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

                            FOR THE TENTH CIRCUIT                      December 11, 2012

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 12-1040
                                                (D.C. No. 1:11-CR-00190-WJM-1)
LOWELL D. CHATBURN,                                         (D. Colo.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


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




      Lowell D. Chatburn appeals the district court’s imposition of a five-month

prison sentence following revocation of his supervised release. He contends that the

sentence was substantively unreasonable. We exercise jurisdiction pursuant to

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                I.     BACKGROUND

      Mr. Chatburn worked as an attorney in Hawaii until he was disbarred in 2002.

In 2006, he was indicted for bank fraud based on his forging the signatures of three

clients and converting their funds for his personal use in 2001 and 2002. In 2009, he

entered a guilty plea to the bank fraud charge. Pursuant to the applicable United

States Sentencing Guidelines, the advisory sentencing range was 10 to 16 months of

imprisonment plus a term of supervised release. Mr. Chatburn received a downward

variant sentence of three months in prison plus a five-year term of supervised release.

      The special conditions of Mr. Chatburn’s supervised release were designed to

prevent his access to others’ financial records and information. One of the special

conditions required him to “notify the Probation Office of any contemplated

employment and . . . obtain approval from the Probation Office for all employment.”

R. Vol. I at 7. Other special conditions required him to submit written reports and

follow his probation officer’s instructions. Mr. Chatburn moved to Boulder,

Colorado, and began his term of supervised release on August 14, 2009.

      While on supervised release, Mr. Chatburn was employed by Paycheck Loans

in Boulder from August 2009 until September 2010, when the company closed its

office. He reported to his probation officer, Ms. Oppenheimer, that his job duties

involved customer relations and business advertising, and that he did not have access

to any customer information. In fact, he prepared tax returns for customers without

obtaining Ms. Oppenheimer’s approval.



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      On November 30, 2010, Mr. Chatburn registered Rapidtax, Inc. with the

Colorado Secretary of State, but he did not advise Ms. Oppenheimer despite her

instructions to tell her if he registered or established a business. Doing business as

Rapidtax, Inc., Mr. Chatburn began preparing tax returns in February 2011. He did

not obtain Ms. Oppenheimer’s approval for this work. In addition, despite her

direction on March 28, 2011, to cease preparing tax returns, he continued to do so.

      Mr. Chatburn began receiving unemployment benefits in approximately

October 2010. He failed to comply with Ms. Oppenheimer’s instructions to search

for full-time employment and to submit written reports as required by the terms of his

supervised release.

      On July 1, 2011, Ms. Oppenheimer petitioned the district court to revoke his

supervised release. Mr. Chatburn pled guilty to the following five Grade C violations

of his supervised release: (1) failure to notify the probation office about and obtain

approval for registering Rapidtax, Inc. and preparing tax returns under that name,

(2) failure to obtain approval from the probation office for his employment with

Paycheck Loans wherein he prepared tax returns for customers, (3) false statements

to his probation officer about his duties at Paycheck Loans, (4) failure to submit

written reports pertaining to the months of March and April 2011, and (5) failure to

follow the instructions of his probation officer to search for full-time employment

and submit monthly job search forms. A Supervised Release Violation Report

calculated the advisory sentencing range under the Sentencing Commission’s policy

statements to be three to nine months in prison plus a term of supervised release.

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Following a hearing, the district court sentenced Mr. Chatburn to five months in

prison followed by three years of supervised release.1

      Mr. Chatburn appeals, arguing that the sentence was substantively

unreasonable for two reasons. First, he argues that the district court considered the

seriousness of the offense, a sentencing factor not specified as pertinent to revocation

of supervised release. Second, he argues that the district court’s emphasis on a

perceived need to deter criminal conduct and to protect the public from further

crimes was manifestly unreasonable and resulted in a sentence that was

impermissibly harsh.

                                   II.    DISCUSSION

      “In reviewing a sentence imposed after revocation of supervised release, we

review the district court’s factual findings for clear error and its legal conclusions

de novo. We will not reverse a sentence following revocation of supervised release if

the record establishes the sentence is reasoned and reasonable.” United States v.

