                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 13, 2014
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                          No. 13-3185
                                                  (D.C. No. 6:04-CR-10138-MLB-1)
 JERONIMO CEBALLOS,                                           (D. Kan.)

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       After examining the briefs and the appellate record, this panel has determined

unanimously to honor 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). This case is therefore ordered

submitted without oral argument.

       In this appeal, Defendant Jeronimo Ceballos challenges the sentence imposed upon

revocation of his supervised release. In 2004, Defendant pled guilty to distributing

methamphetamine and was sentenced to 108 months of imprisonment and four years of

supervised release. He commenced his four-year term of supervision on October 31,


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
2011. Fourteen months later, on December 31, 2012, Defendant drank alcohol and then

drove his vehicle to his girlfriend’s residence, where he “physically assaulted her,

punching her multiple times.” (Appellant’s App. at 15.) Defendant appeared with

counsel before the local municipal court and was found guilty on charges of domestic

battery. The municipal court sentenced him to two days in jail, three days at a work

release center, and twenty-five days of home confinement. Defendant’s federal probation

officer then petitioned the district court to revoke Defendant’s term of supervision based

on his domestic violence conviction. The district court held a hearing on the petition, at

which Defendant admitted to violating the conditions of his release by committing the

crime of domestic battery.

       The district court ultimately decided to revoke Defendant’s supervision and send

him back to prison for a period of thirty-months. While the advisory Guidelines

recommended a sentence of five to eleven months’ imprisonment for the violation, the

district court concluded the sentencing factors described in 18 U.S.C. § 3553(a) and in

Chapter 7 of the Guidelines weighed in favor of a significantly longer term of

imprisonment. In reaching this conclusion, the district court first explained the crime of

conviction was a serious offense for which Defendant received a low end of the

Guidelines sentence. The court then concluded that Defendant “hasn’t learned anything

as a result of his involvement with the judicial system, either the municipal system or the

federal system.” (Appellant’s App. at 27.) The court further stated: “[A]s reflected in

the violation report, he has four convictions for domestic battery, which translates to me

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as a coward who beats up women.” (Id.) The court explained that “beating up your

girlfriend” is a serious offense, even though it was “apparently . . . considered a fairly

minimal offense over in municipal court,” (id. at 28), and the district court suggested the

local municipal court would probably give only a probationary sentence even to a Nazi

war criminal. The court concluded the only way to deter Defendant from further criminal

conduct was to imprison him, and the court reasoned that Defendant’s pattern of behavior

indicated that more lenient prison sentences had not provided adequate deterrence. The

court also stated that a lengthy sentence would help protect “[t]he public, particularly the

women that this man likes to prey upon.” (Id. at 29). The court then stated it would

impose a thirty-month sentence, and it asked whether the parties had any procedural or

substantive comments to make concerning the court’s sentencing decision. Defense

counsel stated he believed the court had clearly considered the appropriate factors in

announcing its sentencing decision, even though counsel hoped the court would reach a

different conclusion after consideration.

       On appeal, Defendant does not challenge the revocation of his supervised release.

Rather, he only challenges the district court’s sentencing decision. We review the district

court’s sentencing decision in a revocation case under the same reasonableness standard

that applies to other sentencing decisions. United States v. Steele, 603 F.3d 803, 807

(10th Cir. 2010). Thus, “[o]ur appellate review for reasonableness includes both a

procedural component, encompassing the method by which a sentence was calculated, as

well as a substantive component, which relates to the length of the resulting sentence.”

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Id. at 807-08 (internal quotation marks omitted). “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.” Id. at 807 (internal quotation

marks and brackets omitted).

       Defendant contends on appeal that the district court’s remarks “were excessive

under the circumstances.” (Appellant’s Opening Br. at 13.) “The reference to a Nazi war

criminal; the calling the Defendant a coward; and stating the Defendant preys on women

were not rational criteria to decide the sentence of defendant.” (Id.) Defendant also

contends his sentence was improperly based on the district court’s disapproval of the way

the local municipal court handled its cases and on the district court’s apparent belief that

Defendant would not be helped by the programs he had started attending. These

arguments all appear to raise challenges to the procedural reasonableness of the sentence:

although Defendant’s arguments are not entirely clear, he appears to be asserting that the

district court based its sentence on improper factors. See United States v. Pinson, 542

