                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  October 4, 2013
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 13-2063
 v.                                          (D.Ct. No. 2:10-CR-01453-JBM-2)
                                                         (D. N.M.)
 CRYSTAL MARIE PENA,

          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 Crystal Marie Pena appeals her nine-month sentence following

revocation of her supervised release. She asserts the district court abused its


      *
         This order and judgment is not binding precedent except under the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.
discretion in imposing a sentence at the high end of the advisory United States

Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range, which she claims

resulted in a procedurally and substantively unreasonable sentence. We exercise

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Ms.

Pena’s nine-month term of imprisonment.

                       I. Factual and Procedural Background

      On August 11, 2010, Ms. Pena pled guilty to conspiracy to possess with

intent to distribute marijuana in violation of 21 U.S.C. § 846. On November 18,

2010, the district court sentenced her to 195 days imprisonment or time served,

whichever is less, and two years supervised release, premised on general and

special conditions of supervision. Her supervised release began that day. Seven

months later, on June 10, 2011, the government filed a petition for revocation of

her supervised release, alleging noncompliance with the conditions of her release,

including failure to (1) report for urine testing on at least three occasions; (2)

respond to her probation officer’s attempts to contact her; (3) submit her monthly

report; and (4) notify her probation officer of a change in her employment, as

evidenced by the fact her employer had not seen or heard from Ms. Pena for two

weeks and could not locate her. At a revocation hearing on August 25, 2011, Ms.

Pena admitted to all the violations alleged, resulting in the probation officer

recommending a Guidelines sentence of nine months imprisonment. While the

district court revoked her supervised release, it sentenced her to only three

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months incarceration and eighteen months supervised release, pointing out it was

her first violation of the terms of her supervised release.

      On April 1, 2013, at another revocation hearing, the district court again

found Ms. Pena in violation of her supervised release after her admission to

violating the conditions of her release, including absconding from supervision and

failing to report a change in employment, submit her monthly report, and

participate in and successfully complete a substance abuse treatment program. A

Grade C violation, together with her criminal history category of I, resulted in a

recommended Guidelines range of three to nine months imprisonment. At the

hearing, Ms. Pena’s counsel conceded this was the applicable Guidelines range

and requested a three-month sentence following revocation. While he

acknowledged Ms. Pena should have contacted her probation officer to work out

any difficulties she had in complying with the conditions of her supervised

release, he explained she had a five-month-old baby and quit her minimum wage

job to move fifty miles away to live with her brother so he and her aunt could

assist in the care of her child. The government did not object to a sentence at the

low end of the Guidelines range or time served, whichever was less.

      On finding Ms. Pena in violation of the terms of her supervised release

based on her own admissions, and after considering the 18 U.S.C. § 3553(a)

sentencing factors and the Chapter Seven Guidelines, the district court determined

her ongoing violations justified a sentence at the high end of the advisory

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Guidelines range of nine months imprisonment. In support, the district court

explained, “this Defendant was not compliant with the treatment services and she

absconded from supervision not for the first time, but for a second time.” It did

not impose a term of supervised release. Neither Ms. Pena nor her counsel made

a contemporaneous objection to the sentence or the district court’s reasoning for

the imposition of a nine-month sentence.

                                   II. Discussion

      On appeal, Ms. Pena suggests the district court imposed a procedurally and

substantively unreasonable sentence by imposing a sentence at the high end of the

advisory Guidelines range of three to nine months. In support of her argument,

she contends “the court erred in finding there was sufficient evidence to impose a

sentence at the high end” and notes the government did not object to a lower

sentence. She also claims the district court abused its discretion by disregarding

her arguments for a low-end sentence, which she contends violated her due

process rights, and that a sentence of three months is sufficient and not greater

than necessary under the 18 U.S.C. § 3553(a) sentencing factors because she only

violated the conditions of her supervised release due to economic difficulties

involving her baby. The government opposes the appeal, stating the district court

did not abuse its discretion in giving more weight to the fact she committed a

second instance of absconding from supervision than the circumstances she

claimed caused her violation.

