* The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### OCT 27 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. HAROLD VINCENT ROBINSON, Defendant - Appellee. No. 03-4296 (D.C. No. 2:01-CR-267-DAK)

(D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

Harold Vincent Robinson appeals his sentence of eig hteen months imprisonment followed by thirty-six months of super vised release for violating the conditions of his supervised release. Robinson argues on appeal that his- 2 -

sentence is plainly unreasonable. We exercise juri sdiction pursuant to 28 U.S.C. § 1291 and AFFIRM

. In May 2001, Robinson was indicted for one count ofpossession of a shortbarreled shotgun in violation of 26 U.S.C. § 5861(d ). Robinson pled guilty and the district court sentenced him to forty-two month s of probation with a special condition that Robinson spend the first six months of his probation in a halfway house. This sentence reflected a seven level downw ard departure by the district court, reducing Robinson’s offense level from a lev el fifteen, as calculated in his presentence report, to a level eight. Robinson’s probation officer filed a petition for a n arrest warrant for Robinson in April 2003 for Robinson’s alleged violation of the conditions of his probation. The district court held a probation-vio lation hearing in November 2003, during which Robinson acknowledged his guilty plea to a state court charge of assault with substantial bodily injury. Robinso n’s probation was revoked in December 2003, and the district court sentenced him to serve eighteen months in prison, with thirty-six months of supervised releas e to follow. This sentence represents an upward departure from the recommended Guidelines range of three to nine months. Robinson appeals this sentence, ar guing that the district court erred by not properly considering the sentencing fa ctors listed in 18 U.S.C. § 3553(a).- 3 -

This court will review a sentence only in limited c ircumstances, including when a sentence was “imposed for an offense for whi ch there is no sentencing guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a)(4). “Because there is no applicable sentencing guideline for the sente nce to be imposed after a violation of supervised release,” we review the sen tence to determine if it is “plainly unreasonable.” United States v. Kelley , 359 F.3d 1302, 1304 (10th Cir. 2004). We will not reverse a sentence imposed afte r revocation of supervised release if the record reflects that the sentence is “reasoned and reasonable.” United States v. Lee , 957 F.2d 770, 774 (10th Cir. 1992). Accepting th e district court’s findings of fact, unless clearly erroneous, we will review its interpretation of the Sentencing Guidelines de novo. Kelley , 359 F.3d at 1304. A district court may revoke a term of supervised re lease and require the defendant to serve time in prison if the court find s by a preponderance of the evidence that the defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3). Pursuant to 18 U.S.C. § 3583(e), the c ourt may revoke a term of supervised release only after considering the facto rs set forth in § 3553(a). Those factors include, inter alia, 1) the nature and circ umstances of the offense, 2) the history and characteristics of the defendant, 3) th e need for the sentence to afford adequate deterrence to criminal conduct, 4) the nee d to protect the public from further crimes of the defendant, 5) the need to pro vide the defendant with needed- 4 -

training, medical care, or correctional treatment, and 6) the sentencing range established under the sentencing guidelines or the policy statements applicable to a violation of supervised release. Kelley , 359 F.3d at 1304. Most significant to the matter before us, a distric t court must consider the policy statements in Chapter 7 of the Sentencing Gu idelines before imposing a sentence for violating the conditions of supervised release. § 3553(a)(4)(B); Lee , 957 F.2d at 774 (“[policy statements] must be consi dered by the trial court in its deliberations concerning punishment for violation o f conditions of supervised release.”). The relevant policy statements “are ad visory rather than mandatory in
nature.” Lee , 957 F.2d at 773. For example, U.S.S.G. § 7B1.4 r ecommends terms of imprisonment based on the defendant’s criminal h istory category and the grade of the violation for which the defendant was senten ced to supervised release. District courts must consider Chapter 7’s policy st atements along with the factors listed in § 3553(a) before issuing a senten ce. Sentencing judges need not consider each factor individually, “[r]ather it is enough if the district court considers § 3553(a) en masse and states its reasons for imposing a given sentence.” Kelley , 359 F. 3d at 1305.
In Lee , despite the sentencing court’s omission of any re ference to § 7B1.4 in its order, we held that the court adequately con sidered the Chapter 7 policy statements because the court stated at the revocati on hearing: “I do not believe- 5 -

that the policy statements cited by counsel [U.S.S. G. Chapter 7] are mandatory.” 957 F.2d at 775. Additionally, because the sentenc ing court delineated the factors it considered for sentencing, we held that the cour t satisfied the requirements of § 3583(e). In United States v. Brooks , 976 F.2d 1358 (10th Cir. 1992), we held that a district court’s decision to revoke a term o f supervised release and impose prison time was “reasoned and reasonable” because t he court stated the basis for its sentencing determination and said that “the com missions’s [sic] policy statements are only that, they are only policy stat ements, they are not binding on the court.” 976 F.2d at 1359. Finally, in Kelley , the district court “noted that it considered the policy statements in Chapter 7,” Kel ley , 359 F.3d at 1304, and “explained the other factors it took into account,” Id. at 1305, leading us to conclude that the “sentence was reasoned and reason able . . . .” Id. The district court in the instant case relied on Ch apter 7 of the Sentencing Guidelines more explicitly than the courts in Lee , Brooks , or Kelley did. The court began the sentencing hearing by noting: “[w]e have an original Offense Level of 15 and original Criminal History Category of I, a grade violation C, a guideline range of three to nine.” (III R. at 3.) The government referred the court to Application Note 4 in the commentary to § 7B1.4 (III R. at 6-8) which states: “[w]here the original sentence was the result of a downward departure . . . that resulted in a sentence below the guideline range ap plicable to the defendant’s- 6 -

underlying conduct, an upward departure may be warr anted.” U.S.S.G. § 7B1.4, cmt. n.4. When Robinson argued that the recommende d sentencing range takes into account his guilty plea to the state charge, t he court responded, “[w]hat it doesn’t take into account is the downward departure he previously received with an admonition he stay out of trouble, which he obvi ously has not done.” (III R. at 12.) Finally, the court stated that it formulated Robinson’s sentence “under 7B1.4, Application Note 4.” (III R. at 16.) The district court fulfilled the requirements of §§ 3583(e) and 3553(a). Especially because we do not “demand that the distr ict court recite any magic words to show us that it fulfilled its responsibili ty to be mindful of the factors that Congress has instructed it to consider,” Kelle y , 359 F.3d at 1305 (quotations omitted), we conclude that a sentence of eighteen m onths in prison with thirty-six months of supervised release to follow is reasoned and reasonable in this case. Accordingly, we AFFIRM the sentence imposed by the district court.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge