defendant’s release.

      The district court resumed the revocation hearing on February 3, 2011. At

the outset of the hearing, Defendant’s counsel acknowledged his prior stipulations

and said that Defendant was “very cognizant of the Court’s statements” at the

prior hearing. Nevertheless, she requested that the court continue Defendant on

supervised release, and stated that he would “abide by any additional conditions

that the Court might set.” Id. at 19. If, however, the court was not amenable to

this request, Defendant wished to receive a sentence of 12 months and one day (to

make him eligible for good-time credit), with no supervision following his

release. The court, voicing frustration with Defendant’s repeated relapses,

rejected the proposal. Although the court thought that Defendant needed help

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more than punishment, it had “trouble reaching any solution . . . except

incarceration.” Id. at 20–21.

       The Sentencing Commission’s policy statements suggest that a defendant

with a grade B violation and criminal-history category of IV should receive a

sentence within a range of 12 to 18 months’ incarceration. See USSG § 7B1.4.

Following this suggestion, the district court sentenced Defendant to incarceration

for 12 months and one day followed by one year of supervised release. Defendant

timely appealed.

III.   DISCUSSION

       Our review of the sentence imposed is deferential. “[W]e will not reverse a

revocation sentence imposed by the district court if it can be determined from the

record to have been . . . reasonable.” United States v. Contreras-Martinez, 409

F.3d 1236, 1241 (10th Cir. 2005) (brackets and internal quotation marks omitted).

A revocation-of-supervised-release sentence within the range suggested by the

Sentencing Commission’s policy statements, such as the sentence here, is entitled

to a presumption of reasonableness. See United States v. McBride, 633 F.3d

1229, 1233 (10th Cir. 2011).

       Defendant does not contest the district court’s calculation of the suggested

sentencing range. Instead, he contends that his sentence is substantively

unreasonable in light of the court’s stated goal of helping him overcome his

methamphetamine addiction and the goals of 18 U.S.C. § 3553(a). He asserts that

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the sentence imposed “communicated to [him] that successfully completing

inpatient treatment, and trying to get back on the right track meant nothing.”

Aplt. Br. at 6. He suggests that continuing his supervised release rather than

imposing additional incarceration would have been a reasonable sentence.

      We disagree. The sentence proposed by Defendant may have been

reasonable. But that does not mean that a harsher penalty was unreasonable. As

we have previously explained, there is often “a range of possible [sentences that]

the facts and law at issue can fairly support[.] . . . [W]e will defer to the district

court’s judgment so long as it falls within the realm of these rationally available

choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). “The

fact that [we] might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Gall v. United

States, 552 U.S. 38, 51 (2007). Defendant’s failure to heed the district court’s

warning that this was “[a]bsolutely [his] last chance” to avoid incarceration, R.,

Vol. 3 at 11, together with his history of repeated relapses, justifies the sentence

imposed. Defendant has not overcome the presumption that his within-guideline

sentence fell within the realm of rationally available choices.




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IV.   CONCLUSION

      We AFFIRM.

                   ENTERED FOR THE COURT


                   Harris L Hartz
                   Circuit Judge




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