                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                     UNITED STATES COURT OF APPEALS                          October 2, 2012

                                                                           Elisabeth A. Shumaker
                                     TENTH CIRCUIT                             Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
v.                                                           No. 12-1066

DENISE ANN VIGIL, a/k/a Denise
Herrera-Ruiz,

             Defendant - Appellant.




                    Appeal from the United States District Court
                            for the District of Colorado
                         (D.C. No. 1:08-CR-00392-JLK-1)


John F. Walsh, United States Attorney, and Paul Farley, Assistant U.S. Attorney, Denver,
Colorado, for Plaintiff - Appellee

Scott T. Poland of Poland and Wheeler, P.C., Lakewood, Colorado, for Defendant -
Appellant


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


O’BRIEN, Circuit Judge.


      
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
        Denise Ann Vigil appeals from a twelve-month prison sentence imposed on

February 7, 2012, following a series of revocations of probation or supervised release.

She argues the sentence is unreasonable because it is three months longer than the

maximum recommended by the Sentencing Guidelines and no exceptional circumstances

warranted the variance. The judge imposed condign punishment. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

        On May 4, 2006, Vigil pled guilty to making a false statement, a Class D felony,

in violation of 18 U.S.C. § 1001, for which she was sentenced to three years of probation

with no early discharge. The special conditions of her probationary sentence required her

to: (1) perform 200 hours of community service, (2) complete parenting classes, and (3)

obtain a G.E.D. Although she entered her plea in the Western District of Texas, her case

was transferred to the District of Colorado, when she moved from Texas to Colorado in

2008.

        In 2009, Vigil’s probation officer petitioned for revocation of her probation

because she had: (1) pled guilty to child abuse; (2) submitted a report falsely claiming to

have completed 200 hours of community service at Goodwill; and (3) failed to perform

any community service. At an April 1, 2009, hearing, her probation was revoked, and

she was sentenced to time served in detention prior to sentencing (six days) and two years

of supervised release, six months of which was to be in a halfway house. Under the

special conditions of her supervised release, she was ordered to: (1) complete 200 hours


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of community service, (2) reside in a Community Corrections Center for six months, (3)

complete parenting classes, (4) obtain a G.E.D. certificate, (5) take all prescribed

medications and cooperate with random blood tests, and (6) participate in a mental-health

treatment program. At disposition, the judge admonished her:

               And if you so much as violate even a curfew rule, you so much as
       tell one lie to anybody that is responsible for you as a probation officer or at
       that halfway house, you are coming back here, and you’re going to get the
       full sentence with no time off.

              You are looking now at six months in a halfway house and 18
       months on supervised release. And if there’s one violation, you are going
       to do the full time that the law permits in prison, not in a halfway house.
       Do you understand me?

(R. Vol. III at 8). Vigil responded, “Yes.” Id.

       In August 2009, four months later, Vigil admitted to having violated her

supervised release by possessing and using a controlled substance, failing to follow the

instructions of her probation officer, and failing to comply with the rules of the

Residential Re-entry Center (RRC).1 The judge resentenced her to two years of

imprisonment followed by one year of supervised release. The special conditions of that

supervised release required her to: (1) participate in a program of testing and treatment

for drug abuse, (2) participate in mental-health treatment, (3) take all prescribed

medication and comply with random blood tests, (4) perform 200 hours of community

service, and (5) complete parenting classes.


       1
        The record refers to both a Community Correction Center and a Residential Re-
entry Center. We assume they are the same, not that it matters much.

                                                  -3-
       In March 2011, the outset of her supervised release, Vigil agreed to complete ten

hours of community service each week. She not only failed to meet this requirement, but

also never started parenting classes, had numerous absences from her G.E.D. classes, and

missed group counseling sessions. Because she appeared to be following her pattern of

noncompliance with release conditions, her probation officer petitioned to modify the

conditions and also requested that she be placed in a RRC for up to six months, until she

successfully completed the conditions of her supervised release. Vigil did not oppose the

modification. In October 2011, the sentencing judge ordered the modification and placed

her in a RRC. True to past practice, Vigil failed to comply with the RRC rules or

participate in substance-abuse and mental-health treatment. Consequently, a warrant was

issued for her arrest, and a revocation hearing was scheduled.

