                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                             June 27, 2012

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                           Nos. 12-3024 & 12-3025
                                                   (D.C. No. 5:00-CR-40020-JAR-1 &
 v.                                                      2:04-CR-20096-JAR-1)
                                                                (D. Kan.)
 DAVID A. WRIGHT,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN and MATHESON, Circuit Judges.


       David A. Wright appeals from the district court’s revocation of his supervised

release and its imposition of two concurrent terms of 24 months of imprisonment. Mr.

Wright contends that the district court did not make sufficient findings to justify


       *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) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
revocation of his supervised release. Additionally, he argues that his sentence is

procedurally and substantively unreasonable. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm.

                                I.     BACKGROUND

       On April 4, 2001, Mr. Wright pled guilty to two counts: (1) possession with intent

to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C); and (2) possession of a firearm by a person convicted of the misdemeanor

crime of domestic violence, in violation of 18 U.S.C. §§ 922g and 924(a)(2). On July 13,

2001, a federal district court sentenced Mr. Wright to 29 months of imprisonment on each

count, to be served concurrently, and to three years of supervised release.

       In 2004, Mr. Wright completed his 29-month sentence and began his supervised

release. One of the conditions of his supervised release was that he reside in a halfway

house. On July 19, 2004, the federal district court revoked Mr. Wright’s supervised

release because he refused to live in a halfway house. The court sentenced him to 10

months of imprisonment on each of his original convictions, to be served concurrently,

and to 25 months of supervised release.

       On July 21, 2004, Mr. Wright was indicted on one count of being a felon in

possession of a firearm and one count of possessing a firearm after being convicted of

domestic violence. The facts alleged in the indictment related to conduct that occurred

on July 7, 2004—12 days before the court revoked Mr. Wright’s supervised release. On

September 8, 2004, Mr. Wright pled guilty to the two gun charges. The district court
                                             -2-
sentenced him to 87 months of imprisonment on each charge, to run concurrently, and to

three years of supervised release. The court ordered that Mr. Wright serve his 87-month

sentence and his 10-month sentence consecutively.

       Mr. Wright was released from prison on December 15, 2011, and began his

supervised release. On December 22, 2011, the U.S. Probation Office (the “Probation

Office”) alerted the district court that Mr. Wright had failed to comply with three

conditions of his supervised release. Specifically, the Probation Office alleged that Mr.

Wright had (1) failed to report to his probation officer within 72 hours of his release, (2)

unlawfully used a controlled substance, and (3) refused to reside in a halfway house.

Because of these alleged violations, the Probation Office petitioned the district court to

revoke Mr. Wright’s supervised release.

       The Probation Office subsequently prepared a violations report, which described

the factual basis for each of the alleged violations of the terms of Mr. Wright’s supervised

release. The violations report stated that each of Mr. Wright’s alleged violations was a

Grade C violation. Based on the grade of Mr. Wright’s violations and his criminal

history category of VI, the Probation Office recommended that Mr. Wright be sentenced

to 8-14 months of imprisonment, which was the sentencing range recommended in the

U.S. Sentencing Guidelines (the “Guidelines”).

       On January 17, 2012, the district court held a revocation hearing concerning Mr.

Wright. At the beginning of the hearing, the district court summarized the violations

alleged in the Probation Office’s report. Mr. Wright’s counsel informed the court that
                                             -3-
Mr. Wright was “not going to dispute the violations themselves” and that he wanted only

to present “some mitigation information . . . to the [c]ourt.” ROA (Case No. 12-3025),

Vol. 2, at 5-6. Based on Mr. Wright’s “stipulation,” the district court found that Mr.

Wright had violated the terms of his supervised release. Id. at 15.

       Mr. Wright then presented evidence in mitigation of punishment and requested

that the district court give him another chance to comply with the requirements of his

supervised release. The Government opposed Mr. Wright’s request. The Government

noted that Mr. Wright had a history of violating the terms of his supervised release and

argued that Mr. Wright was “just not going to be compliant.” Id. at 13.

       The district court revoked Mr. Wright’s supervised release and sentenced him to

two terms of 24 months of imprisonment, to be served concurrently.1 The court

acknowledged that the Guidelines recommended a sentence of 8-14 months. But after

“consider[ing] the nature and circumstances of [Mr. Wright’s] violations, the

characteristics of Mr. Wright, . . . the sentencing objectives required by the statute, . . .

[and] the advisory . . . Chapter 7 policy statements issued by the Sentencing

Commission,” id. at 16, the court determined that it was appropriate to sentence Mr.

Wright to 24 months of imprisonment, the statutory maximum. In support of its decision,

the court noted that Mr. Wright had been “pretty defiant,” in violating the terms of his


       1
       The district court sentenced Mr. Wright to two terms of imprisonment because
Mr. Wright violated the terms of his supervised release relating to his 2001 convictions
and the terms of his supervised release relating to his 2004 convictions.

