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

                                  TENTH CIRCUIT                               March 18, 2011

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

      Plaintiff – Appellee.

v.                                                          No. 10-1078
                                                  (D.C. No. 1:00-CR-00424-LTB-1)
CARL W. RAYMONDE,                                             (D. Colo.)

      Defendant - Appellant.




                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.



      Carl W. Raymonde appeals from the district court’s revocation of his supervised

release. He claims the 24-month sentence of imprisonment imposed for his second

violation of the terms of supervised release is unreasonable. We affirm.†

      *
        Oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.

        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
      †
          Our jurisdiction derives from 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                                 I.      BACKGROUND

       In 2001, Raymonde pled guilty to one count of possession of a firearm by a felon

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced him to

33 months imprisonment1 and imposed a three-year term of supervised release with

special conditions.2 Raymonde’s supervised release commenced on May 17, 2007. Not

five months later, in October, 2007, he began violating its terms by failing to: (1) report

to the probation office as instructed; (2) submit written reports; (3) permit contact by his

probation officer; (4) participate in mental health treatment as directed by his probation

officer; and (5) participate in drug treatment as directed by his probation officer.

       On February 20, 2008, after repeated violations, the government filed a petition to

revoke Raymonde’s supervised release. At the October 23, 2008 hearing on the matter,

Raymonde admitted to all of the violations alleged. The policy provisions of Chapter 7

of the United States Sentencing Guidelines recommended a sentencing range of 8 to 14

months imprisonment. 3 See U.S.S.G § 7B1.4(a). Despite the advisory range, the

probation officer recommended, with the agreement of the parties, that the court decline

       1
         The “original Guideline range was 57 to 71 months, but based upon the motion
of the government [the district court] departed downward to a sentence of 33 months.”
(R. Vol. III at 18.)
       2
         The conditions on release required Raymonde to participate in mental health and
drug abuse treatment programs, submit to drug testing, and abstain from using intoxicants
during treatment. The district court imposed these conditions “to help” Raymonde help
himself. (R. Vol. III at 27.)
       3
         The district court determined “[u]nder the policy statements of advisory
Sentencing Guidelines, the most serious grade of violation charged here is a Grade C
violation . . . [and Raymonde had a] Criminal History Category of VI under these
Guidelines.” (R. Vol. III at 17.)


                                            -2-
to impose a prison sentence and instead re-impose a term of supervised release. The

district court considered the recommendation “counterintuitive,” but nonetheless revoked

and reinstated Raymonde on supervised release to continue until May 16, 2010. (R. Vol.

III at 26.) In addition to the original conditions of his release, the district court also

added the following: (1) take all medications prescribed by treating physician, and

cooperate with random blood tests to ensure that a therapeutic level of his prescribed

medications is maintained; and (2) reside in a residential reentry center for six months.4

The judge told Raymonde: “This is it. If you are back here, you know, I would have no

alternative but to impose a prison sentence.” (Id. at 26.) It made clear Raymonde needed

to “dot [his] Is and cross [his] Ts . . . .” (R. Vol. III at 28.)

       Despite the court’s warnings, not a year passed before Raymonde again violated

the conditions of his supervised release for failing to: (1) submit written reports; (2)

notify his supervisory officer of change in residence; and (3) participate in mental health

treatment as directed by his probation officer. The government filed a second petition to

revoke and, on March 1, 2010, the district court held another hearing. Raymonde again

admitted to all of the alleged violations. Chapter 7 provisions of the guidelines, again,

recommended a sentencing range of 8 to 14 months imprisonment. The statutory

maximum term for imprisonment, however, was 24 months because Raymonde’s

“original offense of conviction was a Class C felony.” (Appellant Supp. R. Vol. 1 at 5.);


       4
         The judge encouraged Raymonde’s cooperation in his rehabilitation underscoring
that the “feds [as Raymonde called Federal officers, including his probation agent] are
here to help you . . . .” (R. Vol. III at 29.)


                                               -3-
see 18 U.S.C. § 3583(e)(3).

