                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 29, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-6230
 v.                                            (D.Ct. No. 5:96-CR-00186-R-1)
                                                        (W.D. Okla.)
 BLAINE CHARLES MOORE,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BARRETT, 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.



      Defendant-Appellant Blaine Charles Moore appeals his sentence following



      *
         This order and judgment is not binding precedent except under the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.
revocation of his supervised release on grounds the district court erred by: (1)

imposing both a term of incarceration and additional supervised release following

revocation of his original term of supervised release; and (2) imposing an

unreasonable sentence by failing to adequately explain his sentence in

conjunction with the sentencing factors in 18 U.S.C. § 3553(a) and Chapter Seven

of the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). We

exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and

affirm Mr. Moore’s sentence.



                             I. Procedural Background

      In 1997, Mr. Moore pled guilty to one count of possession of a machine

gun in violation of 18 U.S.C. § 922(o). The district court sentenced him to

ninety-six months imprisonment and three years supervised release. Mr. Moore’s

supervised release began on July 5, 2007. On August 27, 2008, the government

petitioned the district court for a warrant or summons concerning the revocation

of Mr. Moore’s supervised release based on multiple alleged violations. At a

revocation hearing on October 1, 2008, the government withdrew its allegations

concerning his arrest for breaking and entering and arrest for assault and

aggravated battery during his supervised release. 1 Mr. Moore stipulated to the

      1
         The transcript of the hearing shows the government agreed to withdraw
as violations Mr. Moore’s breaking and entering arrest, based on Mr. Moore’s
                                                                    (continued...)

                                         -2-
remaining violations, admitting he: (1) tested positive for cocaine on June 6,

2008; (2) committed a theft crime while on supervised release; (3) failed to notify

the federal probation officer within seventy-two hours of his arrests for driving

under the influence and for breaking and entering; (4) failed to notify the federal

probation officer of his change of residence; and (5) failed to submit any

verifiable community service hours as instructed by the federal probation officer.

Based on Mr. Moore’s stipulation to those violations, the district court found by a

preponderance of the evidence he violated the terms of his supervised release and

ordered his term of supervised release revoked. During the remaining portion of

the revocation hearing, counsel for both parties presented argument concerning

the sentence to be imposed and Mr. Moore also addressed the district court.



      Specifically, Mr. Moore’s counsel argued for a sentence below the

Guidelines range of eight to fourteen months imprisonment, requesting a sentence

of three months incarceration. In support, he pointed out Mr. Moore tested

positive for cocaine only once, shortly after his release from prison; had gone to

aftercare with no further drug use violations; and committed petty theft for

stealing a hot water heater to install in a trailer he was living in. Mr. Moore then


      1
       (...continued)
counsel’s representation that local authorities were not prosecuting him on that
charge, and his assault and aggravated battery arrest, given Mr. Moore’s intention
to contest that charge, for which he had not yet been convicted.

                                         -3-
addressed the district court, stating he wanted to get back to work and know his

daughter, had associated with the wrong crowd, and was tired of being in prison.

The district court responded by noting Mr. Moore did not “have a very good

record.” R., Vol. 2 at 8. During its colloquy with Mr. Moore, the district court

asked, “[w]hat’s your problem, Mr. Moore? ... I have gone back and reread the

presentence report and you’ve got a terrible record.” Id. Finally, government

counsel addressed the court, arguing against a three-month below-Guidelines

sentence and pointing to Mr. Moore’s substantial drug and alcohol problem; his

four or five significant brushes with the law while on supervised release, which

included theft and assault; his association with the wrong crowd; and his failure

to make the right choices.



      In imposing the sentence, the district court explicitly stated it had

considered the advisory Guidelines and also noted that it had reviewed all of the

records in the case and listened to counsels’ arguments and Mr. Moore’s

statement. It also addressed Mr. Moore, stating, “you do have a dismal record

and sometimes prison is the best place for people like you, I’m afraid.” Id. at 10.

It then sentenced Mr. Moore within the advisory Guidelines range to twelve

months imprisonment and twenty-four months supervised release.