Handley, 678 F.3d 1185, 1188 (10th Cir. 2012) (citation omitted) (internal quotation

marks omitted).




1
       It appears from the record that Mr. Chatburn has completed the five-month
prison term imposed on revocation of his supervised release and is now serving the
additional three-year term of supervised release. The case is not moot because, if he
were to prevail on his sentencing-length appeal, the district court could provide
effective relief on remand by shortening his term of supervised release. United States
v. Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007).

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   A. Seriousness of the Offense and Procedural Reasonableness

         Pursuant to 18 U.S.C. § 3583(e), “[b]efore deciding whether to revoke a term

of supervised release and determining the sentence imposed after revocation, the

district court must consider the factors set out in 18 U.S.C. § 3553(a)(1), (a)(2)(B),

(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” United States v. McBride,

633 F.3d 1229, 1231 (10th Cir. 2011) (citing 18 U.S.C. § 3583(e)).

         In his first argument, Mr. Chatburn objects that the district court considered

18 U.S.C. § 3553(a)(2)(A)—the seriousness of the underlying offense—a factor not

included in § 3583(e). Therefore, he argues, the district court committed reversible

error.

         Mr. Chatburn has characterized the district court’s consideration of an

improper factor as a substantive-reasonableness issue. We view this alleged error as

a challenge to the procedural reasonableness of the sentence. United States v. Smart,

518 F.3d 800, 803 (10th Cir. 2008) (stating that a form of procedural error is

“consideration by the district court of legally erroneous factors”); see also United

States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012) (evaluating district court’s

consideration of an impermissible sentencing factor as procedural error).

         Because Mr. Chatburn “failed to object on this basis in the district court, plain

error review now applies.” Mendiola, 696 F.3d at 1036. “Our plain error standard is

satisfied when 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. Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir. 2009)

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(internal quotation marks omitted). A defendant is not entitled to relief if he fails to

establish one or more of those elements. See United States v. Romero, 491 F.3d

1173, 1179 (10th Cir. 2007) (holding defendant’s concession that he did not allege

any error that affected his substantial rights defeated claim of plain error).

       Mr. Chatburn has failed to establish that any error was plain. The Tenth

Circuit has not addressed this issue, and there is no controlling circuit or Supreme

Court precedent on point. “If neither the Supreme Court nor the Tenth Circuit has

ruled on the subject, we cannot find plain error if the authority in other circuits is

split.” United States v. Story, 635 F.3d 1241, 1248-49 (10th Cir. 2011) (internal

quotation marks and brackets omitted).

       The circuits are divided on whether consideration of a § 3553(a)(2)(A) factor

is error. Compare United States v. Miller, 634 F.3d 841, 844 (5th Cir.) (holding “that

it is improper for a district court to rely on § 3553(a)(2)(A) for the modification or

revocation of a supervised release term”), cert. denied, 132 S. Ct. 496 (2011); United

States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006) (noting in dicta that § 3583(e)

excludes consideration of the § 3553(a)(2)(A) factors in devising a revocation

sentence); United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006) (“Given that

§ 3553(a)(2)(A) is a factor that Congress deliberately omitted from the list applicable

to revocation sentencing, relying on that factor when imposing a revocation sentence

would be improper.”), with United States v. Young, 634 F.3d 233, 241 (3rd Cir.) (“It

is . . . plain to us that a district court’s consideration of, and explicit reference to, the

§ 3553(a)(2)(A) factors in imposing a sentence for the violation of supervised release

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is not a procedural error that renders the sentence per se unreasonable.”),

cert. denied, 132 S. Ct. 204 (2011); United States v. Lewis, 498 F.3d 393, 399-400

(6th Cir. 2007) (holding “that it does not constitute reversible error to consider

§ 3553(a)(2)(A) when imposing a sentence for violation of supervised release, even

though this factor is not enumerated in § 3583(e)”); United States v. Williams,

443 F.3d 35, 47 (2d Cir. 2006) (noting that § 3583 “does not state that any particular

factor cannot be considered, and [interpreting] § 3583(e) simply as requiring

consideration of the enumerated subsections of § 3553(a), without forbidding

consideration of other pertinent factors”).