       Prior to the revocation hearing, Vigil had moved for a variant sentence; she

requested to be sentenced to time served (35 days) and have her case terminated. Her

failure to comply with her supervised-release conditions, she claimed, was because of

“mental health issues,” diagnoses of “major depression, chronic, cannabis dependence, in

remission, and obsessive compulsive disorder,” reported in May 2011. Defense counsel

contended the “federal criminal justice system has done enough to try and rehabilitate

Ms. Vigil,” and “such efforts have been counter productive”; thus, further prison time

would not “have any positive benefit either for Ms. Vigil or society.”

       Vigil’s probation officer detailed her many supervised-release violations in a

Supervised Release Violation Report. Based on Vigil’s Grade C violations and a


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criminal history category of I, the probation officer recommended the sentencing range

set forth in the Chapter 7 policy statement, which was three to nine months of

imprisonment, U.S.S.G. § 7B1.4(a); the statutory maximum is twenty-four months, 18

U.S.C. § 3583(e)(3). Because of Vigil’s history of noncompliance, the probation officer

recommended a sentence of nine months of imprisonment with no supervised release.

       At the February 7, 2012, hearing on Vigil’s supervised-release violations, her

counsel repeated the points made in the motion for a variant sentence. The government

responded:

              It’s of particular note that the defendant in this case was convicted,
       originally, with a false statement crime. So she was committed with false
       statement, which is essentially lying to federal officers, and now,
       throughout the course of her supervision, throughout the time of probation,
       throughout her initial supervise[d] release, throughout her—now, her
       supervise[d] release, she continued to lie to her probation officers. That’s
       not a function of depression, that’s a function of someone who hasn’t
       gotten the message.

(R. Vol. III at 20-21).

       The judge explained his decision not to follow the Sentencing Guidelines:

       [Y]our case . . . is astonishing, in that it starts on such a minor basis, but
       there hasn’t been a single change in you. You have lied through your first
       conviction and you have continued to lie on every single event that’s in this
       violation report.

               The recommendations of the probation department for a nine-month
       sentence is, in my view, made because of the slavish adherence to
       sentencing guidelines, rather than . . . what’s genuinely needed. But I also
       see the recommendation that no further supervise[d] release be done, and
       it’s not because you achieved that much, it’s because it just isn’t worth it.
       When there are so many other people who are actually trying to respond
       and do what they can to comply with the terms of supervise[d] release.


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              So I’m not following that and I am denying the motion for a variant
       sentence, because I’m not going to follow the guidelines in this case. I
       don’t have to, and the reason I’m not is because I don’t think it’s sufficient.

(Id. at 26-27) (emphasis added). The judge recognized the imprisonment range under the

Chapter 7 policy statement was three to nine months, but chose not to follow it because

the applicable policy statement did not “contemplate the repeated acts and false

statements that are given and the failures to cooperate by this defendant.” He sentenced

Vigil to twelve months of imprisonment, half the maximum allowable sentence of two

years. 18 U.S.C. § 3583(e)(3).

                                      DISCUSSION

       Vigil argues the sentencing judge varied from a Guidelines sentence without

sufficiently exceptional justifying circumstances. “In reviewing a sentence imposed after

revocation of supervised release, we review the district court’s factual findings for clear

error and its legal conclusions de novo.” United States v. Handley, 678 F.3d 1185, 1188

(10th Cir. 2012). “We will not reverse a sentence following revocation of supervised

release if the record establishes the sentence is reasoned and reasonable.” Id. (citation

and internal quotation marks omitted). “[A] ‘reasoned’ sentence is one that is

‘procedurally reasonable’; and a ‘reasonable’ sentence is one that is ‘substantively

reasonable.’” United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011).

       “Procedural reasonableness addresses whether the district court incorrectly

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



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

failed to adequately explain the sentence.” United States v. Reyes-Alfonso, 653 F.3d

1137, 1144 (10th Cir. 2011) (citation and internal quotation marks omitted).

“[S]ubstantive reasonableness review broadly looks to whether the district court abused

its discretion in weighing permissible § 3553(a) factors in light of the ‘totality of the

circumstances.’” United States v. Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009) (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)). Vigil challenges only the substantive

reasonableness of her sentence.

       When a convicted defendant violates a condition of supervised release, the

sentencing judge may revoke the term of supervised release and impose prison time. 18

U.S.C. § 3583(e)(3). The judge must consider the factors in 18 U.S.C. § 3553(a) and the

policy statements in Chapter 7 of the Sentencing Guidelines.2 “[T]he Chapter 7

provisions dealing with violations of supervised release are not mandatory sentencing

guidelines; rather, they merely constitute advisory policy statements.” United States v.



