                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 25, 2014
                                                              Elisabeth A. Shumaker
                               TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

 v.                                                    No. 13-1304
                                            (D.C. No. 1:06-CR-00136-WYD-1)
 NEIL PETTIGREW,                                      (D. Colorado)

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
        Defendant and Appellant, Neil Pettigrew, appeals the sentence imposed

upon him following the violation of his supervised release. Finding his sentence

neither procedurally nor substantively unreasonable, we affirm that sentence.



                                  BACKGROUND

        Mr. Pettigrew’s initial contact with the criminal justice system occurred in

2006. At that time, while driving a car under the influence of alcohol, he lost

control and caused an accident that resulted in the death of his younger brother.

He was charged with and convicted of involuntary manslaughter. In addition to

serving a term of imprisonment, Mr. Pettigrew was sentenced to a three-year term

of supervised release. That first term of supervised release commenced in April

2009.

        Throughout that first term of supervised release, Mr. Pettigrew struggled to

remain sober. Due to his noncompliance with the conditions of his supervised

release, the original conditions were modified twice. In October 2010, after his

third incident involving excessive use of alcohol and failure to participate in a

substance abuse treatment program, Mr. Pettigrew’s supervised release was

revoked. He was sentenced to five months’ imprisonment, followed by thirty-one

months of supervised release, which began in December 2010.

        In May 2011, his supervised release conditions were modified to include, as

a special condition, that he reside in a residential reentry center for up to 120

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days. In November 2011, Mr. Pettigrew’s supervised release was revoked for a

second time. He was then sentenced to eight months’ confinement, followed by a

third term of supervised release, which began in April 2012.

      In August 2012, a Farmington, New Mexico, police officer responded to a

“suspicious situation” at a local general store. Attachment to Supp. Pet.; R. Vol.

1 at 18. The officer encountered Mr. Pettigrew, apparently staggering and under

the influence of alcohol. The police officer decided to transport Mr. Pettigrew to

a detox facility for his safety. While en route, Mr. Pettigrew “became hostile and

called the officer profane names.” Id. When they arrived, Mr. Pettigrew “swung

his fist at the officer,” which resulted in a scuffle. Id. After he was handcuffed,

Mr. Pettigrew continued to be “resistive and combative.” Id.

      Mr. Pettigrew pled guilty to Battery Upon a Peace Officer, in violation of

New Mexico law. He was sentenced to eighteen months’ imprisonment, followed

by a one-year term of mandatory parole. The New Mexico state court ordered

this state sentence to run concurrently with Mr. Pettigrew’s federal sentence for

violating his supervised release (the sentence at issue in this case).

      In preparation for sentencing in federal court on the federal revocation

charge, Mr. Pettigrew’s probation officer filed a Supervised Release Violation

Report (“PSR”), R. Vol. 2 at 4. The PSR characterized the state battery

conviction as a Grade A violation for purposes of sentencing under the advisory

United States Sentencing Commission, Guidelines Manual (“USSG”)

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§ 7B1.1(a)(1). With a criminal history category of III, the PSR determined that

Mr. Pettigrew’s advisory Guidelines sentencing range was eighteen to twenty-four

months. The PSR noted that the district court had the discretion to impose the

revocation sentence to run concurrently or consecutively to the state sentence for

the underlying offense (in this case, the battery conviction). The PSR further

noted that the state court had ordered the state sentence to run concurrently with

his federal revocation sentence, but explained that the district court “is not bound

by this [state court] judgment.” PSR at 8; R. Vol. 2 at 11. The PSR ultimately

recommended an eighteen-month sentence, to be served consecutively or partially

consecutively to the state court battery conviction sentence.

      Mr. Pettigrew admitted both supervised release violations contained in the

PSR (use of alcohol and the battery conviction), but he filed an Objection to

Supervised Release Violation Report. R. Vol. 1 at 19. In that Objection, he

argued that the battery conviction was not a crime of violence and was, therefore,

properly characterized as a (less serious) Grade B violation for purposes of

determining a revocation sentence under the Guidelines.