                                              -4-
supervised release, that Mr. Wright had “historically failed to comply with his conditions

of supervised release,” and that Mr. Wright was “not amenable to supervision.” Id. at 14-

17. Additionally, the district court stated:

              After 13 years in prison, I think almost anyone would have
              some significant reintegration issues. Mr. Wright certainly
              does. Everything from his addiction to, you know, a place to
              live, and employment. And he needs a lot of support and a lot
              of services. And apparently he was of the opinion that he
              should just be left alone to come back into the community and
              do what he wanted to do and not receive any services and
              certainly not reintegrate back in a structured environment to
              help him begin to—to become employed and do all the things
              he needs to do to live a productive and healthy life.

              So the Court’s going to sentence Mr. Wright to some
              additional time with no supervision to follow. I, frankly,
              don’t want to waste any more of Mr. Wright’s time or the
              [P]robation [O]ffice’s time with another term of supervised
              release. I just don’t think that would be productive for
              anyone.

              [We] [c]an’t make people become productive by taking
              advantage of services and help. There are plenty of people
              that do want that kind of support and help, and I’d much
              rather see the [P]robation [O]ffice spend their time on people
              like that than people that look at it in a negative light, that
              they’re being ordered into a halfway house to have some
              structure and some help of finding work, et cetera.

Id. at 14-15 (emphases added).

    Mr. Wright filed a timely notice of appeal challenging the district court’s order.

                                    II. DISCUSSION

       On appeal, Mr. Wright contends that the district court did not make sufficient

findings to justify its decision to revoke his supervised release. Additionally, he argues
                                               -5-
that his sentence is procedurally and substantively unreasonable. We address Mr.

Wright’s arguments in turn.

        A. Revocation of Supervised Release

        When a defendant violates a condition of supervised release, a district court may

revoke the term of supervised release and impose imprisonment. See 18 U.S.C.

§ 3583(e)(3). “The procedures that apply at a revocation hearing are less formal than

those that apply at a plea hearing.” United States v. Fay, 547 F.3d 1231, 1234 (10th Cir.

2008). Rule 32.1(b)(2) of the Federal Rules of Criminal Procedure states that a defendant

is entitled to the following rights at a revocation hearing:

               (A) written notice of the alleged violation; (B) disclosure of
               the evidence against the person; (C) an opportunity to appear,
               present evidence, and question any adverse witness unless the
               court determines that the interest of justice does not require
               the witness to appear; (D) notice of the person’s right to retain
               counsel or to request that counsel be appointed if the person
               cannot obtain counsel; and (E) an opportunity to make a
               statement and present any information in mitigation.

Under Rule 32.1(b)(2), the defendant also “has the implicit right to admit his guilt or to

contest the alleged violation of the terms of his supervised release.” Fay, 547 F.3d at

1234.

        Mr. Wright contends that the district court violated Rule 32.1(b)(2) because it

“made no findings” concerning whether the violation alleged in the Probation Office’s




                                              -6-
violations report were substantiated before it revoked his supervised release.2 Aplt. Br. at

7. Mr. Wright acknowledges that he did not challenge the Probation Office’s allegations,

but he argues that he “did not clearly admit to violat[ing]” the conditions of his

supervised release. Id. at 16.

       Mr. Wright concedes that he did not raise this issue in the district court. We

therefore review his argument under the plain error standard of review. See Fay, 547

F.3d at 1234; see also United States v. McBride, 633 F.3d 1229, 1234 (10th Cir. 2011).

Under the plain error standard, we “will reverse the judgment below only if there is

(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006) (quotations omitted).

       We need not address whether the district court erred, or whether its alleged error

was plain, because Mr. Wright’s argument fails under the third element of the plain error

test. To satisfy the third element, Mr. Wright must show that the alleged error affected

his substantial rights. Id. “For an error to have affected substantial rights, the error must

have been prejudicial: It must have affected the outcome of the district court


       2
        In his brief, Mr. Wright frames this issue as relating to the procedural
reasonableness of his sentence. But some of his arguments suggest that he is challenging
not only his sentence but also the district court’s decision to revoke his supervised
release. For clarity, we have addressed his argument as a challenge to the district court’s
decision to revoke his supervised release. We note, however, that our analysis of this
issue would be the same if we were to consider it as a challenge to procedural
reasonableness.

                                              -7-
proceedings.” United States v. Romero, 491 F.3d 1173, 1179 (10th Cir. 2007)

(quotations omitted). To satisfy this burden, Mr. Wright must demonstrate “that the

result after remand (when the [G]overnment will have an opportunity to put on evidence

regarding [his] compliance with the rules governing [his supervised release]) would

probably be different.” McBride, 633 F.3d at 1234.

