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    United States v. Flowers, 10th Cir. (2011)

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    The document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Joseph Dale Flowers, who violated the terms of his supervised release. The district court revoked Flowers' release and sentenced him to 12 months and one day in prison followed by 12 months of supervised release. Flowers appealed, arguing his sentence was too long. The appeals court affirmed the district court's sentence, finding that Flowers failed to rebut the presumption that his within-guidelines sentence was reasonable, given his history of relapsing into drug use despite warnings from the court.

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    United States v. Flowers, 10th Cir. (2011)

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    The document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Joseph Dale Flowers, who violated the terms of his supervised release. The district court revoked Flowers' release and sentenced him to 12 months and one day in prison followed by 12 months of supervised release. Flowers appealed, arguing his sentence was too long. The appeals court affirmed the district court's sentence, finding that Flowers failed to rebut the presumption that his within-guidelines sentence was reasonable, given his history of relapsing into drug use despite warnings from the court.

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    Filed: 2011-07-12 Precedential Status: Non-Precedential Docket: 11-3049

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    The document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Joseph Dale Flowers, who violated the terms of his supervised release. The district court revoked Flowers' release and sentenced him to 12 months and one day in prison followed by 12 months of supervised release. Flowers appealed, arguing his sentence was too long. The appeals court affirmed the district court's sentence, finding that Flowers failed to rebut the presumption that his within-guidelines sentence was reasonable, given his history of relapsing into drug use despite warnings from the court.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    29 views6 pages

    United States v. Flowers, 10th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    The document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Joseph Dale Flowers, who violated the terms of his supervised release. The district court revoked Flowers' release and sentenced him to 12 months and one day in prison followed by 12 months of supervised release. Flowers appealed, arguing his sentence was too long. The appeals court affirmed the district court's sentence, finding that Flowers failed to rebut the presumption that his within-guidelines sentence was reasonable, given his history of relapsing into drug use despite warnings from the court.

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    of 6

    FILED

    United States Court of Appeals


    Tenth Circuit

    July 12, 2011


    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court

    TENTH CIRCUIT

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.

    No. 11-3049
    (D. Kansas)

    JOSEPH DALE FLOWERS,

    (D.C. No. 5:05-CR-40025-RDR-1)

    Defendant - Appellant.

    ORDER AND JUDGMENT *

    Before KELLY, HARTZ, and HOLMES, Circuit Judges.

    I.

    INTRODUCTION
    After Defendant Joseph Dale Flowers violated the terms of his supervised

    release, the United States District Court for the District of Kansas revoked his
    release and sentenced him to incarceration for 12 months and one day and
    supervised release for 12 months. Defendant appeals his sentence, arguing that it
    was substantively unreasonable. We disagree and affirm. Defendant has failed to

    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
    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.

    rebut the presumption of reasonableness that attaches to his within-guidelinerange sentence.


    II.

    BACKGROUND
    In October 2005 Defendant pleaded guilty in federal court to one count of

    possessing with intent to distribute approximately 40 grams of a mixture


    containing methamphetamine, see 21 U.S.C. 841(a)(1), and one count of
    possessing a firearm after being convicted of a felony, see 18 U.S.C. 922(g).
    On July 28, 2006, the district court imposed sentences of 100 months
    imprisonment and three years of supervised release on each count, to be served
    concurrently. His sentence was later reduced to 60 months imprisonment.
    Defendants term of supervised release began on September 15, 2010. On
    November 17 the probation office executed a petition to revoke it. The petition
    alleged that Defendant had violated the terms of his supervised release by (1)
    failing to report to the probation office within 72 hours after being released from
    prison; (2) failing to make himself available for a visit by a probation officer; (3)
    possessing and consuming methamphetamine; (4) failing to participate in an
    approved program for substance abuse; and (5) failing to report to the probation
    office as directed.
    The district court held a revocation hearing on December 9, 2010. At the
    hearing Defendant stipulated to the alleged violations and asked that the court
    modify the conditions of his release to require him to complete an inpatient drug-2-

