                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS June 16, 2015
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 14-5044
                                              (D.C. No. 4:96-CR-00045-GKF-1)
 ARLAND DEON GAINES,                                     (N.D. Okla.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 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        This order and judgment is not binding precedent except under the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.    BACKGROUND

      In 1996, Defendant-Appellant Arland Deon Gaines was convicted of one

count of possession of a controlled substance with intent to distribute and two

counts of possession of a firearm after a former felony conviction. He was

sentenced to 240 months’ incarceration and a ten-year term of supervised release.

The sentencing court ordered Gaines to comply with multiple conditions of

supervised release, only four of which are relevant in this matter. Gaines was: (1)

prohibited from committing another federal, state, or local crime; (2) required to

“answer truthfully all inquiries by the probation officer and follow the

instructions of the probation officer”; (3) ordered to refrain from purchasing,

possessing, or using any controlled substance; and (4) required to notify his

probation officer within seventy-two hours of being arrested. Gaines was

released from incarceration in August 2013 and began serving his term of

supervised release.

      On February 20, 2014, Gaines’s probation officer petitioned the district

court to revoke Gaines’s supervised release. According to the petition, Gaines

violated the conditions of supervised release by committing a crime, not reporting

an arrest to the probation officer, testing positive for cocaine, and failing to

follow the instructions of the probation officer. Gaines stipulated to testing

positive for cocaine and failing to report his arrest for violating a protective

order. After a hearing, the district court found him in violation of the remaining

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two conditions of his supervised release. Relevant to this appeal, one of those

violations was Gaines’s failure to follow his probation officer’s instruction to not

have contact with Alesia Philpotts, Gaines’s girlfriend. The district court

sentenced Gaines to eleven months’ imprisonment and forty-nine months of

supervised release.

II.   DISCUSSION

      Gaines argues the district court committed plain error by considering his

failure to comply with the instructions of his probation officer as a basis for the

revocation of his supervised release. Because Gaines did not raise this issue

before the district court, we review for plain error. United States v. Edwards, 782

F.3d 554, 561 (10th Cir. 2015). “Plain error occurs when there is (1) error, (2)

that is plain, which (3) affects the defendant’s substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 562 (quotations omitted). Our jurisdiction arises under 28

U.S.C. § 1291.

      Gaines does not challenge the facts underlying the district court’s finding

that he failed to follow the instructions of his probation officer. Instead, he

argues the probation officer lacked the lawful authority to order him to refrain

from associating with Ms. Philpotts. Relying on this court’s decision in United

States v. Mike, Gaines asserts a sentencing judge may not delegate the duty of

imposing sentence to a probation officer. 632 F.3d 686, 695 (10th Cir. 2011). He

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argues his probation officer had no authority under the relevant condition to

instruct him to avoid contact with Ms. Philpotts because that instruction impinged

on his constitutionally protected interest in freedom of intimate association. Cf.

Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). Thus, he argues, the

probation officer’s instruction affected the nature or extent of his punishment and

was an improper exercise of the officer’s power under the terms of the relevant

condition of supervised release. 1 Mike, 632 F.3d at 695. Gaines argues that, but

for the court’s error, his supervised release would not have been revoked and a

new sentence would not have been imposed.

      Even assuming the district court plainly erred by basing its ruling, in part,

on Gaines’s failure to follow the instruction of his probation officer, Gaines is not

entitled to relief because he cannot show the alleged error affected his substantial

rights. See United States v. Algarate-Valencia, 550 F.3d 1238, 1243 & n.3 (10th

Cir. 2008) (addressing only the third prong of the plain error test). To meet his

burden under the third prong, Gaines must demonstrate the alleged error affected

his substantial rights. United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.


      1
       As we understand Gaines’s argument, he is not challenging the validity of
the previously imposed condition that he “answer truthfully all inquiries by the
probation officer and follow the instructions of the probation officer.” Nor could
he raise such an argument in this appeal. United States v. Wayne, 591 F.3d 1326,
1334 (10th Cir. 2010) (holding a defendant must challenge the legal and factual
basis of a supervised release condition on direct appeal). Instead, he is alleging
the specific instruction given by his probation officer exceeded the authority
delegated to her under the terms of that condition.

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2006). Gaines argues the alleged error affected his sentence and admits he must

demonstrate a reasonable probability that had the error not occurred, he would

have received a lesser sentence. 2 See United States. v. Trujillo-Terrazas, 405

F.3d 814, 819 (10th Cir. 2005). He also argues the error was constitutional and,

accordingly, this standard should be applied “less rigidly.” United States v.

James, 257 F.3d 1173, 1182 (10th Cir. 2001). Because we have no doubt the

outcome of the sentencing proceeding would have been the same even in the

absence of the alleged error, Gaines cannot meet the third prong under any

standard.

      Gaines relies on statements made by the district court during the revocation

hearing in which the court noted the revocation proceeding was triggered by

Gaines’s failure to follow the instructions of his probation officer. He argues this

      2
        Gaines’s eleven-month term of incarceration ended on January 29, 2015.
Accordingly, any challenge he raises to his prison term is now moot. United
States v. Meyers, 200 F.3d 715, 721-22 & n.3 (10th Cir. 2000). Gaines’s
challenge to the imposition of the forty-nine-month term of supervised release is
not moot because the district court retains discretion to modify it. See 18 U.S.C.
§ 3583(e). Although his briefing on the point is unclear, Gaines also appears to
argue his failure to follow the probation officer’s instructions was, in large part,
the reason for the revocation of his supervised release. We can quickly reject any
argument there was a reasonable probability Gaines’s supervised release would
not have been revoked if the district court had not considered his failure to follow
the probation officer’s instructions. Gaines argues the district court’s focus on
the challenged violation during the hearing demonstrates the importance the court
placed on the violation. The record, however, unequivocally shows that Gaines
violated three conditions of his supervised release and stipulated to two of those
violations. Accordingly, the district court’s failure to discuss the two stipulated
violations in depth during the hearing is unremarkable and does not demonstrate
the court considered them less significant than the challenged violation.
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demonstrates the district court was primarily concerned with that violation.

Gaines further asserts the district court’s “concern” led the court to impose a

sentence at the high end of the applicable guidelines range.

      Read in context, the district court’s statements do not support Gaines’s

argument. The thrust of the court’s discussion was to highlight for Gaines the

consequences of not following the probation officer’s instructions. The court

noted that if Gaines had done what the probation officer directed him to do and

avoided Ms. Philpotts, he would not have committed the assault or been arrested

for violating a protective order (an arrest that he failed to report to his probation

officer in violation of his conditions of supervised release). The record wholly

supports the district court’s observation that Gaines’s failure to follow the

instructions of his probation officer set in motion the series of subsequent

violations of his conditions of supervised release that contributed to the

revocation of his supervised release. In no way do the district court’s statements

support the notion that the court was primarily motivated by Gaines’s violation of

the challenged condition of supervised release when it imposed Gaines’s

sentence.

      Further, Gaines ignores the district court’s statement that it chose to

sentence him to a term of incarceration to “afford adequate deterrence to future

criminal conduct as well as to protect the public from further crimes of the

defendant.” The record, therefore, suggests the opposite of what Gaines

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argues—the sentence chosen by the court was primarily driven by Gaines’s

criminal conduct, not his failure to follow the probation officer’s instructions.

Having reviewed the record in full, this court concludes Gaines has failed to

demonstrate a reasonable probability his sentence would have been different in

the absence of the alleged error.

III.   CONCLUSION

       The judgment of the district court is affirmed.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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