       Mr. Wright “has not even argued that the [G]overnment could not prove that he

failed to comply with the terms of his [supervised release].” Id. Thus, Mr. Wright has

failed to demonstrate that the district court’s alleged error violated his substantial rights.

See id.; see also Fay, 547 F.3d at 1235. We therefore reject Mr. Wright’s argument that

the district court failed to make adequate findings to justify revocation of his supervised

release.

       B. The Reasonableness of Mr. Wright’s Sentence

       Before determining the sentence to be imposed after revocation of supervised

release, a district court must consider both the policy statements contained in Chapter 7

of the Guidelines and the factors provided in 18 U.S.C. § 3553(a). United States v.

Steele, 603 F.3d 803, 808 (10th Cir. 2010). The § 3553(a) 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; pertinent guidelines; pertinent policy
              statements; the need to avoid unwanted sentence disparities;
              and the need to provide restitution.

                                              -8-
United States v. Cordova, 461 F.3d 1184, 1188-89 (10th Cir. 2006) (quotations omitted).

       In explaining the sentence imposed, the court “is not required to consider

individually each factor listed in § 3553(a), nor is it required to recite any magic words to

show us that it fulfilled its responsibility to be mindful of the factors that Congress has

instructed it to consider.” Id. at 1189 (quotations omitted). Additionally, although the

court must consider the Chapter 7 policy statements, which “recommend a range of

imprisonment upon revocation of supervised release,” the recommendation is “advisory

rather than mandatory in nature.” United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir.

2004) (quotations 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.” Steele, 603 F.3d at 807 (quotations omitted). We have explained that “[t]his

is the same analysis as the reasonableness standard of review under United States v.

Booker, 543 U.S. 220 (2005).” Id. at 807. Our review “for reasonableness includes both

a procedural component, . . . as well as a substantive component.” Id. at 807-08

(quotations omitted); see also McBride, 633 F.3d at 1232 (“Under our current

nomenclature, a ‘reasoned’ sentence is one that is ‘procedurally reasonable’; and a

‘reasonable’ sentence is one that is ‘substantively reasonable.’”).

       Mr. Wright argues that his sentence is procedurally and substantively

unreasonable. We first address the procedural reasonableness of Mr. Wright’s sentence

and then consider substantive reasonableness.
                                             -9-
       1. Procedural Reasonableness

       Procedural reasonableness “focuses on the manner in which the sentence was

calculated.” United States v. Masek, 588 F.3d 1283, 1290 (10th Cir. 2009). “In

reviewing a criminal defendant’s sentence for procedural reasonableness, we determine

whether the district court committed any error in calculating or explaining the sentence.”

United States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010) (quotations omitted).

We must “ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence—

including an explanation for any deviation from the Guidelines range.” Gall v. United

States, 552 U.S. 38, 51 (2007)

       We generally review the procedural reasonableness of a defendant’s “sentence

under the familiar abuse-of-discretion standard of review.” United States v. Halliday,

665 F.3d 1219, 1222 (10th Cir. 2011) (quotations omitted); see also Gall, 552 U.S. at 46.

But when a defendant fails to preserve a procedural challenge before the district court, we

review only for plain error. See Romero, 491 F.3d at 1178. As noted above, to

demonstrate plain error, a defendant must establish that “there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Teague, 443 F.3d at 1314

(quotations omitted).
                                             -10-
       Mr. Wright contends that his “sentence is procedurally unreasonable because the

[district] [c]ourt failed to adequately explain its upward departure from the . . .

[G]uidelines range to the maximum statutory sentence.” Aplt. Br. at 12. Mr. Wright

acknowledges that the district court stated that it had considered “the nature and

circumstances of [his] violations, [his personal] characteristics, . . . the sentencing

objectives required by [the] statute[,] . . . [and] the advisory nonbinding Chapter 7 policy

statements issued by the Sentencing Commission.” Id. at 12-13 (quotations omitted). He

argues, however, that the district court’s primary reason for its upward departure—“that

the resources of the [P]robation [O]ffice] [would be] wasted on [him]—is not within the

sentencing factors required under 18 U.S.C. § 3553(a)” and that the court’s reliance on

this rationale rendered his sentence procedurally unreasonable. Id. at 8.

       Mr. Wright concedes that he did not preserve this argument for our review, and we

therefore review his claim under the plain error standard. See Romero, 491 F.3d at 1177.

Mr. Wright has failed to demonstrate that the district court erred by considering whether

it would “waste” the Probation Office’s resources to allow him to remain on supervised

release. Indeed, in his brief, Mr. Wright acknowledges that we rejected a similar

argument in United States v. Tedford, 405 F.3d 1159 (10th Cir. 2005).3


       3
       Mr. Wright argues that Tedford was “wrongly decided.” Aplt. Br. at 13.
However, because “we are bound by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the Supreme Court,” United States
v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000) (quotations omitted), we decline Mr.
Wright’s invitation to reconsider the correctness of our decision in Tedford.

