*This order and judgment is not binding precedent, except under the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 judgments; nevertheless, an order

and judgment 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

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, this 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). The case is

therefore ordered submitted without oral argument.

In October 2000, appellant Misty Tedford pleaded guilty to one count of

conspiracy to possess methamphetamine with intent to distribute, in violation of
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21 U.S.C. § 846. Tedford was sentenced to a thirty-six-month term of

imprisonment and a sixty-month term of supervised release. 

Tedford began serving her term of supervised release on September 16,

2002. On April 7, 2003, the United States Probation Office filed a petition in

federal district court recommending that Tedford’s supervised release be revoked. 

The petition alleged that Tedford had violated four conditions of her release: (1)

she had been convicted of a state crime while on supervised release, (2) she

failed to notify her probation officer within seventy-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 petition was held on June 

3, 2003. At the hearing, Tedford stipulated that she had violated the terms of her

supervised release. After questioning Tedford, the district court concluded that

sufficient evidence existed to establish the violations set forth in the Petition and

it revoked Tedford’s term of supervised release. Although the United States

Sentencing Commission’s policy statement applicable to sentences to be imposed

following the revocation of supervised release recommended a sentence of five to

eleven months’ imprisonment, U.S.S.G. § 7B1.4(a), the court sentenced Tedford

to forty-eight months’ imprisonment. 
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In this appeal, Tedford argues that the district court abused its discretion

when it imposed a sentence in excess of the range recommended in the

Sentencing Guidelines policy statement. “If the district 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 Chapter Seven of the

Sentencing Guidelines are merely advisory, the district court must consider them

when it imposes punishment for violations of conditions 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 district court did consider the policy

statements. It referenced them immediately prior to imposing the sentence, and

informed Tedford during the colloquy that the recommended sentencing range

was five to eleven months. However, in the case of a revocation of supervised

release where the sentence imposed is outside the range 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 described.” Further, before imposing

a sentence, the district court must also adequately consider the factors set forth in
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18 U.S.C. § 3553(a). We have held that the court need 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 explain 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 incarceration, a sentence clearly

different from that recommended in the applicable Sentencing Guidelines policy

statement. After delineating the violations to which Tedford stipulated and

hearing testimony on Tedford’s current circumstances, the court simply stated, “it

is the judgment of this Court that the term of supervised release previously

imposed in case number CR-000061-003 is revoked and you are hereby

committed to the custody of the Bureau of Prisons to be imprisoned for a term of

48 months.” 

“[W]here there is no record of the judge’s decisionmaking process, our

review loses its appellate character and becomes instead 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 resentence Tedford and to state on
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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