                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  August 5, 2013
                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                            __________________________             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 13-4000
 v.                                           (D.Ct. No. 2:03-CR-00708-TS-1)
                                                          (D. Utah)
 RANDY YAGI,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant Randy Yagi appeals his fifteen-month sentence following

revocation of his supervised release. He asserts the district court erred in


      *
         This order and judgment is not binding precedent except under the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.
imposing a variant sentence above the advisory United States Sentencing

Guidelines (“U.S.S.G.” or “Guidelines”) range without providing a reason for

imposing such a sentence. We exercise jurisdiction pursuant to 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Yagi’s fifteen-month term of

imprisonment.

                         I. Factual and Procedural Background

      In 1992, Mr. Yagi was convicted of using a false name and social security

number on five loan applications submitted to a financial institution, for which he

received a six-month sentence and a thirty-six-month term of supervised release.

In 2002, Mr. Yagi was convicted of securities fraud involving the solicitation of

investments funds. In 2004, Mr. Yagi pled guilty to the instant offense of

submitting a false loan application to a bank by using a false name in violation of

18 U.S.C. § 1014, which is a Class B felony, and received a below-Guidelines

sentence of fifteen months incarceration and a term of sixty months supervised

release contingent on certain general and special conditions of supervision. After

his release from prison, Mr. Yagi violated the terms of his supervised release,

which included violating the prohibition against his controlling the assets or funds

of others. Following revocation of his supervised release, Mr. Yagi received a

within-Guidelines sentence of eleven months followed by a forty-two-month term

of supervised release.

      After his release from incarceration, Mr. Yagi again violated the conditions

                                         -2-
of his supervised release, admitting in the instant case that he committed six of

the sixteen violations charged against him, including violation of the prohibition

against his controlling the funds of others. These violations resulted in a

recommended advisory Guidelines range of five to eleven months incarceration

and a term of sixty months supervised release, less any term of imprisonment

imposed.

      At the revocation hearing, Mr. Yagi requested a sentence at the low end of

the Guidelines range based on his assistance to the government and

remorsefulness. In turn, the government recommended a within-Guidelines

sentence of nine months followed by an additional period of supervised release.

In arguing for such a sentence, the government stated it initially considered

requesting an eighteen- to twenty-four-month sentence based on Mr. Yagi’s prior

history but that it “walked back from that primarily because [it] want[ed] to keep

[him] on paper” and that it “would like to keep [him] on paper for as long as

[possible] ... for protection of the community ....” The district court responded by

stating the government’s position “presumes that having [Mr. Yagi] on paper

somehow or another deters his conduct, but there is no apparent proof of that. To

the contrary, the evidence [is] overwhelming that nothing by way of supervision

does any good.” It then imposed an above-Guidelines sentence of fifteen months

incarceration without supervised release. Mr. Yagi did not make a

contemporaneous objection to the sentence.

                                         -3-
                                   II. Discussion

      On appeal, Mr. Yagi contends the district court committed plain error in

imposing a sentence above the advisory Guidelines range because it failed to

provide “even one reason” for the sentence, which he contends resulted in a

procedurally unreasonable sentence. He also contends his sentence is

substantively unreasonable because the error affected his “substantial rights” and

undermines the fairness, integrity, and public reputation of judicial proceedings,

leaving this court in the zone of appellate speculation with the inability to

meaningfully review his sentence. The government opposes the appeal.

      Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583, when

a person violates the conditions of supervised release, the district court may

modify the conditions of release or, as in this case, revoke the term of supervised

release and impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304

(10th Cir. 2004); 18 U.S.C. § 3583(e)(2) and (3); Fed. R. Crim. P. 32.1(b);

U.S.S.G. § 7B1.3(a). In imposing a sentence following revocation of supervised

release, the district court is required to consider both the Guidelines Chapter

Seven policy statements as well as the factors provided in 18 U.S.C. § 3553(a). 1

      1
         The Chapter Seven policy statements include advisory guideline ranges
for sentences following revocation of supervised release. See generally Ch. 7 and
U.S.S.G. §§ 7B1.3, 7B1.4. With respect to the sentencing factors, they include, in
part, not only the nature of the offense but the history and characteristics of the
defendant, as well as the need for the sentence to provide adequate deterrence and
protect the public. See United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.
                                                                        (continued...)

                                          -4-
See United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). “The court

may, after considering the factors set forth in” § 3553(a)(1)-(7), “revoke a term of

supervised release and require the defendant to serve in prison all or part of the

term of supervised release authorized by statute for the offense ....” 18 U.S.C.

