                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                 October 19, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 07-5013
          v.                                            (N .D. of Okla.)
 JEFFR EY D EA N FIN N EY ,                      (D.C. No. CR-06-134-HDC)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Jeffrey Dean Finney appeals an order revoking his term of supervised

release and sentencing him to 120 months in prison. Finney was on supervised

release after he served time for convictions as a felon in possession of a firearm,

among num erous other offenses. 1 Finney stipulated to the conduct constituting a

      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        The district court revoked Finney’s supervised release on a number of
convictions in three different cases for which he was sentenced to a total of 180
                                                                      (continued...)
violation of his supervised release, including (1) failure to complete two

substance abuse treatment programs, (2) repeated alcohol and drug abuse, (3)

gambling, and (4) commission of three armed robberies. The facts behind this

stipulation indicate Finney was terminated from two treatment programs for

failure to abstain from drug and alcohol use and refusal to cooperate w ith

program staff. After a revocation hearing was initially held on the substance

abuse violations, Finney was arrested for three armed robberies of restaurants in

Tulsa during a span of three hours. All of this took place within a year of

Finney’s release from prison.

      Pursuant to policy statements in the United States Sentencing Guidelines

(“USSG ”), the suggested sentencing range for revocation of supervised release for

a defendant with Finney’s criminal history and type of violation is 51–63

months. 2 This is the highest range provided for by USSG § 7B1.4. Finney argues


      1
        (...continued)
months in prison and five years supervised release on June 29, 1993. He began
his term of supervised release on January 23, 2006. He appeals only the
revocation of supervised release for the two counts of felon in possession of a
firearm, for which he received two consecutive 60-month sentences. For
revocation of supervised release on the counts he does not appeal, Finney was
sentenced to 24 months to run concurrently with all other sentences.
      2
         This range was based on a Grade A violation because of the alleged
armed robberies. USSG §§ 7B1.1, 7B1.4. At sentencing, criminal charges w ere
still pending against Finney for those robberies, but for purposes of the revocation
hearing, Finney stipulated to the alleged conduct. During sentencing, the court
stated, “I do know that there is a case pending, there is an allegation [of armed
robbery] pending. I’m not going to deal with that at this time. That’s something
                                                                        (continued...)

                                         -2-
the district court’s departure from the USSG policy statement to impose the 120-

month sentence was unreasonable. 3




      2
        (...continued)
that will be dealt with independently when it’s before the Court at a proper time.”
R. Vol. V at 6–7. Finney argues this statement indicates the district court did not
intend to consider the armed robberies when calculating the sentence for
revocation of supervised release. He argues that the ultimate 120-month sentence
was therefore even more extreme because it departed upward from the 8–14
month range provided for his other G rade C violations. See USSG §§ 7B1.1,
7B1.4.
       W e do not think the court’s statement evinces an intent to ignore the armed
robbery allegations w hen calculating the sentence before it. The court simply
stated that the matter before it concerned only the revocation of supervised
release, and the newly-filed criminal charges would be dealt w ith at a later time.
This does not prevent the court from considering the armed robberies when
formulating a sentence for revocation of supervised release when Finney
stipulated to the alleged conduct for that purpose. In fact, the court was entitled
to consider “the nature of the conduct leading to the revocation . . . in measuring
the extent of the breach of trust” and to “leav[e] the punishment for any new
criminal conduct to the court responsible for imposing the sentence for that
offense.” U SSG. ch.7, pt. A(3)(b), introductory cmt.
      3
          W hether Finney’s sentence actually departed from the suggested range is
debatable. Finney’s supervised release was revoked on multiple counts, and
USSG § 7B1.4 arguably provides appropriate ranges for imprisonment based on
each individual count. If w e consider individually the district court’s two
60-month sentences on each of Finney’s two felon in possession counts, the
district court’s sentences fell within the suggested 51–63 month range. Similarly,
if we consider the district court’s decision to treat Finney’s two counts as subject
to consecutive sentences, the court’s total sentence of 120 months falls within the
range computed by doubling the per-count recommended range of 51–63 months
to arrive at a recommended range of 102–126 months. The district court
nevertheless viewed its sentence as outside the prescribed range, and in any case,
we review the sentence for reasonableness.