                                   II. Discussion

                                         -4-
      On appeal, Mr. Moore contends the district court erred in imposing both a

term of incarceration and additional supervised release following revocation of

his original term of supervised release. In support, Mr. Moore argues his conduct

involving his original firearm conviction occurred prior to the effective date of

subsection (h) to 18 U.S.C. § 3583, which expressly authorizes imposition of an

additional term of supervised release after imprisonment following revocation of

the previous term of supervised release. Mr. Moore’s counsel acknowledges this

argument was not raised before the district court and is “foreclosed” by the

Supreme Court’s decision in Johnson v. United States, 529 U.S. 694 (2000), but

explains Mr. Moore specifically requested he present the argument for review on

appeal.



      As counsel points out, Mr. Moore’s argument is precluded as a matter of

law. In Johnson, the Supreme Court concluded that, even prior to the addition of

subsection (h) to § 3583, the statute gave district courts “authority to order terms

of supervised release following reimprisonment.” See 529 U.S. at 713. For this

reason, the district court did not err in imposing a term of supervised release

together with a term of imprisonment following revocation of Mr. Moore’s

original supervised release.



      Additionally, Mr. Moore contends on appeal the district court imposed an

                                          -5-
unreasonable sentence by failing to adequately explain his sentence. Specifically,

he contends the district court failed to consider the Guidelines Chapter Seven

policy statements or the 18 U.S.C. § 3553(a) factors and that the record does not

otherwise disclose whether his sentence was clearly reasonable and justified.



      “In Gall, the Supreme Court identified ‘failing to consider the § 3553(a)

factors’ and ‘failing to adequately explain the chosen sentence’ as forms of

procedural error.” United States v. Smart, 518 F.3d 800, 803 (10 th Cir. 2008)

(quoting Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007)). In

reviewing a sentence imposed after revocation of supervised release, we review

the district court’s findings of fact for clear error and its legal conclusions de

novo. See United States v. Kelley, 359 F.3d 1302, 1304 (10 th Cir. 2004); see also

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).

However, when a defendant fails to raise a contemporaneous objection to the

district court’s allegedly inadequate explanation of the sentence imposed, we

review the district court’s determination only for plain error. See United States v.

Ruiz-Terrazas, 477 F.3d 1196, 1199 (10 th Cir. 2007). “Plain error occurs when

there is (i) error, (ii) that is plain, which (iii) affects the defendant’s substantial

rights, and which (iv) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (citation omitted).




                                           -6-
      Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583, when

a person violates the conditions of supervised release, the district court may

modify the conditions of release or revoke the term of supervised release and

impose prison time. See 18 U.S.C. § 3583(e)(2)-(3); Fed. R. Crim. P. 32.1;

Kelley, 359 F.3d at 1304-05. As previously noted, under § 3582(h), “[w]hen a

term of supervised release is revoked and the defendant is required to serve a term

of imprisonment,” courts are expressly permitted to impose “a term of supervised

release after imprisonment,” and this principle implicitly applied even prior to the

enactment of subsection (h). See Johnson, 529 U.S. at 713.



      In imposing a sentence following revocation of supervised release, the

district court is required to consider both the Guidelines Chapter Seven policy

statements as well as the factors provided in 18 U.S.C. § 3553(a). United States

v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). The Chapter Seven policy

statements apply to violations of probation and supervised release and include

applicable Guidelines ranges for sentences following revocation of supervised

release. See U.S.S.G. Ch. 7 and § 7B1.4, p.s. The 18 U.S.C. § 3553(a)

sentencing factors include:

      The nature and circumstances of the offense, the history and
      characteristics of the defendant; the need for the sentence imposed to
      afford adequate deterrence, protect the public, and provide the
      defendant with needed educational or vocational training, medical
      care or other correctional treatment in the most effective manner;

                                         -7-
      pertinent guidelines; pertinent policy statements; the need to avoid
      unwanted sentence disparities; and the need to provide restitution.

Cordova, 461 F.3d at 1188-89 (quoting United States v. Contreras-Martinez, 409

F.3d 1236, 1242 n.3 (10th Cir. 2005)).



      While the instant case involves a sentence following revocation of

supervised release, we take instruction from recent cases articulating the

principles applicable to a district court’s alleged error in failing to consider the

§ 3553(a) factors or explain the chosen sentence during the original sentencing.

The Supreme Court has “made clear that a district judge is not required to give an

exhaustive list of reasons” for the sentence imposed. United States v. Tindall,

519 F.3d 1057, 1065 (10 th Cir. 2008). However, a district court must provide

some basis for us to conclude it “has considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 127 S. Ct. 2456, 2468 (2007). In turn, unless a party

contests the Guidelines sentence generally under § 3553(a), the district court

normally does not need to give a lengthy explanation. See id. Additionally, when

a sentence falls within the Guidelines range, we have said § 3553(c) requires the

court to provide only a general statement in explaining the imposition of a

sentence. See Ruiz-Terrazas, 477 F.3d at 1199. If the sentence is within the

correctly-calculated Guidelines range, the sentence is presumptively reasonable,


                                           -8-
unless the defendant “rebut[s] this presumption by demonstrating that the

sentence is unreasonable in light of the other sentencing factors laid out in

§ 3553(a).” Kristl, 437 F.3d at 1054. Even in instances where a sentence is

imposed in excess of that recommended by the Chapter Seven policy statements,

we have determined it will be upheld “if it can be determined from the record to

have been reasoned and reasonable.” United States v. Rodriguez-Quintanilla, 442

F.3d 1254, 1258 (10 th Cir. 2006) (quotation marks and citation omitted).



      In this case, Mr. Moore made no prior argument concerning the calculation

of the advisory Guidelines range, including application of the Chapter Seven

policy statements. Accordingly, the district court did not specifically discuss the

policy statements on which it relied, but generally stated that it had considered

the applicable advisory Guidelines in imposing Mr. Moore’s sentence. In absence

of an objection relating to the application of Chapter Seven of the Guidelines, the

district court was not required to provide a lengthy explanation as to its reliance

on those Guidelines.



      In addition, while Mr. Moore did not specifically object to the calculation

of the Guidelines range, he did argue for a below-Guidelines sentence at the

revocation hearing based on the nature and circumstances of the offenses and his

history and characteristics, noting he: (1) only tested positive for cocaine once,

                                         -9-
shortly after his release from prison; (2) went to aftercare with no further drug

usage violations; (3) committed only petty theft; (4) wanted to get back to work

and know his daughter; (5) associated with the wrong crowd; and (6) was tired of

being in prison. The government responded by pointing to Mr. Moore’s

substantial drug and alcohol problem; his four or five significant brushes with the

law while on supervised release, which included theft and assault; his association

with the wrong crowd; and his failure to make the right choices. Clearly, these

are the specific factors the parties believed were relevant for presentation to the

district court and which it explicitly stated it had considered. Thus, when the

district court imposed a sentence within the Guidelines range, it is clear it

rejected Mr. Moore’s reasons for imposing a three-month, below-Guidelines-

range sentence and based its decision for a Guidelines-range sentence on the

government’s arguments and Mr. Moore’s history of recidivism and his criminal

conduct while on supervised release, as evidenced by the district court’s repeated

reference to his criminal history.



      While a more comprehensive explanation might have aided this court in

concluding whether a reasoned basis existed for the district court’s twelve-month

sentence, it imposed a sentence within the recommended Guidelines range, which

requires only a general explanation of the reason for the sentence imposed. Even

if we determined a more comprehensive explanation was required, we can find no

                                         -10-
procedural error. This is because Mr. Moore cannot satisfy either the third or

fourth prong of the plain error analysis. To meet the third prong, he must

demonstrate his substantial rights were affected, which requires a showing the

result of the sentencing proceeding would have been different but for the asserted

error. See United States v. Romero, 491 F.3d 1173, 1179 (10 th Cir.), cert. denied,

128 S. Ct. 319 (2007). Nothing in the record or Mr. Moore’s argument indicates

the district court would have imposed a different sentence had it provided further

or more explicit reasoning for the sentence imposed. See id.



      Alternatively, Mr. Moore has failed to establish the fourth prong of the

plain error analysis, which requires a showing his twelve-month sentence

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

proceedings. In order to make this showing, he must demonstrate the district

court’s limited explanation of his sentence was “particularly egregious” and a

failure to correct it would result in a “miscarriage of justice.” See United States

v. Gonzalez-Huerta, 403 F.3d 727, 736 (10 th Cir. 2005) (en banc). Here, Mr.

Moore received a sentence within the Guidelines range and the record is devoid of

any evidence sufficient to support a lower sentence. Therefore, Mr. Moore has

failed to make a showing his sentence is particularly egregious or that a

miscarriage of justice occurred.




                                         -11-
                               III. Conclusion

      For these reasons, we AFFIRM Mr. Moore’s sentence of twelve months

imprisonment and twenty-four months supervised release.



                                    Entered by the Court:

                                    WADE BRORBY
                                    United States Circuit Judge




                                     -12-
