                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 9, 2016
                                                               Elisabeth A. Shumaker
                                  TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 15-5074
 v.
                                              (D.C. No. 4:10-CR-00050-JHP-1)
                                                        (N.D. Okla.)
 GRANT ANDREW STOUT,

          Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.



      Grant Andrew Stout pleaded guilty to being a felon in possession of

firearms and ammunition and was sentenced to 32 months’ imprisonment,

followed by three years of supervised release. After he violated the conditions of

his release, the district court sentenced Mr. Stout to an additional 18 months in

prison.



      *
         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. 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      Mr. Stout now appeals, arguing that the district court acted in a

procedurally unreasonable manner by failing to consider the sentencing guidelines

range, as required by 18 U.S.C. § 3553(a)(4), and by failing to explain its specific

reasons for selecting a sentence outside that range, as required by 18 U.S.C.

§ 3553(c)(2). Because Mr. Stout never objected to the procedure by which his

sentence was determined and explained at sentencing, our review is limited to

plain error. See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007). We will find plain error only where there is “(i) error, (ii) that is plain,

which (iii) affects the defendant’s substantial rights, and which (iv) seriously

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

      We see no error that might fairly be called plain. The district court

correctly calculated the recommended guidelines range of 5-11 months and did

not treat that range as mandatory. See R. vol. II, at 20. The court considered the

§ 3553(a) factors, applied those factors in imposing its sentence, and provided

specific reasons for issuing a sentence above the guidelines range, emphasizing

“the defendant’s lack of cooperation with supervision,” “his overall attitude

toward both the court and the probation office,” and the court’s perception that

Mr. Stout “ha[d] shown little desire to succeed on supervision nor to desire a

change in behavior.” Id. at 32. The district court provided similar reasons in its

written statement. See Supp. R. vol. I, at 1.




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       Neither can Mr. Stout satisfy the third prong of the plain error test. To

show that an error affected his substantial rights, Mr. Stout must establish “a

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

would have been different.” United States v. Cook, 550 F.3d 1292, 1298 (10th

Cir. 2008) (internal quotation marks omitted). This he cannot do. Whatever the

perceived inadequacy in the district court’s recitation of its reasons for departing

from the guidelines range, the district court’s sentencing decision was amply

supported by evidence the government proffered at sentencing and the defense

left uncontroverted. The record reveals that Mr. Stout violated six terms of his

supervised release, including by possessing dangerous weapons and testing

positive for methamphetamines numerous times. R. vol. II, at 23-26. We cannot

say that, but for the claimed error, there is any reasonable probability Mr. Stout’s

sentence would have been different.

      Affirmed.

                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




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