§ 3583(e)(3). In this case, the advisory Guidelines range for Mr. Yagi’s sentence

on revocation is five to eleven months imprisonment. See U.S.S.G. §§ 7B1.3(a)-

(b), 7B1.4(a). However, § 3583 authorized the district court to impose a

maximum sentence of up to three years in prison for his Class B felony conviction

for loan fraud in violation of 18 U.S.C. § 1014. See 18 U.S.C. § 3583(e)(3).

      Generally, we will not reverse a sentence following revocation of

supervised release if the record establishes the sentence is “reasoned and

reasonable.” United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir.

2005). Our appellate review for reasonableness includes both a procedural

component as well as a substantive component, which we review for an abuse of

discretion. See United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013). We

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

de novo. Id. However, in instances, like here, where an objection to procedural

reasonableness is not contemporaneously raised, we review for plain error. 2 Id. at

      1
       (...continued)
2006); 18 U.S.C. § 3553(a).
      2
          Under our plain error review, Mr. Yagi must demonstrate: (1) there is an
                                                                    (continued...)

                                          -5-
1225-26. Procedural reasonableness addresses, in part, whether the district court

“failed to adequately explain the sentence,” as alleged here. United States v.

Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). “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. Smart, 518

F.3d 800, 804 (10th Cir. 2008).

      In this case, the district court’s explanation of the fifteen-month sentence

imposed is extremely concise. Nevertheless, it is clear the district court provided

a reason for the variant sentence by explaining the government’s recommendation

for a within-Guidelines sentence would not sufficiently deter Mr. Yagi from

future misconduct and that his record overwhelmingly showed supervised release

did not do “any good.” In so doing, it clearly rejected the government’s argument


      2
        (...continued)
error, (2) that is plain, (3) which affects his substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
Ruby, 706 F.3d at 1226. To show the alleged error affected a substantial right, he
must show the error was “prejudicial,” so that the error “must have affected the
outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,
734 (1993). Stated another way, he must show “a reasonable probability that, but
for the error claimed, the result of the proceeding would have been different.”
United States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004) (internal quotation
marks omitted). As to the fourth prong, in order to show the error seriously
affected the fairness, integrity, or public reputation of the judicial proceeding, Mr.
Yagi must demonstrate that a failure to correct the alleged error would result in a
“miscarriage of justice.” See United States v. Gonzalez-Huerta, 403 F.3d 727,
736 (10th Cir. 2005). One can establish such an error by demonstrating “a strong
possibility of receiving a significantly lower sentence” absent the error. United
States v. Meacham, 567 F.3d 1184, 1190 (10th Cir. 2009).

                                          -6-
a within-Guidelines sentence would protect the public. Thus, while succinct, the

district court did provide its reason for imposing the instant sentence of fifteen

months incarceration with no supervised release, and therefore, Mr. Yagi’s

argument that it did not provide “even one reason” for such a sentence is

inconsistent with the record on appeal.

      In addition, “although a district court must provide reasoning sufficient to

support the chosen variance, it need not necessarily provide ‘extraordinary’ facts

to justify any statutorily permissible sentencing variance.” Smart, 518 F.3d at

807. Here, the district court imposed a statutorily-permissible sentencing

variance, and its consideration of Mr. Yagi’s prior violations of his supervised

release, together with the issues of deterrence and protection of the public, are

permissible sentencing factors for the district court’s consideration. See 18

U.S.C. § 3553(a). Thus, its reason for such a sentence, while succinct, is still

sufficient to allow a meaningful review of his sentence.

      We also conclude the district court’s variant fifteen-month sentence is not

only reasoned but reasonable given: (1) Mr. Yagi’s multiple past convictions for

using a false name on loan applications and improperly soliciting investment

funds from others; (2) his instant conviction for similarly submitting a false loan

application to a bank by using a false name; and (3) his past history of violating

the terms of his supervised release, including repeatedly violating the prohibition

against controlling the funds of others. Given this history, it was not

                                          -7-
unreasonable for the district court to conclude a within-Guidelines sentence and

supervised release would not deter future violations of the conditions of his

supervised release or protect the public.

      As a result, we cannot say the district court committed an error, plain or

otherwise, in ordering a variant sentence. The district court’s explanation for a

variant sentence following revocation, while concise, was sufficiently compelling

to support the degree of the variance and has satisfied us it considered the parties’

arguments and had a reasoned and reasonable basis for the variance. As a result,

the district court did not impose a procedurally or substantively unreasonable

sentence. However, even if we concluded an error occurred with respect to the

district court’s explanation of the variant sentence, Mr. Yagi has not shown such

error affected the outcome of the proceedings or that there is a strong possibility

he would have received a significantly lower sentence absent such an error. In

other words, nothing in the record or evidence presented by Mr. Yagi persuades

us he would have received a lesser sentence, even with a more thorough

explanation.

                                   III. Conclusion

      Accordingly, we AFFIRM Mr. Yagi’s fifteen-month sentence.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge


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