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 distri ct court’s impositi on of a five-month prison sentence following revocation of his supe rvised release. He contends that the sentence was substantively unr easonable. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 11, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND Mr. Chatburn worked as an attorney in Hawaii until he was disbarred in 2002. In 2006, he was indicted for bank fraud ba sed on his forging the signatures of three clients and converting their funds for his pe rsonal use in 2001 and 20 02. 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 reco rds and information. One of the special conditions required him to “notify the Pr obation Office of any contemplated employment and . . . obtain approval from th e Probation Office for all employment.” R. Vol. I at 7. Other special conditions required him to subm it written reports and follow his probation officer’s instructions. Mr. Chatburn moved to Boulder, Colorado, and began his te rm of supervised releas e on August 14, 2009. While on supervised release, Mr. Ch atburn was employed by Paycheck Loans in Boulder from August 2009 until Septembe r 2010, when the company closed its office. He reported to his probation offi cer, Ms. Oppenheimer, that his job duties involved customer relations a nd business advertising, and th at he did not have access to any customer information. In fact, he prepared tax returns for customers without obtaining Ms. Oppenheimer’s approval.- 3 - On November 30, 2010, Mr. Chatburn re gistered 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 es tablished a business. Doing business as Rapidtax, Inc., Mr. Chatburn be gan 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 prepar ing tax returns, he continued to do so. Mr. Chatburn began receiving unempl oyment benefits in approximately October 2010. He failed to comply with Ms. Oppenheimer’s inst ructions 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 peti tioned the district court to revoke his supervised release. Mr. Ch atburn pled guilty to the follo wing five Grade C violations of his supervised release: (1) failure to notify the pr obation office about and obtain approval for registering Rapidtax, Inc. a nd preparing tax return s under that name, (2) failure to obtain approval from the pr obation office for his employment with Paycheck Loans wherein he prepared tax re turns for customers, (3) false statements to his probation officer about his duties at Paycheck Loans, (4 ) failure to submit written reports pertaining to th e months of March and Apr il 2011, and (5) failure to follow the instructions of his probation o fficer to search fo r 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 ni ne months in prison plus a te rm of supervised release.- 4 - Following a hearing, the district court se ntenced Mr. Chatburn to five months in prison followed by three ye ars of supervised release. 1 Mr. Chatburn appeals, arguing that the sentence was substantively unreasonable for two reasons. Fi rst, he argues that the dist rict court considered the seriousness of the offense, a sentencing factor not specified as pertinent to revocation of supervised release. Second, he argue s 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 a nd 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 erro r and its legal conclusions de novo . We will not reverse a sentence followi ng revocation of supervised release if the record establishes the senten ce is reasoned a nd reasonable.” United States v. Handley , 678 F.3d 1185, 1188 (10th Cir. 2012) (citation omitted) (i nternal quotation marks omitted).