       “[A] circuit split is strong evidence that an error is not plain,” Story, 635 F.3d

at 1248, but it “is not dispositive on the question of whether an error is plain,” id. at

1249. Nonetheless, the law is sufficiently unsettled for us to conclude that any error

here was not plain.

       We further conclude that even if error were plain, the district court’s mention

of the seriousness of the offense did not affect Mr. Chatburn’s substantial rights.

“An error only affects substantial rights when it is prejudicial, meaning that there is a

reasonable probability that, but for the error claimed, the result of the proceeding

would have been different.” United States v. Penn, 601 F.3d 1007, 1012 (10th Cir.

2010) (internal quotation marks omitted).

       The district court linked the underlying offense, which involved fraud and

deceit, to Mr. Chatburn’s failure to disclose pertinent information to his probation

officer. This analysis was part of the court’s review of the nature and circumstances

                                           -7-
of the offense, a factor the district court properly considered. See § 3583(e)

(directing district court to consider § 3553(a)(1), which in turn allows consideration

of “the nature and circumstances of the offense”). Nothing indicates that the result of

the proceeding would have been different absent the court’s consideration of the

seriousness of the underlying offense. Accordingly, no plain procedural error

occurred.

    B. Nature of Supervised Release Violations and Substantive Reasonableness

       Mr. Chatburn also contends that his sentence was substantively unreasonable

because his supervised release violations were not criminal and because he had not

committed any crime since his 2001-2002 conduct resulting in the bank fraud charge.

He therefore asserts that the district court improperly based his sentence on the need

to deter criminal conduct and protect the public from further crimes when there was

no criminal conduct on his part, even though § 3583(e) directs the district court to

apply those two sentencing factors. This was, he says, substantively unreasonable

and resulted in a sentence that was impermissibly harsh.

       Mr. Chatburn also points out that his prison sentence for violating supervised

release was longer than the sentence for the underlying conviction.2 He further

argues that during his supervised release, he was employed, met his financial


2
       We note that Mr. Chatburn’s original three-month sentence varied from his
advisory sentence range of 10 to 16 months and that the Guidelines provide: “Where
the original sentence was the result of a downward departure . . . that resulted in a
sentence below the guideline range applicable to the defendant’s underlying conduct,
an upward departure may be warranted.” USSG 7B1.4, Application Note 4.

                                          -8-
obligations, reestablished his relationship with his children, and succeeded in the

court-ordered mental health treatment. His claim is “merely that the sentence is

unreasonably long, [so] we do not require the defendant to object in order to preserve

the issue.” See United States v. Mancera-Perez, 505 F.3d 1054, 1058 (10th Cir.

2007) (internal quotation marks omitted).

      “In assessing what sentence would be reasonable for violation of a condition

of supervised release, the district court has been instructed by Congress to consider

the applicable policy statements issued by the Sentencing Commission.” McBride,

633 F.3d at 1232 (internal quotation marks and ellipsis omitted). “[W]e will defer to

the district court’s judgment so long as it falls within the realm of the[] rationally

available choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).

“[A] revocation-of-supervised-release sentence within the range suggested by the

Commission’s policy statements” is presumed to be reasonable. McBride, 633 F.3d

at 1233. The presumption, however, may be rebutted by demonstrating that the

sentence is unreasonable in light of the applicable sentencing considerations. Id.

      Mr. Chatburn’s sentence is entitled to the presumption of reasonableness. The

recommended sentencing range was three to nine months of imprisonment; he was

sentenced to five months. He has not rebutted the presumption. Rather, he argues

that the district court should have weighed the mitigating evidence more heavily. He

does not dispute that the district court considered the sentence imposed for the

underlying conviction, Mr. Chatburn’s personal circumstances, or his mental-health

treatment. Mr. Chatburn “must do more than show that his preferred sentence was a

                                           -9-
reasonable one. . . . To obtain relief he must show that the actual sentence imposed

was outside this range of reasonableness.” Id. at 1232. He has not made the required

showing to demonstrate that his sentence was substantively unreasonable.

                                III.    CONCLUSION

      The judgment of the district court is AFFIRMED.

                                                 ENTERED FOR THE COURT



                                                 Scott M. Matheson, Jr.
                                                 Circuit Judge




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