* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### MAR 8 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-7070

v. (D.C. No. 00-CR-61-S) MISTY LEE TEDFORD, (E.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

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

After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materially assist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. In October 2000, appellant Misty Tedford pleaded gu ilty to one count of conspiracy to possess methamphetamine with intent t o distribute, in violation of-2-

21 U.S.C. § 846. Tedford was sentenced to a thirty -six-month term of imprisonment and a sixty-month term of supervised r elease. Tedford began serving her term of supervised releas e on September 16, 2002. On April 7, 2003, the United States Probatio n Office filed a petition in federal district court recommending that Tedford’s supervised release be revoked. The petition alleged that Tedford had violated fourconditions of her release: (1) she had been convicted of a state crime while on su pervised release, (2) she failed to notify her probation officer within seven ty-two hours of her arrest on the state charge, (3) she failed seven drug tests, and (4) she had continued a relationship with a convicted felon. A final hearing and sentencing on the revocation pe tition was held on June 3, 2003. At the hearing, Tedford stipulated that s he had violated the terms of her supervised release. After questioning Tedford, the district court concluded that sufficient evidence existed to establish the violat ions set forth in the Petition and it revoked Tedford’s term of supervised release. A lthough the United States Sentencing Commission’s policy statement applicable to sentences to be imposed following the revocation of supervised release reco mmended a sentence of five to eleven months’ imprisonment, U.S.S.G. § 7B1.4(a), the court sentenced Tedford to forty-eight months’ imprisonment.-3-

In this appeal, Tedford argues that the district co urt abused its discretion when it imposed a sentence in excess of the range r ecommended in the Sentencing Guidelines policy statement. “If the di strict court imposes a sentence in excess of that recommended in Chapter 7, we will not reverse if it can be determined from the record to have been reasoned and reasonable.” United
States v. Hurst , 78 F.3d 482, 483 (10th Cir. 1996) (quotation omitted). Tedford asserts that the sentence imposed is unreasonable. Although the policy statements contained in ChapterSeven of the Sentencing Guidelines are merely advisory, the dist rict court must consider them when it imposes punishment for violations of condit ions of supervised release. United States v. Lee , 957 F.2d 770, 774 (10th Cir. 1992). It is clear from the transcript of the sentencing hearing that the distr ict court did consider the policy statements. It referenced them immediately prior t o imposing the sentence, and informed Tedford during the colloquy that the recom mended sentencing range was five to eleven months. However, in the case of a revocation of supervised release where the sentence imposed is outside the r ange described in an applicable sentencing guideline or policy statement , 18 U.S.C. § 3553(c)(2) requires the district court to state in open court “the specific reason for the imposition of a sentence different from that descri bed.” Further, before imposing a sentence, the district court must also adequately consider the factors set forth in-4-

18 U.S.C. § 3553(a). We have held that the court n eed not make specific factual findings relating to each factor, United States v. Rose , 185 F.3d 1108, 1111 (10th Cir. 1999), but it does have an obligation to expla in its sentencing decision on the record. 18 U.S.C. § 3553(c); United States v. Zanghi , 209 F.3d 1201, 1204 (10th Cir. 2000). In this case, the district court failed to give any explanation as to why it sentenced Tedford to a 48-month term of incarcerati on, a sentence clearly different from that recommended in the applicable S entencing Guidelines policy statement. After delineating the violations to whi ch Tedford stipulated and hearing testimony on Tedford’s current circumstance s, the court simply stated, “it is the judgment of this Court that the term of supe rvised release previously imposed in case number CR-000061-003 is revoked and you are hereby committed to the custody of the Bureau of Prisons t o be imprisoned for a term of 48 months.” “[W]here there is no record of the judge’s decision making process, our review loses its appellate character and becomes in stead a post hoc assumption of the district court’s responsibilities.” Zanghi , 209 F.3d at 1204. The district court’s failure to provide any explanation for the sentence it imposed renders appellate review of Tedford’s sentence impossible. We therefore remand this matter to the district court with instructions to r esentence Tedford and to state on-5-

the record the reasons for the sentence it imposes, including, if applicable, an explanation consistent with the mandate of 18 U.S.C . § 3553(c)(2).
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge