                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       June 1, 2016
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                     No. 15-2112
                                               (D.C. No. 1:10-CR-00244-JB-1)
 MYRON ROBERT LEE,                                        (D. N.M.)

          Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK and MURPHY, 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, submitted without oral argument.

      Myron Robert Lee appeals the sentence imposed after the revocation of his

supervised release. First, he argues the district court procedurally erred by


      *
        This order and judgment is not binding precedent, except under the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.
relying in part on sentencing factors in 18 U.S.C. § 3553(a) that are not expressly

cross-referenced in 18 U.S.C. § 3583(e), the statute specific to revocation

sentencing. Second, he argues that the district court’s sentence was substantively

unreasonable. Finally, he argues that the district court relied on unproven factual

allegations in its sentencing calculation, in violation of his Due Process rights.

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

affirm.

                                           I

      While serving a three-year term of supervised release, Lee committed a

series of supervision violations. At his revocation hearing, Lee admitted to: (1)

failing to answer truthfully to all inquiries from his probation officer; (2) failing

to notify his probation officer within seventy-two hours of being questioned by

law enforcement; (3) failing to participate in an education or vocational program;

and (4) failing to abstain from alcohol.

      The Violation Report stated that Lee committed Grade C violations, as

defined by the United States Sentencing Guidelines § 7B1.1. With Lee’s criminal

history category of I, his Guideline imprisonment range was between three and

nine months. U.S.S.G. § 7B1.4(a).

      At the outset of sentencing arguments, the district court “was thinking

something a little bit higher in the guideline[]” range was appropriate because of

“the length of the problems” Lee had exhibited, and because of the “serious

                                           2
nature of some of the contacts he’s had with law enforcement.” ROA Vol. 2 at

15–16. Specifically, the court was concerned that Lee failed to report to his

probation officer that law enforcement officers had questioned him in connection

with his girlfriend’s recent death. The district court inquired as to circumstances

surrounding the woman’s death, and what evidence implicated Lee. Id. at 18; id.

at 27 (government counsel responding to the court’s questions and informing the

court that it was “an active homicide investigation,” that Lee was a suspect, and

that he was “the last one seen with her”).

      The government took no position on Lee’s sentence, but Lee presented

mitigating arguments. He explained that the unexpected death of his girlfriend

caused him a great deal of distress, leading to a relapse to alcohol and trouble

making appointments. He also indicated that he had a learning disability which

impeded his ability to complete the high school equivalency program in which he

was enrolled. Lee requested a time-served sentence (approximately thirty days),

or alternatively, a sentence at the low end of the Guideline range, followed by a

year of supervision. Lee also suggested that he be remanded to a halfway house

rather than incarcerated.

      Before imposing Lee’s sentence, the district court explained:

      [T]he Court has considered the guideline sentencing range . . . . And
      the Court believes that even though the defendant has requested a
      time served, given the serious allegations that are swirling around the
      defendant, as well as the serious nature of the violations to which
      he’s pled, the Court believes that the punishment set forth in the

                                             3
      guidelines is appropriate for this sort of offense.

      ...

             I agree with the defendant to a certain degree that some of
      these are not the most serious violations that we see. And if they’d
      come earlier in the process, it might be appropriate to sentence at the
      low end. But given the cumulative nature of them, given the fact that
      he’s just not doing very well on supervised release -- and you know,
      when he does get contacted by law enforcement on such serious
      charges, he’s just got to contact the Probation Office immediately.

             The alcohol concerns me greatly, given the underlying offense
            1
      here.[ ] I do think that a sentence at the high end is necessary to
      reflect the seriousness of the offense, the cumulative nature of them
      is necessary to promote respect for the law and provide just
      punishment, afford adequate deterrence, both at a specific and
      general level, and protect the public. It’s still a guideline sentence,
      so I think it avoids unwarranted sentencing disparity among
      defendants with similar records who have been found guilty of
      similar conduct. And because I am going to impose supervised
      release, I think the conditions I impose will provide the defendant
      with some needed education and training and care to avoid these
      problems in the future.

             In sum, I think this sentence fully and effectively reflects each
      of the relevant factors in 18 [U.S.C.] section 3553(a) and the
      purposes of supervised release. I think the sentence is reasonable,
      and I think the sentence is sufficient, without being greater than is
      necessary to comply with the purposes of punishment set forth in the
      Sentencing Reform Act.

Id. at 30–32. The district court sentenced Lee to nine months’ imprisonment,

followed by twenty-four months’ supervised release.

      The court then gave counsel a chance to make “any comments.” Id. at 35.


      1
       Lee was on supervised release as result of his prior conviction for
aggravated assault, in which his intoxication at the time played a role.

                                          4
Lee objected to the court’s reliance on “the cumulative nature” of his violations

because, Lee argued, the accumulation was the fault of the probation officer’s

delay in seeking revocation. Id. Lee also objected to the court’s “reference[] [to]

allegations not part of the petition,” arguing it was not “appropriate” for the court

to consider any suspicions law enforcement may have regarding his girlfriend’s

homicide. Id. Lee also noted that his violations were relatively minor and voiced

his opinion that a sentence at the lower end of the range would have been more

appropriate.

       In response to Lee’s comment regarding the homicide suspicions, the court

explained:

       [H]e’s presumed innocent of any charges, but the serious nature of
       the allegations and he didn’t bring that to the attention of the
       Probation Office, I think that’s the concern of the Court, is that he
       had a couple of domestic disturbances, or property damage, but
       mixed in there is an allegation of murder, and he didn’t bring that to
       the attention of the Court. So that’s the reason I mention that. Not
       to undercut his presumption of innocence. This is not imposed
       because that allegation is made. It’s imposed because he failed to
       bring such a serious charge to the attention of the Court.

Id. at 37.

                                          II

       We review the district court’s imposition of a revocation sentence for

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

“To say that the district court acted reasonably—either procedurally or

substantively—is to say that it did not abuse its discretion.” Id.

                                          5
      Because Lee did not raise the argument regarding erroneous consideration

of certain § 3553(a) sentencing factors before the district court, we review that

argument for plain error. United States v. Mendiola, 696 F.3d 1033, 1036 (10th

Cir. 2012). Lee may “obtain relief under the plain-error doctrine only if . . . (1)

the district court committed error; (2) the error was plain—that is, it was obvious

under current well-settled law; (3) the error affected [his] substantial rights; and

(4) ‘the error seriously affected the fairness, integrity, or public reputation of

judicial proceedings.’” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir.

2012) (internal alterations omitted) (quoting United States v. Dazey, 403 F.3d

1147, 1174 (10th Cir. 2005)). “Because all four requirements must be met, the

failure of any one will foreclose relief and the others need not be addressed.” Id.

                                          III

                             Procedural Reasonableness

      A district court “may, after considering the factors set forth” in certain

enumerated subsections of 18 U.S.C. § 3553(a), “revoke a term of supervised

release” and impose a revocation sentence. 18 U.S.C. § 3583(e). Nearly every

subsection of § 3553(a) is included in the § 3583(e) list, but § 3553(a)(2)(A) and

§ 3553(a)(3) are absent. Subsection 3553(a)(2)(A) calls for sentencing courts to

consider “the need for the sentence imposed . . . to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense.” 18 U.S.C. § 3553(a)(2)(A).

                                           6
      Lee argues that the district court procedurally erred by partially relying on

the § 3553(a)(2)(A) factors. Although the government argues that the district

court did not consider § 3553(a)(2)(A), the court’s explanation makes clear that it

did consider (a)(2)(A). ROA Vol. 2 at 30–32; see also id. at 29 (expressly relying

on “the factors set forth in 18 [U.S.C.] Section 3553(a)(1) through (7)”).

      If error, we question whether we can conclude under plain error review that

the error alleged was “obvious under current well-settled law.” See Gantt, 679

F.3d at 1246. Neither the Supreme Court nor this court have decided whether

consideration of these § 3553(a)(2)(A) factors renders a revocation sentence

procedurally unreasonable. See United States v. Miller, 608 F. App’x 707, 709

(10th Cir. 2015) (unpublished) (noting the lack of authority from this court or the

Supreme Court on the question).

      Several circuits have ruled that consideration of the § 3553(a)(2)(A) factors

does not automatically render a revocation sentence procedurally unreasonable,

but placing “undue weight,” permitting them to “predominate[]” the analysis, or

treating them as “dominant factors” may constitute reversible error. United States

v. Rivera, 797 F.3d 307, 309 (5th Cir. 2015) (denying petition for rehearing in

United States v. Rivera, 784 F.3d 1012 (5th Cir. 2015), and clarifying the court’s

application of United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011)); United

States v. Phillips, 791 F.3d 698, 701 (7th Cir. 2015) (clarifying United States v.

Clay, 752 F.3d 1106, 1108–09 (7th Cir. 2014)); United States v. Webb, 738 F.3d

                                          7
638, 642 (4th Cir. 2013); United States v. Young, 634 F.3d 233, 241 (3d Cir.

2011); United States v. Simtob, 485 F.3d 1058, 1062–64 (9th Cir. 2007)

(clarifying United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006)). 2

      Other circuits have ruled that district courts do not procedurally err by

considering § 3553(a)(2)(A) in revocation sentencing, but have yet to conclude

that procedural error could occur when (a)(2)(A) is the dominant consideration.

United States v. Lewis, 498 F.3d 393, 399–400 (6th Cir. 2007); United States v.

Williams, 443 F.3d 35, 47–48 (2d Cir. 2006); see also United States v.

Vargas-Davila, 649 F.3d 129, 131–32 (1st Cir. 2011) (considering a substantive

unreasonableness challenge to consideration of (a)(2)(A) factors).

      “If neither the Supreme Court nor the Tenth Circuit has ruled on the

subject, we cannot find plain error if the authority in other circuits is split.”

United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006). Thus, even if the

district court relied primarily on § 3553(a)(2)(A) here, the law is not clear or

obvious in this circuit that such a degree of reliance would be in error. Compare

e.g., Webb, 738 F.3d at 642 with Lewis, 498 F.3d at 400.