       This time, the probation officer recommended the statutory maximum of 24

months imprisonment.5 The parties, however, requested lower sentences based, in part,

on Raymonde’s “useful and valuable information” provided to law enforcement.

(Appellant Supp. R. Vol. I at 12-13.) The government sought “a sentence of . . .

approximately four months” imprisonment to be followed by “supervised release for the

maximum term available.” (Id. at 11-12.) Raymonde requested a “downward departure”

from the sentence range set forth in the guidelines based on his “substantial assistance to

law enforcement” and the court’s consideration of his personal circumstances, including

“various emotional issues concerning the health of his parents.” (Id. at 12-13.)

       After a thorough discussion with Raymonde, his counsel, and the government, the

court determined an “upward depart[ure] [was] warranted . . .” and imposed a prison

sentence of twenty-four months to be served consecutively to the state sentence




       5
        The Probation officer justified his recommendation by noting Raymonde had
been involved in a stand-off with Denver police officers in connection with his
supervised release arrest warrant and had

       [failed] to attend treatment as required . . . reverted to the use of illicit
       substances and turned his back on those who were in the best position to
       assist him . . . and is viewed as being an extreme risk to both himself and
       others, and a lengthy custodial sentence is being recommended . . . to
       afford adequate deterrence to criminal conduct, to protect the public from
       further crimes of the defendant, and to provide the defendant with needed
       medical care in the most effective manner.

(Appellee Supp. R. Vol. II at 8-9.) Raymonde’s counsel offered the district court his
own, more benign, explanation of the standoff with Denver police, but supplied no
evidence. (Appellant Supp. R. Vol. I at 13-14.)

                                            -4-
Raymonde was currently serving.6 (Appellant Supp. R. Vol. I at 15, 21.) It observed

deterrence was important as Raymonde was a risk to himself as well as to the public. It

cogently detailed its reasons for the length of Raymonde’s sentence which included:

Raymonde’s previous violations of both his federal and state supervised release; his

criminal history involving loaded handguns, methamphetamine, and items indicating the

manufacture of methamphetamine in connection with the original conviction; and his

incredible story that his cooperation with law enforcement officers justified his

possession of firearms. Significantly, the court also factored into its decision

Raymonde’s cooperation with law enforcement as well as his personal circumstances

including his mental health issues. (Appellant Supp. R. Vol. I at 11-13, 21.)

                                   II.    DISCUSSION

       Raymonde requests “only . . . [a] reasonableness review of the substantive

component of the sentence which he received.” (Appellant Br. at 8-9.) He complains

two years imprisonment is unreasonable in light of the guidelines’ recommendation of 8

to 14 months and the facts and circumstances of this case.7 We begin, as always, with


       6
        Although the district court used the term “depart,” (Appellant Supp. R. Vol. I at
21), we construe Raymonde’s sentence as a variance from the applicable 8 – 14 month
sentencing range. A departure occurs “when a court reaches a sentence above or below
the recommended Guidelines range through application of Chapters Four or Five of the
Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101, n.1 (10th Cir.
2007), overruled in part on other grounds by Irizarry v. United States, 553 U.S. 708, 713
n. 1 (2008). A variance occurs “when a court enhances or detracts from the
recommended range through application of § 3553(a) factors.” Id.
       7
         Specifically, Raymonde complains: “As far as the ‘kinds of sentences’ available,
the policy statement in the Sentencing Guidelines provided adequate sentencing options
for the district court. The upward departure was unnecessary and an abuse of discretion.”

                                            -5-
our standard of review:

       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. This is the same analysis as the
       reasonableness standard of review under United States v. Booker . . . . Our
       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. In Gall v. United States . . . , the Supreme Court identified failing
       to consider the § 3553(a) factors and failing to adequately explain the
       chosen sentence as forms of procedural error. On the other hand, a
       challenge to the sufficiency of the § 3553(a) justifications relied on by the
       district court implicates the substantive reasonableness of the resulting
       sentence.