      At Mr. Pettigrew’s Supervised Release Violation Hearing, the district court

listened to arguments from defense counsel, the government, and the probation

office, and it reviewed the statutory language, the Guidelines, and Mr. Pettigrew’s

conduct. The court overruled Mr. Pettigrew’s objection to the categorization of




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the battery conviction as a Grade A violation of his supervised release. 1 The

court then imposed an eighteen-month sentence, to be served consecutively to the

state court battery sentence. Arguing that this sentence is procedurally and

substantively unreasonable, Mr. Pettigrew appeals.



                                    DISCUSSION

      We now review federal sentences for reasonableness, applying a deferential

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007);

United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011). “Our review

proceeds in two steps. First, we must ‘ensure that the district court committed no

significant procedural error.’” Lente, 647 F.3d at 1030 (quoting Gall, 552 U.S. at

51)). If we conclude that the sentence is procedurally reasonable, we then

“consider the substantive reasonableness of the sentence imposed.” Gall, 552

U.S. at 51. Mr. Pettigrew challenges both the procedural and substantive

reasonableness of his sentence. We address each in turn.

      I. Procedural Reasonableness:

      “In general, a procedural challenge relates to the ‘method by which the

sentence is calculated.’” Lente, 647 F.3d at 1030 (quoting United States v.

Wittig, 528 F.3d 1280, 1284 (10th Cir. 2008)). The Supreme Court in Gall

identified the following procedural errors: “failing to calculate (or improperly

      1
          This decision has not been appealed.

                                          -5-
calculating) the Guideline range, treating the Guidelines as mandatory, failing to

consider the [18 U.S.C. ]§ 3553(a) factors, [and] selecting a sentence based on

clearly erroneous facts.” Gall, 552 U.S. at 51. A defendant may also challenge

the procedural reasonableness of a sentence when the district court has “failed to

adequately explain the chosen sentence.” Lente, 647 F.3d at 1030.

      Mr. Pettigrew argues his sentence is “plainly procedurally unreasonable

because the district court failed to consider the applicable sentencing factors and

to explain why it imposed a consecutive sentence.” Appellant’s Br. at 11. He

concedes he failed to contemporaneously object to this claimed procedural error,

and so our review is for plain error only. “We find plain error only when there is

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

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

proceedings.” United States v. Warren, 737 F.3d 1278, 1285 (10th Cir. 2013).

      We have stated that a “district court commits a procedural sentencing error

by failing to consider sentencing factors enumerated in 18 U.S.C. § 3553(a) or by

failing to offer an individualized assessment of how the factors apply in a

particular criminal defendant’s case.” United States v. Chavez, 723 F.3d 1226,

1232 (10th Cir. 2013). This obligation applies also when a court decides whether

to impose a consecutive or concurrent sentence. Id.; see United States v. Rose,

185 F.3d 1108, 1112-13 (10th Cir. 1999); 18 U.S.C. § 3584(b).

      We have explained this obligation more fully, however, as follows:

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      Where a district court imposes a sentence falling within the range
      suggested by the Guidelines, Section 3553(c) requires the court to
      provide only a general statement of the reasons for its imposition of
      the particular sentence. This generalized statement need involve no
      ritualistic incantation to establish consideration of a legal issue, nor
      do we demand that the district court recite any magic words to prove
      that it considered the various factors Congress instructed it to
      consider. We will only step in and find error when the record gives
      us reason to think that our ordinary presumption that the district
      judge knew and applied the law is misplaced.

Id. (quoting United States v. Benally, 541 F.3d 990, 996-97 (10th Cir. 2008)).

When imposing a sentence following revocation of supervised release, a district

court must also consider the Guidelines Chapter 7 policy statements. See United

States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006).

      We agree with the government that, although the district court did not

explicitly reference § 3553(a) or Chapter 7 at the sentencing hearing, the record

as a whole makes it clear that the court considered the relevant factors and made

an individualized assessment when deciding to have Mr. Pettigrew’s sentence run

consecutively to his state sentence. The PSR specifically discussed the

consecutive-vs-concurrent sentence issue, stating:

      Pursuant to U.S.S.G. § 7B1.3(f), any term of imprisonment imposed
      upon revocation of probation or supervised release shall be ordered
      to be served consecutively to any sentence of imprisonment that the
      defendant is serving, whether or not the sentence of imprisonment
      being served resulted from the conduct that is the basis of the
      revocation of probation or supervised release.

