                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                October 26, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 11-7013
    v.                                        (D.C. No. 6:97-CR-00039-FHS-1)
                                                        (E.D. Okla.)
    ROBERT ALLEN CORLEY,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.


         Robert Allen Corley appeals the sentence imposed following revocation of

his supervised release. The district court sentenced him to 50 months in prison,

four months above the range indicated by the United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”). Our jurisdiction arises from 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a). We affirm.


*

       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                   Background

      In 1997, Mr. Corley entered guilty pleas to two counts of a numerous-count

indictment charging him and others with drug-trafficking and firearms crimes. He

entered guilty pleas to counts one and two: conspiracy to possess with intent to

distribute and distribution of methamphetamine, and money laundering. His

Guidelines sentencing range was 235 to 293 months. He was sentenced to 168

months in prison, to be followed by 60 months of supervised release. The

conditions of his supervised release included prohibitions on possessing a

controlled substance and possessing a firearm. R. Vol. 1 at 79. After serving 13

years, he was released from prison and he began his period of supervised release.

      In February 2011, the United States Probation Office sought to revoke

Mr. Corley’s supervised release, asserting that he had violated the terms of

supervised release by illegally possessing a controlled substance and a firearm.

Those proceedings culminated in a final hearing, at which the district court heard

testimony from three witnesses. One testified, among other things, that he and

Mr. Corley went from Stidham to Oklahoma City in the spring of 2010, where he

observed Mr. Corley purchase methamphetamine from a man called “Monday.”

When they returned to Stidham, Mr. Corley gave the witness a rock of

methamphetamine, which he smoked. The district court also heard the testimony

of an agent with the Drug Enforcement Administration, showing that Mr. Corley




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had been in telephone contact with Monday 40 to 50 times between January and

June of 2010.

      The district court also heard from Carrie Stachmus, whose testimony forms

the basis of this appeal. She admitted that she was a regular methamphetamine

user. She described a trip to Oklahoma City in the late spring or early summer of

2010 with Mr. Corley and his wife to purchase methamphetamine from her drug

connection there. She stated that Mr. Corley gave her $4000 to purchase

methamphetamine, but Mr. Corley rejected it because it “wasn’t quality, it was

cut,” R. Vol. 2 at 83. According to Ms. Stachmus, Mr. Corley told her to get his

money back, and when she could not, he and his wife “battered” her, and

Mr. Corley held a gun to her head. Id. at 89. Near the conclusion of her

testimony, the district court asked Ms. Stachmus when was the last time she had

used methamphetamine. She responded that she had not used methamphetamine

since the previous December, two or three months before the hearing. On her

way out of the courthouse, however, she told a victim-witness assistant that she

had lied to the judge about how long it had been since she had used

methamphetamine. This was promptly reported in open court. Defense counsel

objected to basing the revocation of supervised release on Ms. Stachmus’s

testimony. The district court then inquired whether the government had made a

deal with Ms. Stachmus in exchange for her testimony. The prosecutor responded

that no deal had been made with her, although she was not prosecuted as part of

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the broader drug conspiracy, “primarily because she wasn’t a significant enough

player in any of that for [the government] to be interested in her.” Id. at 146-47.

The prosecutor further reported that state charges were pending against

Ms. Stachmus but he also had made no deal with the state prosecutor.

      The district court found that Mr. Corley had violated the conditions of his

supervised release, specifically that he illegally possessed a controlled substance,

methamphetamine, for the purpose of distribution. The court found Ms. Stachmus

not credible and therefore dismissed the firearms charge because it was based

solely on her testimony. The court noted that the other witnesses provided

sufficient evidence that Mr. Corley had possessed methamphetamine.

      The district court advised Mr. Corley that the Guidelines sentencing range

for revocation of his supervised release was 37 to 46 months, and that the

statutory maximum was 60 months on count one (the drug charge) and 24 months

on count two (the firearms charge) of the original offenses. See 18 U.S.C.

§ 3583(e)(3).

      The district court imposed a sentence of 50 months on count one and 24

months on count two, to run concurrently. In sentencing Mr. Corley, the court

noted that it had reviewed the applicable statutes and policy statement. The court

considered the nature and circumstances of Mr. Corley’s conduct, as well has his

criminal history and characteristics, and determined that the 50-month sentence

provided just punishment for noncompliance with the terms of his supervised

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release, was an adequate deterrent from criminal conduct, and promoted respect

for the law.

      Mr. Corley appeals the 50-month sentence, contending that Ms. Stachmus’s

lie about how long it had been since she had used methamphetamine “corrupted

the evidentiary process.” Aplt. Br. at 23. Accordingly, he argues that the

sentence is substantively unreasonable.

                                     Discussion

      Our review of the district court’s application of the relevant factors for

revoking a term of supervised release and determining the sentence is deferential.

United States v. McBride, 633 F.3d 1229, 1231-32 (10th Cir. 2011). We will

affirm a revocation sentence if it is procedurally and substantively reasonable. Id.

at 1232. “A sentence in excess of that recommended by the Chapter 7 policy

statements will be upheld if it can be determined from the record to have been

reasoned and reasonable.” United States v. Steele, 603 F.3d 803, 807 (10th Cir.

2010) (internal quotation marks omitted) (brackets omitted). “To say that the

district court acted reasonably–either procedurally or substantively–is to say that

it did not abuse its discretion.” McBride, 633 F.3d at 1232. We will find an

abuse of discretion only if the sentence imposed is “arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Huckins, 529 F.3d

1312, 1317 (10th Cir. 2008) (internal quotation marks omitted).




                                          -5-
      Mr. Corley does not challenge the revocation of his supervised release, nor

does he allege that his revocation sentence is procedurally unreasonable. He

contends that his sentence is substantively unreasonable because the district court

may have relied on Ms. Stachmus’s testimony in imposing an above-Guidelines

sentence.

      There is no indication in the record that the district court’s decision to

impose an above-Guidelines sentence was influenced by Ms. Stachmus’s

testimony. To the contrary, the record makes clear that the court gave no weight

to her testimony. The court dismissed the firearms count because it was based

solely on her statement, and the court specifically noted that the testimony of the

other witnesses established the controlled-substance violation.

      Moreover, the applicable policy statement supports an above-Guidelines

sentence. The district court is to consider “the applicable . . . policy statements

issued by the Sentencing Commission,” when deciding on a reasonable sentence

for violating a condition of supervised release. 18 U.S.C. § 3553(a)(4)(B).

“These policy statements . . . represent an expert assessment of appropriate

sentencing practices, often informed by empirical data regarding actual

sentencing practices.” McBride, 633 F.3d at 1232. The applicable policy

statement was U.S.S.G. § 7B1.4, pertaining to imprisonment upon revocation of

supervised release. Application note 4 to § 7B1.4 provides, “[w]here the original

sentence was the result of a downward departure . . . an upward departure may be

                                          -6-
warranted.” Mr. Corley’s original sentence was the result of downward departure.

Accordingly, an upward departure was warranted on the revocation sentence.

      Applying our deferential standard of review, and “tak[ing] into account the

totality of the circumstances, including the extent of [the] variance from the

Guidelines range,” Gall v. United States, 552 U.S. 38, 51 (2007), we determine

that the sentence above the Guidelines range, but below the statutory maximum, is

substantively reasonable.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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