                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           APR 22 2003

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 02-3319
 v.                                          (D.C. No. 02-CM-10022-01-MLB)
                                                        (D. Kansas)
 ROBERT REED, JR.,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      Robert Reed appeals the sentence he received for violation of the

conditions of his supervised release. He maintains the district court improperly

considered his educational needs in imposing a two year prison term. We affirm.

      Mr. Reed was originally sentenced to forty-four months in federal prison to

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
be followed by three years of supervised release for aiding and abetting in the

transportation of stolen firearms and for felon in possession of firearms. While

serving his term of supervised release, Mr. Reed violated certain conditions of his

release. At the revocation hearing in the district court, he admitted all but one of

the violations alleged. The government requested a sentence of ten months

without any further supervised release. The defendant requested a sentence of

eight months.

      During the court’s colloquy with Mr. Reed, the court learned that Mr. Reed

was having difficulties staying employed because of his poor educational

background. Mr. Reed had been on his own since he was thirteen, he did not

learn to count until he was fourteen, and he can barely read or write. After

discussing the need for educational opportunities and the unavailability of such

opportunities in the county jail system, the court stated:

      Well, I’m going to do something here that you may not like initially
      but that may prove out for you in the end because if I give you an
      eight month sentence, you’ll spend it in a jail someplace basically
      and you won’t get any benefit other than just being locked up. They
      don’t give any educational opportunities to people in county jails that
      I’m aware of. It’s pretty apparent to me that this is your last chance
      to try to get some education, some just basic educational
      opportunities so that you can work because it seems to me from
      reading your presentence report and reading kind of between the
      lines here of these violations, the violations themselves are not that
      serious in the sense that they don’t constitute in and of themselves
      crimes. Do you see what I’m saying?



                                          -2-
Rec., vol. II, at 10-11. 1 The court then sentenced Mr. Reed to twenty-four months

in federal prison with the recommendation that he be given all possible

educational opportunities. Id. at 11-12. Mr. Reed did not object to this sentence.

      Because Mr. Reed did not object, our review is for plain error only. See

United States v. Tisdale, 248 F.3d 964, 975 (10th Cir. 2001) (failure to lodge

specific objection to district court’s interpretation or application of sentencing

guidelines precludes appellate review, except for plain error). To meet this

standard, an error must be obvious and must “seriously affect[] the fairness,

integrity, or public reputation of judicial proceedings.” Jones v. United States,

527 U.S. 373, 389 (1999).

      We have previously held that we will not reverse a sentence imposed upon

revocation of supervised release “if it can be determined from the record to have

been reasoned and reasonable.” United States v. Lee, 957 F.2d 770, 774 (10th

Cir. 1992). Revocation proceedings are governed by 18 U.S.C. § 3583(e), which

directs the court to consider factors set forth in various subsections of 18 U.S.C. §

3553(a) before determining an appropriate course of action with regard to a

particular defendant. Section 3553(a)(2)(D) requires the court to consider “the

need for the sentence imposed . . . to provide the defendant with needed


      1
        We admonish both defense and government counsel for violating 10th Cir.
R. 28.2(A)(2) and 28.2(B) by failing to attach to their briefs a copy of the district
court’s sentencing decision from which this appeal was taken.

                                         -3-
educational or vocational training . . . .” The court is not required to make

specific findings with respect to each of the factors for consideration, but only to

state reasons for its action. See Lee, 957 F.2d at 774-75. The district court amply

explained its sentencing decision in this case and properly considered the relevant

factors from § 3553(a).

      Mr. Reed contends that 18 U.S.C. § 3582(a) and 28 U.S.C. § 994(k)

prohibit the court from promoting education and rehabilitation as a factor in

determining the length of a sentence after revocation of supervised release. The

only authority Mr. Reed submits for his argument is a dissent from a Second

Circuit opinion. United States v. Anderson, 15 F.3d 278 (2d Cir. 1994) (Kearse,

J., dissenting) (suggesting medical care may not be considered in imposing

sentence for violation of supervised release). However, neither the Second

Circuit nor any other circuit has followed the Anderson dissent. See, e.g., United

States v. Pelensky, 129 F.3d 63, 70 (2d Cir. 1997) (following Anderson majority

approach). In fact, the Anderson majority followed our decision in Lee. Citing

from Lee, the court held: “we will affirm the district court’s sentence provided (1)

the district court considered the applicable policy statements; (2) the sentence is

within the statutory maximum; and (3) the sentence is reasonable.” Anderson, 15

F.3d at 284 (citing Lee, 957 F.2d at 774-75). Moreover, the Supreme Court has

interpreted the relevant portions of the Sentencing Reform Act of 1994 as


                                         -4-
follows: “It rejects imprisonment as a means of promoting rehabilitation, 28

U.S.C. § 994(k), and it states that punishment should serve retributive,

educational, deterrent, and incapacitative goals, 18 U.S.C. § 3553(a)(2).”

Mistretta v. United States, 488 U.S. 361, 367 (1989). In light of these authorities,

there is no error, much less plain error, in the district court’s sentence.

      Mr. Reed also raises an issue regarding the length of his sentence, which

was above the range suggested by the Sentencing Commission but did not exceed

the statutory maximum. It is well-established that the guidelines listed in Chapter

7 are advisory, not mandatory. Lee, 957 F.2d at 773. Thus a sentence above the

suggested range is not considered a “departure,” nor is the court required to

defend its decision to impose a sentence outside of the range. United States v.

Burdex, 100 F.3d 882, 885 (10th Cir. 1996). After revocation of supervised

release, the district court is bound only by the statutory maximum. Id. The

statutory maximum sentence that may be imposed on revocation in cases

involving Class C felonies is two years. 18 U.S.C. § 3583(e)(3). The district

court did not err in sentencing Mr. Reed to the statutory maximum.

      Accordingly, we AFFIRM.

                                         ENTERED FOR THE COURT

                                         Stephanie K. Seymour
                                         Circuit Judge



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