PSR at 4; R. Vol. 2 at 7 (quoting USSG § 7B1.3(f)). But the PSR also made clear

that § 7B1.3(f) is merely an advisory policy statement, which did not limit the

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court’s discretion. The PSR further reminded the court that it must consider the

§ 3553(a) sentencing factors as well as the Guideline policy statements in

selecting a sentence and determining whether it ran concurrently or consecutively.

And, as indicated above, the PSR ultimately recommended a consecutive, or at

least partially consecutive, sentence to reflect the severity of Mr. Pettigrew’s

criminal conduct. Given the extensive argument concerning the consecutive

versus concurrent issue, we are convinced of the clarity of the district court’s

reasoning.

      Similarly, we are confident that the court performed its duty of considering

the § 3553(a) sentencing factors and Guideline policy statements when imposing

its within-Guidelines sentence. The court stated it had “heard from everybody

who wishe[d] to make a statement” and was “taking those comments, as well as

the defendant’s statement into account.” Tr. of Sup. Release Violation Hr’g at

30; R. Vol. 3 at 33. As we observed in another similar case, “[t]he court heard

several different arguments regarding the appropriate sentencing range and was

obviously familiar with the facts of the case. We will not make the useless

gesture of remanding for reconsideration when Defendant was aware at

sentencing that all relevant factors would be considered by the court.” United




                                         -8-
States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005). We perceive no plain

procedural error in the district court’s calculation of Mr. Pettigrew’s sentence.



      II. Substantive Reasonableness:

      As both parties acknowledge, a district court has the discretion to impose

consecutive or concurrent sentences. 18 U.S. C. § 3584(a). Furthermore, as

indicated above, the Guidelines policy statements urge that a “term of

imprisonment upon the revocation of . . . supervised release shall be . . . served

consecutively.” USSG § 7B1.3(f). A sentence imposed within the properly-

calculated Guideline range, including a sentence imposed for revocation of

supervised release, is accorded a rebuttable presumption of reasonableness.

United States v. McBride, 633 F.3d 1229, 1232-33 (10th Cir. 2011). The

presumption may, of course, be rebutted “‘by demonstrating that the sentence is

unreasonable in light of the other sentencing factors laid out in [18 U.S.C. ]

§ 3553(a).’” Id. at 1233 (quoting United States v. Kristl, 437 F.3d 1050, 1055

(10th Cir. 2006)).

      “In considering whether a defendant’s sentence is substantively reasonable,

we examine whether the length of the sentence is reasonable given all the

circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”




                                         -9-
Chavez, 723 F.3d at 1233 (further quotation omitted). 2 After considering those

factors, we find Mr. Pettigrew has failed to rebut the presumption of

reasonableness accorded his sentence.

      He asserts that the sentence is “too long because the district court unduly

discounted the disease-like nature of Mr. Pettigrew’s alcoholism and gave him no

credit for his recent progress in treatment.” Appellant’s Op. Br. at 23. He then

supposes that the only explanation for this sentence is “a punitive one.” Id. at 24.

But this ignores the fact that this case represents the third time Mr. Pettigrew’s

supervised release has been revoked. As the government stated, “[d]espite . . .

progressively longer periods of incarceration, Mr. Pettigrew still lacks the

motivation to comply with the conditions of his supervised release and maintain

his sobriety.” Appellee’s Br. at 21-22. He has demonstrated a proclivity to

become violent and dangerous when drinking and an inability to abide by

conditions designed to help him address his alcoholism. In short, Mr. Pettigrew’s

sentence is substantively reasonable.



      2
        Mr. Pettigrew points out to us the difficulty of applying a standard of
review like “abuse of discretion,” noting that our own court has observed that it is
“not altogether free from interpretation.” United States v. McComb, 519 F.3d
1049, 1053 (10th Cir. 2007). Nonetheless, as we further stated in McComb, “it is
a standard we have long familiarity with applying, and one which we have
traditionally understood to mean that we will reverse a determination only if the
court ‘exceeded the bounds of permissible choice,’ given the facts and the
applicable law in the case at hand.” Id. (quoting United States v. Ortiz, 804 F.2d
1161, 1164 n.2 (10th Cir. 1986)).

                                        -10-
                                CONCLUSION

      For the foregoing reasons, finding Mr. Pettigrew’s sentence procedurally

and substantively reasonable, we AFFIRM that sentence. We DENY his motion

to supplement the record.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




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