    treatment program. The court continued the hearing for 60 days and ordered
    Defendant to begin an inpatient treatment program immediately. It also imposed
    a curfew and required Defendant to reside with his parents. The court told
    Defendant that this was [a]bsolutely [his] last chance, R., Vol. 2 at 11, and that
    it had reached the end of [its] rope as to what [it] [could] do. Id. at 13.
    Defendant began inpatient drug treatment on December 9, 2010, and
    successfully completed the program on December 22. But within a month of
    finishing the program he failed to submit to drug testing on four occasions and
    once submitted a urine specimen that tested positive for methamphetamine. In
    response, the probation office amended its petition and again asked the district
    court to revoke Defendants release.
    The district court resumed the revocation hearing on February 3, 2011. At
    the outset of the hearing, Defendants counsel acknowledged his prior stipulations
    and said that Defendant was very cognizant of the Courts statements at the
    prior hearing. Nevertheless, she requested that the court continue Defendant on
    supervised release, and stated that he would abide by any additional conditions
    that the Court might set. Id. at 19. If, however, the court was not amenable to
    this request, Defendant wished to receive a sentence of 12 months and one day (to
    make him eligible for good-time credit), with no supervision following his
    release. The court, voicing frustration with Defendants repeated relapses,
    rejected the proposal. Although the court thought that Defendant needed help
    -3-

    more than punishment, it had trouble reaching any solution . . . except


    incarceration. Id. at 2021.
    The Sentencing Commissions policy statements suggest that a defendant
    with a grade B violation and criminal-history category of IV should receive a
    sentence within a range of 12 to 18 months incarceration. See USSG 7B1.4.
    Following this suggestion, the district court sentenced Defendant to incarceration
    for 12 months and one day followed by one year of supervised release. Defendant
    timely appealed.
    III.

    DISCUSSION
    Our review of the sentence imposed is deferential. [W]e will not reverse a

    revocation sentence imposed by the district court if it can be determined from the
    record to have been . . . reasonable. United States v. Contreras-Martinez, 409
    F.3d 1236, 1241 (10th Cir. 2005) (brackets and internal quotation marks omitted).
    A revocation-of-supervised-release sentence within the range suggested by the
    Sentencing Commissions policy statements, such as the sentence here, is entitled
    to a presumption of reasonableness. See United States v. McBride, 633 F.3d
    1229, 1233 (10th Cir. 2011).
    Defendant does not contest the district courts calculation of the suggested
    sentencing range. Instead, he contends that his sentence is substantively
    unreasonable in light of the courts stated goal of helping him overcome his
    methamphetamine addiction and the goals of 18 U.S.C. 3553(a). He asserts that
    -4-

    the sentence imposed communicated to [him] that successfully completing


    inpatient treatment, and trying to get back on the right track meant nothing.
    Aplt. Br. at 6. He suggests that continuing his supervised release rather than
    imposing additional incarceration would have been a reasonable sentence.
    We disagree. The sentence proposed by Defendant may have been
    reasonable. But that does not mean that a harsher penalty was unreasonable. As
    we have previously explained, there is often a range of possible [sentences that]
    the facts and law at issue can fairly support[.] . . . [W]e will defer to the district
    courts judgment so long as it falls within the realm of these rationally available
    choices. United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). The
    fact that [we] might reasonably have concluded that a different sentence was
    appropriate is insufficient to justify reversal of the district court. Gall v. United
    States, 552 U.S. 38, 51 (2007). Defendants failure to heed the district courts
    warning that this was [a]bsolutely [his] last chance to avoid incarceration, R.,
    Vol. 3 at 11, together with his history of repeated relapses, justifies the sentence
    imposed. Defendant has not overcome the presumption that his within-guideline
    sentence fell within the realm of rationally available choices.

    -5-

    IV.

    CONCLUSION
    We AFFIRM.
    ENTERED FOR THE COURT

    Harris L Hartz
    Circuit Judge

    -6-

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