* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 29 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JASON NICHOLSON, Defendant-Appellant. No. 97-1043 (D.C. No. 95-CR-87-S) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.

Appellant/Defendant Jason Nicholson appeals from th e district court's order-2-

revoking his supervised release. We exercise juris diction pursuant to 28 U.S.C. § 1291, and affirm.

Mr. Nicholson pled guilty in the United States District Court for the District of Colorado to a one-count information cha rging him with conspiracy to possess with the intent to distribute cocaine, in v iolation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846 (1994). On April 1 8, 1996, the district court sentenced Mr. Nicholson to a term of four months imprisonment to be followed by a three-year term of supervised release. Mr. Ni cholson completed his term of imprisonment on June 28, 1996, and his term of supe rvised release commenced on that date.

Thereafter, on November 20, 1996, Mr. Nicholson's p robation officer filed a motion to revoke Mr. Nicholson's supervised relea se. The petition alleged Mr. Nicholson had violated his supervised release by: (1) operating a motor vehicle while his license was suspended; (2) failing to fol low certain instructions issued by his probation officer; and (3) failing to make m onthly child support payments as directed by the district court. On January 16, 1997, the district court held a hearing on the petition to revoke Mr. Nicholson's s upervised release. At the1 A Grade C violation of supervised release is "con duct constituting (A) a

federal, state, or local offense punishable by a te rm of imprisonment of one year or less; or (B) a violation of any other condition of supervision." U.S.S.G. § 7B1.1(a)(3) (Nov. 1995).

-3- hearing, the court determined Mr. Nicholson had com mitted grade C violations 1 of his supervised release and sentenced Mr. Nicholson to a ten-month term of imprisonment to be followed by a supervised release term of twenty-nine months and fourteen days.

On appeal, Mr. Nicholson asserts only one issue. H e contends the district court abused its discretion by sentencing him on th e basis of criteria outside of 18 U.S.C.A. § 3553 (1994 and Supp. 1997). According t o Mr. Nicholson, the court improperly sentenced him on the basis of his attitu de, and, in doing so, ignored the sentencing factors to be considered in imposing a sentence under 18 U.S.C.A. § 3553. We review a district court's order revokin g a defendant's supervised release for an abuse of discretion, although we rev iew de novo legal questions relating to the applicability of 18 U.S.C.A. § 3553 and 18 U.S.C.A. § 3583 (Supp. 1997). See United States v. McAfee , 998 F.2d 835, 837 (10th Cir. 1993). Generally, we will not reverse a sentence imposed f ollowing the revocation of a defendant's supervised release "if it can be determ ined from the record to have been reasoned and reasonable." United States v. Lee , 957 F.2d 770, 774 (10th-4-

Cir. 1992).

Under 18 U.S.C.A. § 3583(e), a court may, after con sidering the factors set forth in 18 U.S.C.A. § 3553(a), "revoke a term of s upervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release ...." 18 U.S.C.A. § 3553(a) provides, in p ertinent part, the court "shall consider" the following factors in determining the particular sentence to be imposed: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed -- (A) to reflect the seriousness of the offense, to p romote respect for the law, and to provide just punishmentfor the offense; (B) to afford adequate deterrence to criminal condu ct; (C) to protect the public from further crimes of th e defendant; and (D) to provide the defendant with needed educationa l or vocational training, medical care, or other correct ional treatment in the most effective manner.
"While there is no requirement that the district co urt make specific findings relating to each of the factors considered, the sen tencing court should state the-5-

reasons for its action." Lee , 957 at 774-75 (internal citation omitted); accord United States v. Dorrough , 84 F.3d 1309, 1311 (10th Cir.), cert. denied, 117 S. Ct. 446 (1996).

In the present case, the district court concluded M r. Nicholson committed three Grade C violations of his supervised release. Specifically, the court found Mr. Nicholson operated a motor vehicle without a va lid driver's license, he failed to follow the specific instructions of his probatio n officer, and he failed to support his dependents in violation of a court orde r. The court found the violations occurred over a substantial period of ti me and that Mr. Nicholson "absolutely refuses [to follow the law] because it' s not convenient for him to follow the law." The court further stated: [I]t appears that at this point in time he isn't am enable to supervision. I think the probation officer has made it clear that Mr. Nicholson's attitude makes him unavailable for further supervis ed release, although with grade C violations that is an option of this Court. It appears Mr. Nicholson needs to have a little tim e to consider whether or not he is going to continue with the att itude that he has with regard to following the rules, following the p robation officer's directions, following the Court's directions, and i t is this Court's opinion that it would be appropriate under the circ umstances that Mr. Nicholson be remanded to the custody of the United States Marshal to serve a term of confinement ... and then we will start the supervised release program over again. And give [M r. Nicholson] an opportunity to correct [his] past errors. The court then sentenced Mr. Nicholson to a ten-month term of imprisonment to-6-

be followed by a term of supervised release of twen ty-nine months and fourteen days.

Our review of the district court's statements revea ls the revocation of Mr. Nicholson's probation was both reasoned and reasonable. Although Mr. Nicholson's poor attitude was clearly considered bythe court, this was a valid consideration. 18 U.S.C.A. § 3553(a)(1) requires the court to consider the history and characteristics of the defendant. Moreover, Mr . Nicholson's attitude was not the only factor the court took into consideration. As stated, the court concluded Mr. Nicholson had committed three violations and th ese violations had occurred over a substantial period of time. The court simpl y concluded that further supervised release was not a sufficient deterrent t o Mr. Nicholson's improper conduct. The court believed that a ten-month term of imprisonment was necessary to effectively correct Mr. Nicholson's co nduct. In conclusion, we find the court considered all of the required factors in revoking Mr. Nicholson's supervised release, and the court did not abuse its discretion in sentencing Mr. Nicholson to a ten-month term of imprisonment.

Based on the foregoing reasons, we hereby AFFIRM the revocation of Mr. Nicholson's supervised release.-7- Entered for the Court

WADE BRORBY United States Circuit Judge