                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 8, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-3024
          v.                                             (D. Kansas)
 BILLY WAYNE WHITE,                        (D.C. No. 2:97-CR-20033-KHV-JPO-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, EBEL, and HARTZ, Circuit Judges.


I.    INTRODUCTION

      After Billy Wayne White (Defendant) violated the terms of his supervised

release, the United States District Court for the District of Kansas revoked his

release and sentenced him to 46 months’ incarceration. Defendant appeals his

sentence, arguing that it was procedurally unreasonable because the district court

failed to articulate its reasons for imposing the sentence. We affirm.


      *
       After examining the briefs and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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.
II.    BACKGROUND

       In 1997 Defendant was convicted of distributing 11.4 grams of crack

cocaine. He was sentenced to 140 months’ imprisonment and eight years of

supervised release. The term of supervised release began on November 19, 2007.

On July 29, 2008, the government filed a petition to revoke. The petition alleged

that Defendant had violated the terms of release on July 22 by possessing

approximately 70 grams of marijuana with intent to distribute it. Defendant was

prosecuted in Kansas state court and was eventually found guilty of felony

marijuana possession on September 11, 2009.

       The violation report prepared by the federal probation office characterized

Defendant’s offense as a Grade A violation. Given his criminal-history category

of V and his original offense of conviction, the sentencing range recommended by

the United States Sentencing Guidelines policy statements was 46 to 57 months.

See USSG § 7B1.4(a). On December 28, 2009, the court granted the

government’s petition and sentenced Defendant to 46 months’ imprisonment.

III.   DISCUSSION

       Defendant does not contest the district court’s calculation of the

recommended sentencing range. He argues only that the district court violated

18 U.S.C. § 3553(c) by failing to articulate its reasons for sentencing him to 46

months’ imprisonment. Subsection (c) provides: “The court, at the time of

sentencing, shall state in open court the reasons for its imposition of the particular

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sentence . . . .” 18 U.S.C. § 3553(c). Defendant asserts that aside from “making

credibility determinations to support the finding of a Grade A violation, the

District Court said little else concerning how [it] concluded a 46 month sentence

was reasonable.” Aplt. Br. at 9. According to Defendant, this was insufficient to

satisfy the requirements of § 3553(c), thereby rendering his 46-month sentence

unreasonable.

      Because Defendant failed to raise this issue at sentencing, we review for

plain error. See United States v. Caraway, 534 F.3d 1290, 1298 (10th Cir. 2008).

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

[Defendant’s] substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (internal quotation

marks omitted). The defendant has the burden of establishing all four elements of

plain error. See United States v. Gonzalez, 558 F.3d 1193, 1199 (10th Cir. 2009).

      We resolve this case at the first stage of the plain-error analysis because the

district court committed no error. Under our precedent a district court sentencing

a defendant for violating a condition of supervised release must comply with

§ 3553(c) and state in open court the reasons for imposing a specific sentence. 1

      1
         The government argues that there is no statutory authority for applying
18 U.S.C. § 3553(c) to a revocation of supervised release, and that doing so “does
not reflect a recognition that a revocation proceeding is not a sentencing
proceeding.” Aplee. Br. at 12–13. Hence, it argues, there is “an apparent
incongruence” between congressional directives and this court’s precedents. Id.
at 13. But it does not ask us to overturn our precedents, and this panel is bound
                                                                       (continued...)

                                          -3-
See United States v. Rose, 185 F.3d 1108, 1111–13 (10th Cir. 1999) (applying

§ 3553(c) to a revocation of supervised release); United States v. Burdex, 100

F.3d 882, 886 (10th Cir. 1996) (upon sentencing a defendant who has violated the

terms of his supervised release, the “court need only give the reasons for its

action as required by 18 U.S.C. § 3553(c)”). Compliance with § 3553(c) at the

original sentencing is not a burdensome requirement. “Where . . . a district court

imposes a sentence falling within the range suggested by the Guidelines, Section

3553(c) requires the court to provide only a general statement of ‘the reasons for

its imposition of the particular sentence.’” United States v. Ruiz-Terrazas, 477

F.3d 1196, 1199 (10th Cir. 2007). That “general statement need involve no

ritualistic incantation to establish consideration of a legal issue,” id. at 1202

(internal quotation marks omitted), and need only “not[e] the appropriate

guideline range and how it was calculated.” Id. (internal quotation marks

omitted). The same standard applies to sentences after revocation of supervised

release that are within the range recommended by the Sentencing Commission’s

policy statements. See United States v. McBride, No. 10-3206, 2011 WL 489681

(10th Cir. Feb. 14, 2011).




      1
       (...continued)
by circuit precedent anyway.

                                          -4-
      The district court’s statements at Defendant’s sentencing were sufficient to

satisfy § 3553(c). In finding that Defendant had violated a condition of

supervised release, the court stated:

            Well, I believe that the testimony [of the government’s
      witnesses] was more credible than [Defendant’s] testimony. And the
      Court does find that the highest grade of violation here is A, that
      defendant was not only in possession of 70 grams of marijuana, but
      was in clear plastic Baggies, a digital scale, and $1,432, which was
      evidence of being involved in distribution of illegal drugs. And I
      don’t at all credit his explanation for the events of this encounter
      with police on July 22nd, 2009.
            So then we would be looking again at a custody range of 46 to
      57 months. Would you like to be heard on sentencing?

R., Vol. 2 pt. 2 at 91–92. Defense counsel declined the court’s offer, stating that

“everything ha[d] probably been said that can possibly be said about this matter”

and that “further comment would [not] be of much benefit.” Id. at 92. Defendant

then spoke on some factual issues not relevant to the appeal and the court

discussed with counsel what term of supervised release could be imposed after the

revocation sentence. Defense counsel urged the court not to impose any further

supervised release after a lengthy sentence on revocation. The court imposed

sentence, saying:

      [T]he sentence I would propose here—first of all, the highest grade
      violation is A, the criminal history category is 5. The Court finds
      that defendant has violated the terms of supervised release which the
      Court imposed on October 27, 1997. So that term of supervised
      release is revoked.
             The Court finds, Mr. White, that you should be sentenced to
      the custody of the Bureau of Prisons for 46 months. When you’re


                                         -5-
      released from prison, you’ll be placed on supervised release for 50
      months.

Id. at 98–99. By stating the appropriate guideline range and how it was

calculated, the court gave a satisfactory general statement of the reasons for

imposing the sentence.

IV.   CONCLUSION

      We AFFIRM the Defendant’s sentence.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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