1 It appears from the re cord that Mr. Chatburn ha s completed the five-month prison term imposed on revocation of his s upervised 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 a ppeal, the district court could provide effective relief on remand by shortening hi s term of supervised release. United States v. Vera-Flores , 496 F.3d 1177, 1180 (10th Cir. 2007).- 5 - A. Seriousness of the Offense and Procedural Reasonableness Pursuant to 18 U.S.C. § 3583(e), “[b]ef ore deciding whether to revoke a term of supervised release and determining th e sentence imposed after revocation, the district court must consider the factors se t out in 18 U.S.C. § 355 3(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 object s 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 di strict court’s consideration of an improper factor as a substantiv e-reasonableness issue. We view this alleged error as a challenge to the procedural re asonableness 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 senten cing factor as pro cedural error). Because Mr. Chatburn “failed to object on th is 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) erro r, (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)- 6 - (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 con cession that he did not allege any error that affected his substantial ri ghts 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. “I f neither the Supreme Court nor the Tenth Circuit has ruled on the subject, we cannot find plain error if the aut hority in other circuits is split.” United States v. Story , 635 F.3d 1241, 1248-49 ( 10th Cir. 2011) (internal quotation marks and br ackets omitted). The circuits are divided on whether cons ideration of a § 3553(a)(2)(A) factor is error. Compare United St ates v. Miller , 634 F.3d 841, 844 (5th Cir.) (holding “that it is improper for a district court to re ly 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 th at 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 di strict court’s consideration of, and explicit reference to, the § 3553(a)(2)(A) factors in imposing a sentence for the violation of supervised release- 7 - 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 supervis ed 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 th at any particular factor cannot be considered , and [interpreting] § 35 83(e) simply as requiring consideration of the enum erated subsections of § 3553(a), without forbidding consideration of other pe rtinent factors”). “[A] circuit split is strong evid ence that an error is not plain,” Story , 635 F.3d at 1248, but it “is not dispositive on the que stion 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 dist rict court’s mention of the seriousness of the offense did not af fect Mr. Chatburn’s su bstantial rights. “An error only affects substan tial rights when it is prejudici al, meaning that there is a reasonable probability that, but for the erro r claimed, the result of the proceeding would have been different.” United States v. Penn , 601 F.3d 1007, 1012 (10th Cir. 2010) (internal quotati on marks omitted). The district court linked the underly ing offense, which involved fraud and deceit, to Mr. Chatburn’s failure to disclo se pertinent information to his probation officer. This analysis was part of the cour t’s review of the natu re and circumstances- 8 - of the offense, a factor the dist rict court properly considered. See § 3583(e) (directing district court to c onsider § 3553(a)(1), which in turn allows consideration of “the nature and circumstances of the offe nse”). Nothing indicates that the result of the proceeding would have been different absent the court’s consideration of the seriousness of the underlying offense. Ac cordingly, no plain procedural error occurred.
B. Nature of Supervised Release Viola tions and Substantive Reasonableness Mr. Chatburn also contends that hi s sentence was substantively unreasonable because his supervised release violations were not criminal and because he had not committed any crime since his 2001-2002 co nduct resulting in the bank fraud charge. He therefore asserts that the district c ourt 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 f actors. This was, he sa ys, substantively unreasonable and resulted in a sentence that was impermissibl y harsh. Mr. Chatburn also points out that his pr ison sentence for violating supervised release was longer than the sent ence for the underlying conviction. 2 He further argues that during his supervised releas e, 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 Guidelin es provide: “Where the original sentence was the result of a downward departur e . . . 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.- 9 - obligations, reestablished hi s relationship with his child ren, and succeeded in the court-ordered mental health treatment. His claim is “m erely that the sentence is unreasonably long, [so] we do not require the defendant to obj ect in order to preserve the issue.” See United States v. Mancera-Perez , 505 F.3d 1054, 1058 (10th Cir. 2007) (internal quotati on marks omitted). “In assessing what sentence would be r easonable for violation of a condition of supervised release, the di strict court has been instru cted by Congress to consider the applicable policy statements i ssued by the Sentencing Commission.” McBride , 633 F.3d at 1232 (internal quota tion marks and ellipsis omitte d). “[W]e will defer to the district court’s judgment so long as it falls within the real m of the[] rationally available choices.” United States v. McComb , 519 F.3d 1049, 1053 (10th Cir. 2007). “[A] revocation-of-supervis ed-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, ma y be rebutted by demonstrating that the sentence is unreasonable in light of the applicable sentencing considerations. Id. Mr. Chatburn’s sentence is entitled to th e presumption of reasonableness. The recommended sentencing range was three to nine months of imprisonment; he was sentenced to five months. He has not re butted the presumption. Rather, he argues that the district court shoul d have weighed the mitigating evidence more heavily. He does not dispute that the di strict court considered th e sentence imposed for the underlying conviction, Mr. Chatburn’s personal circumstan ces, or his mental-health treatment. Mr. Chatburn “must do more than show that his preferred sentence was a- 10 - reasonable one. . . . To obta in 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 se ntence was substant ively unreasonable.
III. CONCLUSION The judgment of the distri ct court is AFFIRMED.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge