UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

LOWELL D. CHATBURN, 

 Defendant-Appellant. 

No. 12-1040 

(D.C. No. 1:11-CR-00190-WJM-1) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before KELLY, O’BRIEN, and MATHESON, Circuit Judges. 

 

 Lowell D. Chatburn appeals the district court’s imposition of a five-month 

prison sentence following revocation of his supervised release. He contends that the 

sentence was substantively unreasonable. We exercise jurisdiction pursuant to 

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 11, 2012

Elisabeth A. Shumaker 

Clerk of Court
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I. BACKGROUND 

 Mr. Chatburn worked as an attorney in Hawaii until he was disbarred in 2002. 

In 2006, he was indicted for bank fraud based on his forging the signatures of three 

clients and converting their funds for his personal use in 2001 and 2002. In 2009, he 

entered a guilty plea to the bank fraud charge. Pursuant to the applicable United 

States Sentencing Guidelines, the advisory sentencing range was 10 to 16 months of 

imprisonment plus a term of supervised release. Mr. Chatburn received a downward 

variant sentence of three months in prison plus a five-year term of supervised release. 

The special conditions of Mr. Chatburn’s supervised release were designed to 

prevent his access to others’ financial records and information. One of the special 

conditions required him to “notify the Probation Office of any contemplated 

employment and . . . obtain approval from the Probation Office for all employment.” 

R. Vol. I at 7. Other special conditions required him to submit written reports and 

follow his probation officer’s instructions. Mr. Chatburn moved to Boulder, 

Colorado, and began his term of supervised release on August 14, 2009. 

While on supervised release, Mr. Chatburn was employed by Paycheck Loans 

in Boulder from August 2009 until September 2010, when the company closed its 

office. He reported to his probation officer, Ms. Oppenheimer, that his job duties 

involved customer relations and business advertising, and that he did not have access 

to any customer information. In fact, he prepared tax returns for customers without 

obtaining Ms. Oppenheimer’s approval. 
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On November 30, 2010, Mr. Chatburn registered Rapidtax, Inc. with the 

Colorado Secretary of State, but he did not advise Ms. Oppenheimer despite her 

instructions to tell her if he registered or established a business. Doing business as 

Rapidtax, Inc., Mr. Chatburn began preparing tax returns in February 2011. He did 

not obtain Ms. Oppenheimer’s approval for this work. In addition, despite her 

direction on March 28, 2011, to cease preparing tax returns, he continued to do so. 

Mr. Chatburn began receiving unemployment benefits in approximately 

October 2010. He failed to comply with Ms. Oppenheimer’s instructions to search 

for full-time employment and to submit written reports as required by the terms of his 

supervised release. 

On July 1, 2011, Ms. Oppenheimer petitioned the district court to revoke his 

supervised release. Mr. Chatburn pled guilty to the following five Grade C violations 

of his supervised release: (1) failure to notify the probation office about and obtain 

approval for registering Rapidtax, Inc. and preparing tax returns under that name, 

(2) failure to obtain approval from the probation office for his employment with 

Paycheck Loans wherein he prepared tax returns for customers, (3) false statements 

to his probation officer about his duties at Paycheck Loans, (4) failure to submit 

written reports pertaining to the months of March and April 2011, and (5) failure to 

follow the instructions of his probation officer to search for full-time employment 

and submit monthly job search forms. A Supervised Release Violation Report 

calculated the advisory sentencing range under the Sentencing Commission’s policy 

statements to be three to nine months in prison plus a term of supervised release. 
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Following a hearing, the district court sentenced Mr. Chatburn to five months in 

prison followed by three years of supervised release.1

 

 Mr. Chatburn appeals, arguing that the sentence was substantively 

unreasonable for two reasons. First, he argues that the district court considered the 

seriousness of the offense, a sentencing factor not specified as pertinent to revocation 

of supervised release. Second, he argues that the district court’s emphasis on a 

perceived need to deter criminal conduct and to protect the public from further 

crimes was manifestly unreasonable and resulted in a sentence that was 

impermissibly harsh. 

II. DISCUSSION 

 “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. We will not reverse a sentence following revocation of supervised release if 

the record establishes the sentence is reasoned and reasonable.” United States v. 

Handley, 678 F.3d 1185, 1188 (10th Cir. 2012) (citation omitted) (internal quotation 

marks omitted). 

 

1

 It appears from the record that Mr. Chatburn has completed the five-month 

prison term imposed on revocation of his supervised release and is now serving the 

additional three-year term of supervised release. The case is not moot because, if he 

were to prevail on his sentencing-length appeal, the district court could provide 

effective relief on remand by shortening his term of supervised release. United States 

v. Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007). 
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A. Seriousness of the Offense and Procedural Reasonableness

Pursuant to 18 U.S.C. § 3583(e), “[b]efore deciding whether to revoke a term 

of supervised release and determining the sentence imposed after revocation, the 

district court must consider the factors set out in 18 U.S.C. § 3553(a)(1), (a)(2)(B), 

(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” United States v. McBride, 

633 F.3d 1229, 1231 (10th Cir. 2011) (citing 18 U.S.C. § 3583(e)). 

In his first argument, Mr. Chatburn objects that the district court considered 

18 U.S.C. § 3553(a)(2)(A)—the seriousness of the underlying offense—a factor not 

included in § 3583(e). Therefore, he argues, the district court committed reversible 

error. 

 Mr. Chatburn has characterized the district court’s consideration of an 

improper factor as a substantive-reasonableness issue. We view this alleged error as 

a challenge to the procedural reasonableness of the sentence. United States v. Smart, 

518 F.3d 800, 803 (10th Cir. 2008) (stating that a form of procedural error is 

“consideration by the district court of legally erroneous factors”); see also United 

States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012) (evaluating district court’s 

consideration of an impermissible sentencing factor as procedural error). 

Because Mr. Chatburn “failed to object on this basis in the district court, plain 

error review now applies.” Mendiola, 696 F.3d at 1036. “Our plain error standard is 

satisfied when there is (1) error, (2) that is plain, which (3) affects substantial rights, 

and which (4) seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir. 2009) 
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(internal quotation marks omitted). A defendant is not entitled to relief if he fails to 

establish one or more of those elements. See United States v. Romero, 491 F.3d 

1173, 1179 (10th Cir. 2007) (holding defendant’s concession that he did not allege 

any error that affected his substantial rights defeated claim of plain error). 

 Mr. Chatburn has failed to establish that any error was plain. The Tenth 

Circuit has not addressed this issue, and there is no controlling circuit or Supreme 

Court precedent on point. “If neither the Supreme Court nor the Tenth Circuit has 

ruled on the subject, we cannot find plain error if the authority in other circuits is 

split.” United States v. Story, 635 F.3d 1241, 1248-49 (10th Cir. 2011) (internal 

quotation marks and brackets omitted). 

The circuits are divided on whether consideration of a § 3553(a)(2)(A) factor 

is error. Compare United States v. Miller, 634 F.3d 841, 844 (5th Cir.) (holding “that 

it is improper for a district court to rely on § 3553(a)(2)(A) for the modification or 

revocation of a supervised release term”), cert. denied, 132 S. Ct. 496 (2011); United 

States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006) (noting in dicta that § 3583(e) 

excludes consideration of the § 3553(a)(2)(A) factors in devising a revocation 

sentence); United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006) (“Given that 

§ 3553(a)(2)(A) is a factor that Congress deliberately omitted from the list applicable 

to revocation sentencing, relying on that factor when imposing a revocation sentence 

would be improper.”), with United States v. Young, 634 F.3d 233, 241 (3rd Cir.) (“It 

is . . . plain to us that a district court’s consideration of, and explicit reference to, the 

§ 3553(a)(2)(A) factors in imposing a sentence for the violation of supervised release 
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is not a procedural error that renders the sentence per se unreasonable.”), 

cert. denied, 132 S. Ct. 204 (2011); United States v. Lewis, 498 F.3d 393, 399-400 

(6th Cir. 2007) (holding “that it does not constitute reversible error to consider 

§ 3553(a)(2)(A) when imposing a sentence for violation of supervised release, even 

though this factor is not enumerated in § 3583(e)”); United States v. Williams, 

443 F.3d 35, 47 (2d Cir. 2006) (noting that § 3583 “does not state that any particular 

factor cannot be considered, and [interpreting] § 3583(e) simply as requiring 

consideration of the enumerated subsections of § 3553(a), without forbidding 

consideration of other pertinent factors”). 