                                        -3-
                                    Discussion

      W e will overturn a sentence imposed as a result of a violation of supervised

release only if it is “plainly unreasonable.” United States v. Kelley, 359 F.3d

1302, 1304 (10th Cir. 2004); see also United States v. Rodriguez-Q uintanilla, 442

F.3d 1254, 1257–58 (10th Cir. 2006) (using same standard of review post-

Booker 4 ). A sentence imposed in excess of the recommendations in the USSG

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

been reasoned and reasonable.” Rodriguez-Q uintanilla, 442 F.3d at 1258

(quoting United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004)).

      Congress has directed courts to impose sentences “sufficient, but not

greater than necessary” to (1) reflect the seriousness of the offense, promote

respect for the law , and provide just punishment for the offense; (2) afford

adequate deterrence to criminal conduct; (3) protect the public from further

crimes of the defendant; and (4) provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in the most

effective manner. 18 U.S.C. § 3553(a). A court must consider these factors as

well as the USSG policy statements in imposing a sentence following a revocation

of supervised release. United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir.

2006). W e find the sentence the district court imposed was a reasoned and

reasonable application of these factors and the policy statements.

      4
          United States v. Booker, 543 U.S. 220 (2005).

                                         -4-
      The district court at sentencing expressly acknowledged the USSG policy

statements but concluded,

             This Court has considered the factors that are set forth within
      Title 18 U.S.C., Section 3553(a) and has elected to sentence the
      defendant to the 120 month term which is outside the prescribed
      guideline range. This sentence reflects the need for a just punishment
      for M r. Finney, his use of illegal drugs, his use of alcohol, his problems
      with gambling w hile under supervision, his propensity to commit
      serious crimes while under the influence. Further, it provides a
      deterrent to serious criminal conduct and protects the public against
      future crimes.
             The Court notes that M r. Finney has been given the opportunity
      for treatment at two community based centers and failed to complete the
      programs successfully. This sentence will provide the defendant an
      opportunity to complete the 500 hour residential drug program while
      incarcerated.

R. Vol. V at 8. The district court thus carefully analyzed how the § 3553(a)

factors supported the sentence imposed. This explanation is a reasoned

application of the § 3553(a) factors.

      M oreover, the district court’s sentence was not “plainly unreasonable.”

First, the district court imposed the statutorily-authorized maximum of five years

per violation of supervised release on a class A felony conviction. 18 U.S.C.

§ 3583(e)(3). Second, as the court indicated at the sentencing hearing, the

sentence reflects the § 3553(a) factors. Finally, the pre-sentence report provided

to the court concluded a departure from the policy statement might be warranted

because (1) Finney’s original sentence was the result of a downward departure,

see USSG § 7B1.4 n.4, (2) Finney has a long history of committing crimes w hile



                                          -5-
under the influence of alcohol and other substances, and (3) Finney committed

three armed robberies while on supervised release even after an initial revocation

hearing had been held based on other violations. The district court’s sentence

was a thus a personalized assessment of Finney’s particular history and

circumstances and clearly reflects the legislative policy contained in the § 3553(a)

factors.

      In sum, this record demonstrates the district court’s sentence was both

reasoned and reasonable, given Finney’s background and circumstances. The

sentence accounted for Finney’s total failure to control his substance abuse and

his termination from two treatment programs, his historically-demonstrated

propensity for future violence if he continues to use drugs and alcohol, and his

comm ission of three armed robberies when he knew his supervised release was

already in danger of revocation. These facts dramatically demonstrate Finney’s

unwillingness to comply with conditions of supervised release and the dangers

Finney presents to the public when he is free. In light of all of these facts, the

district court’s sentence was reasonable.

                                     Conclusion

      For the foregoing reasons, the district court’s sentence is AFFIRMED.

                                                      Entered for the Court

                                                      Timothy M . Tymkovich
                                                      Circuit Judge



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