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      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)(2). 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 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). To revoke a term of supervised release, the district

court must find by a preponderance of the evidence the defendant violated a

condition of that release. See 18 U.S.C. § 3583(e)(3); United States v. Disney,

253 F.3d 1211, 1213 (10th Cir. 2001). Generally, we will not reverse a sentence

following revocation of supervised release if the record establishes the sentence is

      1
         With respect to the sentencing factors, they include not only “the nature
of the offense” but the history and “characteristics of the defendant, as well as the
need for the sentence to reflect the seriousness of the crime, to provide adequate
deterrence, to protect the public, and to provide the defendant with needed
training or treatment ....” United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.
2006); 18 U.S.C. § 3553(a). The Chapter Seven policy statements apply to
violations of probation and supervised release and include advisory guideline
ranges for sentences following revocation of supervised release. See generally
Ch. 7 and U.S.S.G. §§ 7B1.3 and 7B1.4.

                                         -5-
“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 objections to procedural

reasonableness are not contemporaneously raised, we review them for plain error. 2

Id. at 1225-26.

      “Procedural reasonableness addresses whether the district court incorrectly

calculated or failed to calculate the Guidelines sentence, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous

facts, or failed to adequately explain the sentence.” United States v. Huckins, 529

F.3d 1312, 1317 (10th Cir. 2008). 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. Smart,

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

      We review Ms. Pena’s procedural reasonableness argument for plain error


      2
         Under our plain error review, Ms. Pena must demonstrate: (1) there is an
error; (2) that is plain; (3) which affects her substantial rights, and (4) which
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Ruby, 706 F.3d at 1225-26.

                                          -6-
because she did not make a contemporaneous argument before the district court.

However, regardless of which standard of review we apply, she cannot prevail. In

this case, Ms. Pena does not contest the fact that the advisory Guidelines range

for her sentence on revocation is three to nine months imprisonment, thereby

conceding to the proper calculation of her Guidelines range. Instead, she argues

the district court failed to consider her arguments in support of a lower sentence,

resulting in violation of her due process rights and a procedurally unreasonable

sentence. We disagree. It is clear the district court, which listened to her

counsel’s arguments, considered but rejected her proffered grounds in support of

a lower sentence. Moreover, our review of the record establishes the district

court not only correctly calculated the Guidelines sentence, but properly treated

the Guidelines as advisory and considered the § 3553(a) factors as well as the

Chapter Seven policy statements and did not rely on clearly erroneous facts or fail

to adequately explain the sentence. Rather, given Ms. Pena’s admissions, the

record overwhelmingly supports, by a preponderance of the evidence, the district

court’s findings of fact she violated the conditions of her supervised release,

including absconding from supervision. As a result, the district court did not

commit an error, plain or otherwise, and, instead, imposed a procedurally

reasonable sentence.

      As to Ms. Pena’s argument her sentence is substantively unreasonable, she

seems to contend, as the government indicates, that the district court erred in

                                         -7-
balancing the 18 U.S.C. § 3553(a) factors by giving insufficient consideration or

weight to the reasons she offered for a lesser sentence. In reviewing the

substantive reasonableness of a sentence, we may not examine the weight a

district court assigns to the § 3553(a) factors, and its ultimate assessment of the

balance between them, but give deference to its decision the § 3553(a) factors, on

a whole, justify the sentence imposed. See Smart, 518 F.3d at 808.

      In this case, the district court imposed a sentence within the Guidelines

range, making it presumptively reasonable and leaving Ms. Pena to rebut such a

presumption. See Kristl, 437 F.3d at 1054. The district court provided its

reasoning for a sentence at the high end of the Guidelines range, explaining Ms.

Pena was noncompliant with her substance abuse program and this was the second

time Ms. Pena absconded from supervision. Absconding from supervision is a

very serious violation of the condition of one’s supervised release, and the fact

Ms. Pena elected to do it a second time, even after a previous revocation of her

sentence on the same grounds, is a sufficiently compelling ground to satisfy us

the sentence imposed is “reasoned and reasonable.” Moreover, the district court’s

reasoning for such a sentence is further bolstered by Ms. Pena’s failure to provide

any reason, either before the district court or on appeal, why she could not advise

her probation officer she was leaving her employment and moving away. The fact

she had a baby does not excuse her from advising the probation officer of her

changed circumstances. As a result, Ms. Pena has not demonstrated her sentence

                                          -8-
is substantively unreasonable for the purpose of warranting reversal on appeal.

                                 III. Conclusion

      Accordingly, we AFFIRM Ms. Pena’s nine-month term of imprisonment

following revocation of her supervised release.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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