F.3d 822, 835-36 (10th Cir. 2008) (“While the weight the district court places on certain

factors is reviewed for substantive unreasonableness, use of an improper factor is

reviewed for procedural unreasonableness.”) However, Defendant did not raise any

challenges to the district court’s consideration of these factors in the sentencing hearing,

and any such argument is accordingly reviewable on appeal only for plain error. We are

not persuaded the district court plainly erred by expressing its opinions on the serious

nature of domestic battery offenses, the local municipal court’s apparent leniency in

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punishing such offenses, and what Defendant’s conduct suggested about his character and

potential for rehabilitation. See id. at 836 (noting that while “[t]here are likely some

boundaries on what factors sentencing courts can permissibly consider at sentencing,”

such as the defendant’s race, “aside from these few exceptions, we have repeatedly stated

that no limitation shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a court of the United

States may receive and consider for the purpose of imposing an appropriate sentence”

(internal quotation marks omitted)).

       Defendant also challenges the substantive reasonableness of his sentence, arguing

that the circumstances of this case did not warrant a thirty-month sentence when the

Guidelines only recommended a term of five to eleven months. He argues the district

court placed too much weight on its opinion that the local municipal court was overly

lenient in its penalties for domestic battery offenses, and he contends a violation based on

a single misdemeanor conviction does not warrant the lengthy sentence imposed here.

Defendant also argues there were other factors weighing in favor of a lower sentence,

such as his participation in some anger management and Alcoholics Anonymous classes

and the fact that this was his first supervised release violation. Defendant then contends

the district court abused its discretion by varying upward to impose a thirty-month

sentence.

       We review the substantive reasonableness of Defendant’s thirty-month sentence

under an abuse of discretion standard, “afford[ing] substantial deference to the district

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court.” United States v. Martinez, 610 F.3d 1216, 1227 (10th Cir. 2010) (internal

quotation marks and brackets omitted). “Because substantive reasonableness

contemplates a range, not a point, in this arena we recognize a range of rationally

available choices that the facts and law at issue can fairly support. Even if we might

reasonably conclude that a different sentence was also appropriate, that is not a sufficient

basis for reversal.” Id. (internal quotation marks and citations omitted). “We reverse

only when the district court renders a judgment that is arbitrary, capricious, whimsical or

manifestly unreasonable.” Id.

       Under this deferential standard, we affirm the district court’s sentencing decision.

While we might reasonably conclude a lower sentence would also have been appropriate,

we are not convinced the district court’s decision to vary upward in this case fell outside

“the range of rationally available choices” supported by the facts and the law in this case.

A district court may permissibly vary upward from the advisory Guidelines range based

on the seriousness and persistence of a defendant’s offenses. In United States v. Steele,

603 F.3d 803, 809 (10th Cir. 2010) we upheld a substantial upward variance where the

district court’s finding of a violation was based on the defendant’s repeated positive drug

tests for marijuana. Explaining that possession of marijuana is a federal and state crime,

“not [a] mere technical violation[,]” we concluded that an upward variance was

reasonable based on “[t]he seriousness as well as the persistence” of the defendant’s

conduct. Id. The facts of this case likewise involve serious conduct—a violent offense in

which Defendant physically assaulted his girlfriend by punching her multiple times. Far

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from a “mere technical violation” or victimless offense, this was a serious violation of

criminal law, even if the municipal court chose to prosecute it only as a misdemeanor.

See 42 U.S.C. § 3796hh(a) (describing the purpose of a statute intended “to encourage . . .

State and local courts . . . to treat domestic violence, dating violence, sexual assault, and

stalking as serious violations of criminal law”). Moreover, the fact that Defendant

returned to the same type of crime he had been convicted of on three occasions prior to

his incarceration in the federal case “speaks to the likelihood of future recidivism,”

United States v. Franklin-El, 554 F.3d 903, 913 (10th Cir. 2009). See United States v.

Mayes, 332 F.3d 34, 38 (1st Cir. 2003) (citing another First Circuit case which “not[ed]

that recidivism is more likely where defendant repeatedly committed the same type of

crime as the offense of conviction”); see also United States v. Simtob, 485 F.3d 1058,

1063 (9th Cir. 2007) (noting that “the district court’s trust in the violator’s ability to

coexist in society peacefully” is “broken to a greater degree” when a defendant returns to

the same type of criminal conduct following his release). Based on all of the facts in this

case, and under our deferential standard of review, we cannot say that Defendant’s thirty-

month sentence in this case fell outside of the “range of rationally available choices” for

sentencing, Martinez, 610 F.3d at 1227.




                                              -7-
We accordingly AFFIRM.

                               Entered for the Court



                               Monroe G. McKay
                               Circuit Judge




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