                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 2, 2010
                 UNITED STATES COURT OF APPEALS A. Shumaker
                                            Elisabeth
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-6134
 v.                                            (D.C. No. 5:03-CR-00225-D-1)
                                                      (W. Dist. Okla.)
 TONY ACOSTA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR and EBEL, Circuit Judges.


      Mr. Acosta pled guilty to possessing a firearm with an obliterated serial

number in violation of 18 U.S.C. § 922(g)(k), and received a sentence of forty-

one months’ imprisonment followed by a three-year term of supervised release.

He began to serve his period of supervised release on August 13, 2008. On April

21, 2009, he was arrested for robbery, kidnaping, and possessing drugs with intent

      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
to distribute. The probation office filed a petition to revoke Mr. Acosta’s

supervised release, citing the April 21, 2009 arrest as well as other violations of

the terms of supervised release. After a hearing, the district court imposed a

sentence of eighteen months’ imprisonment, followed by eighteen months’

supervised release. This appeal followed. We affirm.

       The probation office’s revocation petition reported violations of the

following conditions of supervision:

       1. The defendant shall not commit another federal state or local
       crime; . . .
       2. The defendant shall refrain from excessive use of alcohol and
       shall not purchase, possess, use, distribute or administer any
       controlled substance or any paraphernalia related to any controlled
       substances, except as prescribed by a physician; . . .
       3. The defendant shall not associate with any persons engaged in
       criminal activity and shall not associate with any person convicted of
       a felony, unless granted permission to do so by the probation officer;
       ...
       4. The defendant shall report to the probation officer and shall
       submit a truthful and complete written report within the first five
       days of each month; . . .
       5. The defendant shall permit a probation officer to visit him or her
       at any time at home or elsewhere and shall permit confiscation of any
       contraband observed in plain view by the probation officer . . . .

Id. at 9-11. Mr. Acosta stipulated to violations of (4) and (5), but not (1), (2), and

(3).

       In support of the remaining alleged violations, the Government examined

the officer involved in the arrest and the probation officer who supervised Mr.

Acosta. Mr. Acosta, in turn, called his mother as a witness. She testified that Mr.


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Acosta had a drug problem for which he had never received treatment. Mr.

Acosta asked the court for assistance with his drug problem, stating that “[t]he

only reason I – I do these crimes, run from police, is because I’m on drugs. . . .

But if I’m sober, I’m a good person, you know. I have never hurt nobody or

nothing like that unless I’m in possession of things, you know.” Rec. vol. III, at

56.

      The United States agreed that Mr. Acosta needed drug treatment. It

opposed inpatient drug treatment, however, contending Mr. Acosta’s criminal

history and the need to protect the public supported relegating Mr. Acosta to a

prison facility where he could receive such treatment in a custodial setting.

      At the close of the evidence, the district court held that Mr. Acosta violated

the terms of his supervised release and imposed a sentence of eighteen months’

incarceration. The court made clear that the “defendant [was to] receive drug and

alcohol counseling and treatment as available during his stay in the Oklahoma

Halfway House.” Id. at 60. The court continued:

      [T]he sentence imposed today reflects both the concerns of the
      government with respect to safeguarding the community, but also
      reflects the concerns that the Court has to make sure that you get
      adequate, sufficient treatment to help you overcome this problem that
      you have with drug use.

Id. at 61. At that time, Mr. Acosta lodged no objection to the sentence, the

district court’s calculation of the sentence, or its justification for the sentence.

      On appeal, Mr. Acosta challenges the reasonableness of his sentence,

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arguing (1) “[t]he district court did not give sufficient reasons for disregarding

the request for inpatient drug treatment”; and (2) “[w]hen viewed in the context of

his lack of prior substance abuse treatment and his request for inpatient drug

treatment, the violations are not of sufficient magnitude to warrant such a harsh

sentence.” Aplt. Br. at 7. A defendant challenging his sentence bears the burden

of establishing that it is unreasonable. See United States v. Tomko, 562 F.3d 558,

567 (3d Cir. 2009); United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Where, as here, a defendant does not contemporaneously object to the

sentencing procedure used, we review only for plain error. United States v.

Romero, 491 F.3d 1173, 1176 (10th Cir. 2007) (“[B]ecause the defendant-

appellant did not object to the district court’s lack of explanation after it

announced his sentence, ‘plain-error review is appropriate.’”) (citing United

States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006)). The plain error

test requires Mr. Acosta to demonstrate the district court (1) committed error, (2)

that is plain, and (3) that affects his substantial rights. United States v. Olano,

507 U.S. 725, 732 (1993). If Mr. Acosta meets his burden of establishing the first

three prongs of the plain error test, we may exercise discretion to correct the error

if it “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Contreras-Martinez, 409 F.3d at 1236, 1239 (10th

Cir. 2005). Here, however, we need not examine the second, third, or fourth

prongs of the plain error test because the district court committed no error.

                                           -4-
      Mr. Acosta asserts that the court erred by placing undue weight on the

nature and circumstances of his case, namely, Mr. Acosta’s criminal “history and

characteristics and the need to protect the public,” Aplt. Br. at 11, in violation of

18 U.S.C. § 3583(e). Yet, a review of the sentencing transcript reveals not only

the district court’s consideration of the § 3553 factors, see rec. vol. III, at 59, but

a thoughtful evaluation of competing concerns – Mr. Acosta’s need for drug

treatment and the government’s interest in safeguarding the community by

confining him. Id. at 61. Finding no error, we affirm the procedural

reasonableness of Mr. Acosta’s sentence.

      Mr. Acosta also challenges the “harsh[ness]” of his sentence, contending

that the absence of prior opportunities for receipt of drug treatment and his

request for inpatient drug treatment weigh against “such a harsh sentence.” Aplt.

Br. at 7. This substantive reasonableness challenge to the length of his sentence

is subject to a deferential abuse-of-discretion standard of review. Gall v. United

States, 552 U.S. 38, 41 (2007).

      At the outset, we note that Mr. Acosta’s sentence of eighteen months is

below the applicable guideline range because of the statutory maximum

applicable to the revocation of his supervised release. 1 The district court chose to


      1
        Under U.S.S.G. § 7B1.4 (Term of Imprisonment (Policy Statement)), Mr.
Acosta’s grade of violation (A) and criminal history category (VI) subjected him
to a sentencing guideline range of 33-41 months. Mr. Acosta does not challenge
the district court’s determination that the statutory maximum sentence for the

                                           -5-
sentence him lower than the statutory maximum. We are not persuaded that the

district court abused its discretion in determining that Mr. Acosta’s lack of prior

drug treatment was sufficient to warrant a lower sentence or a placement in an

outpatient facility. Accordingly, we conclude that Mr. Acosta has failed to satisfy

his burden to demonstrate that his sentence was substantively unreasonable.

      We AFFIRM Mr. Acosta’s sentence.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




offense was 24 months. See Aplt. Br. at 6. Mr. Acosta received a sentence of 18
months.

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