“[A] circuit split is strong evidence that an error is not plain,” Story, 635 F.3d 

at 1248, but it “is not dispositive on the question of whether an error is plain,” id. at 

1249. Nonetheless, the law is sufficiently unsettled for us to conclude that any error 

here was not plain. 

We further conclude that even if error were plain, the district court’s mention 

of the seriousness of the offense did not affect Mr. Chatburn’s substantial rights. 

“An error only affects substantial rights when it is prejudicial, meaning that there is a 

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

would have been different.” United States v. Penn, 601 F.3d 1007, 1012 (10th Cir. 

2010) (internal quotation marks omitted). 

The district court linked the underlying offense, which involved fraud and 

deceit, to Mr. Chatburn’s failure to disclose pertinent information to his probation 

officer. This analysis was part of the court’s review of the nature and circumstances 
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of the offense, a factor the district court properly considered. See § 3583(e) 

(directing district court to consider § 3553(a)(1), which in turn allows consideration 

of “the nature and circumstances of the offense”). Nothing indicates that the result of 

the proceeding would have been different absent the court’s consideration of the 

seriousness of the underlying offense. Accordingly, no plain procedural error 

occurred. 

B. Nature of Supervised Release Violations and Substantive Reasonableness 

 Mr. Chatburn also contends that his sentence was substantively unreasonable 

because his supervised release violations were not criminal and because he had not 

committed any crime since his 2001-2002 conduct resulting in the bank fraud charge. 

He therefore asserts that the district court improperly based his sentence on the need 

to deter criminal conduct and protect the public from further crimes when there was 

no criminal conduct on his part, even though § 3583(e) directs the district court to 

apply those two sentencing factors. This was, he says, substantively unreasonable 

and resulted in a sentence that was impermissibly harsh. 

Mr. Chatburn also points out that his prison sentence for violating supervised 

release was longer than the sentence for the underlying conviction.2

 He further 

argues that during his supervised release, he was employed, met his financial 

 

2

 We note that Mr. Chatburn’s original three-month sentence varied from his 

advisory sentence range of 10 to 16 months and that the Guidelines provide: “Where 

the original sentence was the result of a downward departure . . . that resulted in a 

sentence below the guideline range applicable to the defendant’s underlying conduct, 

an upward departure may be warranted.” USSG 7B1.4, Application Note 4. 
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obligations, reestablished his relationship with his children, and succeeded in the 

court-ordered mental health treatment. His claim is “merely that the sentence is 

unreasonably long, [so] we do not require the defendant to object in order to preserve 

the issue.” See United States v. Mancera-Perez, 505 F.3d 1054, 1058 (10th Cir. 

2007) (internal quotation marks omitted). 

“In assessing what sentence would be reasonable for violation of a condition 

of supervised release, the district court has been instructed by Congress to consider 

the applicable policy statements issued by the Sentencing Commission.” McBride, 

633 F.3d at 1232 (internal quotation marks and ellipsis omitted). “[W]e will defer to 

the district court’s judgment so long as it falls within the realm of the[] rationally 

available choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). 

“[A] revocation-of-supervised-release sentence within the range suggested by the 

Commission’s policy statements” is presumed to be reasonable. McBride, 633 F.3d 

at 1233. The presumption, however, may be rebutted by demonstrating that the 

sentence is unreasonable in light of the applicable sentencing considerations. Id. 

Mr. Chatburn’s sentence is entitled to the presumption of reasonableness. The 

recommended sentencing range was three to nine months of imprisonment; he was 

sentenced to five months. He has not rebutted the presumption. Rather, he argues 

that the district court should have weighed the mitigating evidence more heavily. He 

does not dispute that the district court considered the sentence imposed for the 

underlying conviction, Mr. Chatburn’s personal circumstances, or his mental-health 

treatment. Mr. Chatburn “must do more than show that his preferred sentence was a 
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reasonable one. . . . To obtain relief he must show that the actual sentence imposed 

was outside this range of reasonableness.” Id. at 1232. He has not made the required 

showing to demonstrate that his sentence was substantively unreasonable. 

III. CONCLUSION 

The judgment of the district court is AFFIRMED. 

 ENTERED FOR THE COURT 

 Scott M. Matheson, Jr. 

 Circuit Judge