                                             -11-
       In Tedford, the defendant’s supervised release was revoked after he violated

several of the conditions of his release. “Based on a combination of [the] [d]efendant’s

criminal history and the nature of the violations, the recommended sentence pursuant to

the . . . Guidelines was between five and eleven months of incarceration.” Id. at 1160.

“The district court imposed a sentence of forty-eight months.” Id. In so doing, the

district court considered the Chapter 7 policy statements, the nature and circumstances of

the defendant’s conduct, and the fact that “it would . . . be a waste of the limited

resources of the probation office to have to continue supervision over [the] defendant.”

Id. (quotations omitted).

       On appeal, the defendant argued that “the district court’s consideration of the

Probation Office’s resources was an improper factor to rely on in imposing the sentence

because it [was] not an enumerated factor in the Guidelines.” Id. at 1161. We rejected

the defendant’s argument, stating:

              The Sentencing Guidelines set forth factors that must be
              considered, but that list is not all-inclusive. In addition, when
              read in context, the factor to which [the] [d]efendant objects,
              the resources of the Probation Office, does not reflect an
              impermissible analysis of federal penal resource
              allocation. . . . The district court merely recognized the
              futility of continued supervision, a consideration implicit in
              the Congressional grant of authority to revoke one’s
              supervised release.

Id. (emphasis added) (citation omitted).

       Like the court in Tedford, the district court properly considered the Chapter 7

policy statements, the nature and circumstances of Mr. Wright’s conduct, and the
                                             -12-
§ 3553(a) factors, which implicitly permit a court to consider the futility of continued

supervision. See id. Mr. Wright has failed to demonstrate any error in this analysis. We

therefore reject Mr. Wright’s argument that his sentence is procedurally unreasonable.

       2. Substantive Reasonableness

       “Substantive reasonableness addresses whether the length of [a] sentence is

reasonable given all the circumstances of the case in light of the factors set forth in 18

U.S.C. § 3553(a).” United States v. Damato, 672 F.3d 832, 838 (10th Cir. 2012)

(quotations omitted). When a defendant challenges his sentence as substantively

unreasonable, we review for an abuse of discretion “and give[] substantial deference to

[the] district court[].” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009)

(quotations omitted); see also Gall, 552 U.S. at 46. “A district court abuses its discretion

when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly

unreasonable.” Steele, 603 F.3d at 809 (quotations omitted). “This standard applies

without regard to whether the district court imposes a sentence within or outside the

advisory Guidelines range.” Id.

       Mr. Wright notes that “[t]he purpose of a supervised release sentence is to provide

enough supervision to prevent recidivism.” Aplt. Br. at 11. He contends that his

sentence conflicts with this purpose because his violations of supervised release were

“relatively minor” and because he had only been on supervised release for a short time

when the Government petitioned the court to terminate his supervised release. Id. at 10.


                                             -13-
He argues that this conflict renders his sentence substantively unreasonable. We

disagree.

       The Guidelines state that “at revocation the court should sanction primarily the

defendant’s breach of trust, while taking into account, to a limited degree, the seriousness

of the underlying violation and the criminal history of the violator.” U.S.S.G. Ch. 7,

introductory cmt., A(3)(b). In considering the extent of Mr. Wright’s breach of trust, the

district court appropriately focused on Mr. Wright’s disregard of several of the conditions

of his supervised release. The court also noted that “Mr. Wright has historically failed to

comply with his conditions of supervised release and [that he] is not amenable to

supervision.” ROA (Case No. 12-3025), Vol. 2, at 16-17.

       Ultimately, Mr. Wright’s arguments are an invitation to reweigh the evidence, the

§ 3553(a) factors, and the district court’s “ultimate assessment of the balance between

them.” United States v. Regan, 637 F.3d 1348, 1354-55 (10th Cir. 2010) (quotations

omitted). We decline to do so. Mr. Wright has failed to demonstrate, based on the

totality of the circumstances, that the district court abused its discretion in sentencing him

in excess of the range recommended by the Guidelines. And having reviewed the record,

we cannot say that the district court’s decision to exceed the recommended sentencing

range “exceeded the bounds of permissible choice, given the facts and the applicable law

in the case at hand.” Id. at 1352 (quotations omitted). We therefore reject Mr. Wright’s

claim that his sentence is substantively unreasonable.


                                             -14-
                                III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s decisions to revoke Mr.

Wright’s supervised release and to sentence him to two concurrent terms of 24 months of

imprisonment. We grant the Government’s motion to supplement the record on appeal.

                                         ENTERED FOR THE COURT



                                         Scott M. Matheson, Jr.
                                         Circuit Judge




                                          -15-