      If § 3553(a)(2)(A) was not the dominant consideration, Lee argues that a



      2
        Lee and the government perceive a conflict within this group of circuits.
Similarly, other circuits recognizing a circuit split perceive the Fourth, Fifth and
Ninth circuits as in conflict with the others. E.g., United States v. Vandergrift,
754 F.3d 1303, 1308–09 (11th Cir. 2014). However, a close reading of the most
recent clarifications from these circuits reveals consistency rather than conflict.

                                           8
district court necessarily “crafts a procedurally and substantively unreasonable

sentence” if it relies at all on § 3553(a)(2)(A). 3 Aplt. Br. at 14–15. But no other

circuit adheres to this interpretation. Nor is Lee’s interpretation clear or obvious

from the face of the statute. Lee is correct that Congress omitted § 3553(a)(2)(A)

from § 3583(e), and that we must afford meaning to its omission. But, as other

circuits have pointed out, Congress did not state that courts may only consider the

enumerated factors. Webb, 738 F.3d at 641. And other circuits have afforded

meaning to Congress’s omission by concluding that (a)(2)(A) is not a mandatory

consideration as the other factors are, and if considered, it must not serve as the

predominant factor in the revocation sentence. Rivera, 797 F.3d at 309; Phillips,

791 F.3d at 701; Young, 634 F.3d at 240–41; Simtob, 485 F.3d at 1062.

      We therefore conclude that the district court did not commit plain

procedural error by considering the § 3553(a)(2)(A) sentencing factors.



      3
         Lee relies on the Fourth Circuit’s decision in United States v. Crudup, 461
F.3d 433 (4th Cir. 2006), the Fifth Circuit’s Miller decision, and Ninth Circuit’s
Miqbel decision. But Crudup only addressed the § 3553(a)(2)(A) issue in dicta,
explaining the difference between the goals of criminal sentencing and those of
revocation sentencing. Crudup, 461 F.3d at 437–39. Instead, Webb is the Fourth
Circuit’s controlling authority on this issue. 738 F.3d at 642 (“[A]lthough a
district court may not impose a revocation sentence based predominately on” the
§ 3553(a)(2)(A) factors, “we conclude that mere reference to such considerations
does not render a revocation sentence procedurally unreasonable.”). The law of
the Fifth and Ninth Circuits has been clarified by subsequent decisions to stand
for essentially the same rule as Webb. Rivera, 797 F.3d at 308–09; Simtob, 485
F.3d at 1062–64.


                                          9
                            Substantive Reasonableness

      Lee argues that his sentence was substantively unreasonable because it was

greater than necessary to accomplish the purposes of § 3583(e). In addition to his

argument regarding “prohibited” factors, he argues that the district court failed to

adequately consider non-imprisonment sanctions and that it unduly minimized

mitigating factors.

      This court applies a rebuttable presumption that within-Guideline

revocation sentences are substantively reasonable. McBride, 633 F.3d at 1233.

While a non-imprisonment sanction or a shorter imprisonment term may have

been reasonable in Lee’s case, Lee “must do more than show that his preferred

sentence was a reasonable one.” Id. at 1232. “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.” Id.

      Here, Lee’s Guideline range was three to nine months, and he was

sentenced within that range. The district court took Lee’s arguments for a lower

sentence into consideration, but based on the cumulative nature of Lee’s

violations, the significant law enforcement contacts which Lee failed to report,

the nature of his substance abuse relapse, and the need to protect the public and

deter Lee from future violations, the court imposed a sentence at the top of that

range. Although Lee is correct that lesser sentences might have been reasonable,

he has failed to overcome the presumption that the sentence imposed was

                                         10
substantively reasonable.

                            Reliance on Unproven Facts

      Lee argues that the district court “believed” the government’s suspicion

that Lee was involved in his girlfriend’s death, and incorporated this unsupported

fact into its sentencing calculus. Aplt. Br. at 33. To the contrary, the district

court was clear: “This [sentence] is not imposed because that [homicide]

allegation is made. It’s imposed because [Lee] failed to bring such a serious

charge to the attention of the Court.” ROA Vol. 2 at 37. Lee does not dispute

that law enforcement officers contacted him in connection with his girlfriend’s

death, that he was required to report this contact to his probation officer, or that

he failed to do so. The district court therefore did not rely on any unsubstantiated

facts in imposing its sentence, and therefore we need not proceed to address

whether doing so would constitute reversible error.




                                          11
                                        IV

      The judgment of the district court is affirmed. The government’s motion to

supplement the record 4 is denied as moot.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




      4
         Approximately two months after the district court entered final judgment
in this case and Lee filed his notice of appeal, the district court filed a
Memorandum Opinion. The government filed a motion to supplement the
appellate record with the opinion. Lee opposed the motion, ostensibly because
the opinion would bolster the district court’s oral explanation of its sentencing
rationale. Because the Memorandum Opinion is not essential to the disposition of
this appeal, we deny the motion as moot.

                                        12