       2
           Chapter 7 of the Sentencing Guidelines provides:

       Under 28 U.S.C. § 994(a)(3), the Sentencing Commission is required to issue
guidelines or policy statements applicable to the revocation of probation and supervised
release. At this time, the Commission has chosen to promulgate policy statements only.
These policy statements will provide guidance while allowing for the identification of
any substantive or procedural issues that require further review. The Commission views
these policy statements as evolutionary and will review relevant data and materials
concerning revocation determinations under these policy statements.
U.S.S.G. Ch. 7, pt. A1.


                                                -7-
Contreras-Martinez, 409 F.3d 1236, 1240 (10th Cir. 2005) (citations and internal

quotation marks omitted); see United States v. Hurst, 78 F.3d 482, 483 (10th Cir. 1996)

(“[T]he policy statements regarding revocation of supervised release contained in Chapter

7 of the U.S.S.G. [,including U.S.S.G. § 7B1.4(a),] are advisory rather than mandatory in

nature”; a sentencing court simply considers them “in its deliberations concerning

punishment for violation of conditions of supervised release.” (citations and internal

quotation marks omitted)). “All discussions of applicable sentences before a district

court following the revocation of supervised release should be grounded in the common

understanding that the district court may impose any sentence within the statutory

maximum.” United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996) (citation and

internal quotation marks omitted).

       “In imposing sentences after revocation of supervised release, district courts are

obligated to consider Chapter 7’s policy statements. Magic words, however, are not

required to demonstrate fulfillment of this requirement.” United States v. Tedford, 405

F.3d 1159, 1161 (10th Cir. 2005) (citation omitted). The sentencing judge considered

Vigil’s blatant, repeated violations of the conditions of her probation and supervised

release and determined the three-to-nine-month-imprisonment range recommended in the

Chapter 7 policy statement was insufficient. See United States v. Cordova, 461 F.3d

1184, 1189 (10th Cir. 2006) (affirming as reasonable sentence above the § 7B1.4(a) range

based on convicted defendant’s numerous violations and apparent inability to abide by




                                               -8-
conditions of supervised release); accord United States v. Tsosie, 376 F.3d 1210, 1218

(10th Cir. 2004); United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004).

       Vigil argues her sentence is unreasonable because, although she “remained

unmotivated throughout her term of supervised release,” and had a “propensity to

misstate the truth,” those characteristics do “not constitute ‘severe’ or ‘exceptional’

behavior.” (Appellant’s Br. at 16). But a court does not need to find severe or

exceptional circumstances to impose a sentence above the range suggested in the Chapter

7 policy statements, which are not mandatory and even less compelling than established

Guidelines. U.S.S.G. Ch. 7, pt. A. Because the sentencing judge considered the nature

and circumstances of her numerous violations, her history and characteristics, and the

recommended sentence of Chapter 7, Vigil’s sentence is reasonable.3

       According to Vigil, however, twelve months of imprisonment is an unreasonable

sentence for her false statement, the crime for which she originally was sentenced. Her

argument is quite at odds with the approach taken by the Guidelines. “[A]t revocation the

court should sanction primarily the defendant’s breach of trust, while taking into account,

to a limited degree, the seriousness of the underlying violation and the criminal history of


       3
          Even before United States v. Booker, 543 U.S. 220 (2005), determined the
Sentencing Guidelines are advisory only, we explained “[b]ecause there is no applicable
sentencing guideline for the sentence to be imposed after a violation of supervised
release, our standard of review is plainly unreasonable.” Kelley, 359 F.3d at 1304
(citation and internal quotation marks omitted). The sentence imposed need only be
“reasoned and reasonable.” Id. After Booker, Rita v. United States, 551 U.S. 338,
(2007), and Gall, it would be hard to quarrel with our deferential approach in these kinds
of cases.

                                                -9-
the violator.” Id. at 3(b). Moreover, her argument conveniently fails to recognize how

her behavior has compounded her circumstances—a teaching moment apparently lost.

The first judge used a carrot, encouraging her rehabilitation through participation in

programs; her behavior remained unchanged. The second judge dangled another carrot,

to no avail. He then used a stick, imposing incarceration followed by supervised release;

still no change. The attempts to “provide the defendant with . . . correctional treatment in

the most effective manner” utterly failed. 18 U.S.C. § 3553(a)(2)(D). All that was left

was to impose “just punishment” for her most recent breach of trust. Id. at

§ 3553(a)(2)(A). That was done.

       AFFIRMED.




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