United States v. Steele, 603 F.3d 803, 807-08 (10th Cir. 2010) (quotations and citations

omitted).

       Substantive reasonableness of the length of a sentence is reviewed under an abuse-

of-discretion standard. Id. at 809 (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

“A district court abuses its discretion when it renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” Id. (quoting United States v.

Landers, 564 F.3d 1217, 1224 (10th Cir. 2009)). Accordingly, this Court will not disturb

a district court’s decision unless we have “a definite and firm conviction that the lower

court made a clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir.1986). “This

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

outside the advisory Guidelines range.” Steele, 603 F.3d at 809.



(Appellant Br. at 12.)


                                            -6-
       Raymonde’s sentence is both reasoned and reasonable. The district court

considered the Chapter 7 policy statements and articulated its justification for varying

from the recommended range. Although it did not explicitly reference § 3553(a), a

“district court need not ‘march through § 3553(a)’s sentencing factors,’ nor do we

‘demand that the district court recite any magic words to show that it fulfilled its

responsibility to be mindful of the factors that Congress has instructed it to consider.’”

United States v. Verdun-Garcia, 516 F.3d 884, 898 (10th Cir. 2008) (quoting United

States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005)). The court plainly took those

factors8 into consideration, discussing the nature and circumstances of Raymonde's

repeated supervised release violations and his criminal history. It also considered the

need for Raymonde’s sentence to promote respect for the law, afford adequate deterrence

to criminal conduct, and protect the public from a defendant’s future criminal activity

under § 3553(a)(2)(A)-(C), noting: “I think you are a risk to yourself and the public, and

deterrence is very important here . . . I don’t think continued supervised release is going

to be productive . . . .” (Appellant Supp. R. Vol. I at 20.)

       Raymonde relies on an Eighth Circuit decision, United States v. Defoor, 535 F.3d

       8
           The factors to be considered are:

       (1) offense and offender characteristics; (2) the need for a sentence to
       reflect the basic aims of sentencing, namely (a) just punishment
       (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the
       sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing
       Commission policy statements; (6) the need to avoid unwarranted
       disparities [between defendants]; and (7) the need for restitution.

Rita v. United States, 551 U.S. 338, 347-48 (2007) (quotations omitted) (discussing 18
U.S.C. § 3553(a)(1)-(7)).

                                               -7-
763 (8th Cir. 2008), in aid of his proportionality/disparity argument. There, the appellate

court affirmed a sentence identical to Raymonde’s based on Defoor’s commission of a

violent aggravated assault in violation of supervised release. Raymonde argues his

violations are minimal in comparison. We are not persuaded for several reasons.

       First, while sentencing disparity is still a factor to be considered, see U.S.C. §

3553(a)(6), district courts now have wide latitude in imposing sentences at variance with

the guidelines, see Gall, 552 U.S. at 46-47 (citing United States v. Booker, 543 U.S. 220

(2005)), and to disagree with the Sentencing Commission’s policy considerations. See

Spears v. United States, --- U.S. ----, ----, 129 S. Ct. 840, 843-844 (2009) (holding district

courts are entitled to vary from the guidelines based on a policy disagreement with those

guidelines); see also Kimbrough v. United States, 552 U.S. 85, 91, 101-102 (2007).

Consequently, sentencing decisions will inevitably be less than uniform. Second,

Defoor’s extreme misconduct cannot become a sentencing yardstick – a wide range of

conduct less egregious than Defoor’s can reasonably justify a maximum sentence of two

years. Finally, a scavenger hunt for the most extreme conduct subject to a statutory cap is

unlikely to support disparity arguments. The empirical evidence animating the

sentencing recommendations in the guidelines are a much better measure of disparity.

The district court need only explain why the case at bar, in its experience and judgment,

warrants differential treatment. That was done here. The sentence imposed was reasoned

and reasonable.




                                             -8-
AFFIRMED.

            Entered by the Court:

            Terrence L. O’Brien
            United States Circuit Judge




             -9-
