UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff – Appellee,

v. JOSHUA SETH WROBEL, Defendant - Appellant. No. 11-5051 (N.D. Okla.) (D.C. No. 4:03-CR -00121-JHP-1)

ORDER AND JUDGMENT *

Before O'BRIEN , McKAY , and TYMKOVICH , Circuit Judges.

Joshua Seth Wrobel was sentenced to 12 months imprisonment following the revocation of his supervised release. He claims his sentence is substantively unreasonable. We affirm.

* *The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is submitte d for decision on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### January 31, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND In February 2004, Wrobel pled guilty to interference with flight crew members and attendants in violation of 49 U.S.C. § 46504. The indi ctment alleged he “unlawfully intimidated flight attendants . . . by refusing to remain in his seat wh en instructed by the lead flight attendant . . . , verbally abusin g flight attendants, a nd by approaching flight attendants in a threatening manner while demandi ng to be served alcoho l . . . .” (R. at 15.) He was sentenced to three years probation. He violated the conditions of his probation by failing to submit m onthly reports, notify his proba tion officer of a change of residence and submit to drug testing. As a result, in June 2006, the district court extended his probation to five years. In December 2008 and January 2009, Wrobel again violated the conditions of his probation; this time by failing to submit to dr ug testing and testing positive for cocaine, both Grade C violations. In March 2009, afte r Wrobel stipulated to these violations, the district court revoked his probation. Althou gh the sentencing guidelin es suggested a 3 to 9 month term of imprisonment, the court impo sed a sentence of 24 months to allow him to participate in the Bureau of Prisons (B OP) substance abuse treatment program. He was also sentenced to a 24-month term of supervised release. We affirmed. See United States v. Wrobel , 361 Fed. Appx. 939, 939 (10th Cir. 2010). Wrobel was released from pr ison and began his new term of supervised release on September 9, 2010. He tested positive fo r cocaine on January 3, 2011, and later contacted his probation officer and admitted to using cocaine on or about February 18 and 19, 2011. The probation office sought revocation of his supervised release and- 3 - prepared a “Supervised Release Revocation/Se ntencing Memorandum.” (Supp. R. Vol. 3 at 1.) It determined his supervis ed release violations were Grade B violations. See USSG §7B1.1(a)(2) 1 The statutory maximum sentence was 24 months imprisonment but with Wrobe l’s Criminal History Category of I, the recommended guideline sentencing range was 4 to 10 months imprisonment. See USSG §7B1.4(a). The probation office suggested a sentence outside the recommended guideline range up to the statutory maximum “may be necessary to deter the defendant from further involvement with cocaine and in still a respect for the law.” ( Id. at 7.) It noted (1) Wrobel’s “pattern of behavior, exemplified by continued substance abuse, . . . denote[d] a lack of respect for the law wh ich [neither] the Court nor the Probation Office ha[d] . . . been able to deter thus far,” (2) his crim inal history which included three controlled substance offenses involving cocaine, and (3) his failed attempts with substance abuse treatment. ( Id. ) The court revoked Wrobel’s supervised re lease. Wrobel sought a non-prison sentence to allow him to participate in inpatient substance abuse treatment. He made that request because he was not placed in the BO P’s substance abuse treatment program as anticipated when he was previo usly sentenced to 24 months imprisonment. He claimed to be a good probationer with an addiction needing treatment. The court imposed a 12-month sentence to be followed by a 24-month term of

1 Wrobel was sentenced pursuant to th e 2010 edition of the United States Sentencing Commission Guidelines Manual. A ll citations to the guidelines in this decision refer to the 2010 guide lines unless otherwise indicated.- 4 - supervised release. While it recognized Wrobel suffered fro m an addiction, it was also “frustrat[ed]” that the case had been “going on since 2003.” 2 (Supp. R. Vol. 2 at 14.) It also acknowledged that he had not received treatment in the BOP’s program the last time he was in prison but noted he had had other opportunities fo r treatment and counseling. The court observed a disturbing “trend”: [Y]ou’re blaming this on I didn’t get a 500 hour treatment, my probation officer is not here to say g ood things about me. I’ve been here through all of this, and ha ve heard the good things that have been said. And I’m just concerned that that’s just another . . . delay . . . . This is not going to meet with your request, but I want you to know . . . I suspect that you are frustrated, but you’re not any more frustrated tha[n] I am that whatever is happening is not working. But I’m holding you primarily responsible. [The fact you did not receive the treatment from the BOP] can’t be used as a crutch. I mean, you’re released and there [have] been opportunities for at least counseling . . . . I know from experience working with a lot of people that addiction is not easy to deal with, but it’s not easy for the Court to deal with either becau se each person that comes before me is in a little bit different situation. But my . . . comm itment to everybody that comes is I’m not going to quit tryi ng to deal with this thing. But I think you need—I think there’s every reason that you should be sentenced to incarceration, and then, when y ou’re released, we’ll start again. (Supp. R. Vol. 2 at 14-15.) Considering the factors set forth in 18 U.S.C. § 3553(a) and the Chapter 7 policy statements, the court determ ined a sentence above the re commended advisory range was appropriate in light of the nature and circumst ances of the rule violations and the history and characteristics of the defendant. It was also necessary to “pro mote respect for the

2 The conduct underlying Wrobel’s offens e for interfering with flight crew members and attendants occurred in August 20 03. The record indicates that conduct was caused in large part by Wrobel ’s alcohol and cocaine abuse.- 5 - law, provide just punishment for the viola tions, and deter the defendant from cocaine possession and use”: The current violation indicates a continued pattern of behavior by this defendant. Specifically, this is his second revocation for cocaine abuse after being afforded inpatient treatm ent on two occasions and outpatient treatment on two occasions. The defenda nt was participating in outpatient treatment when the current violation occurred. The Court has imposed a term of supervised release with specia l conditions to assist the defendant in his reentry to society, to protect the public, to control th e risks associated with drug and alcohol abuse, and to provide the defendant with necessary correctional counseling. ( Id. at 17-18.) II. DISCUSSION Wrobel does not challenge the revocation of his supervised release. Rather, he argues his 12-month sentence is unreasonabl e in light of the guidelines’ recommended sentencing range (4 to 10 months) and the fa cts and circumstances of the case. He characterizes his conduct as “simple rule vi olations” for which the sentencing guidelines have deemed a 4 to 10 month sentence appropriate. 3 (Appellant’s Br. at 5.) He also claims the sentence does not fit the crime as hi s rule violations stem from his addiction to cocaine. He maintains he is not a threat to society. “We review all sentences, including those imposed for violations of supervised release, for reasonableness. Substantive reasonableness involves the length of the

3 Wrobel states in his brief that his vi olations were Grade C violations and the recommended guideline range was 3 to 9 months imprisonment. It appears he may be confusing this case with the revoca tion of his probation in 2009. See Wrobel , 361 Fed. Appx. at 940. In any event, he is mistak en. The probation depa rtment determined the violations were Grade B violations and th e recommended imprisonment range was 4 to 10 months. Wrobel did not obje ct to these calculations.- 6 - sentence imposed and is reviewed unde r an abuse-of-discretion standard.” 4 United States v. Rausch , 638 F.3d 1296, 1302 (10t h Cir. 2011) (citation omitted). “A district court abuses its discretion when it renders a judgmen t that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Landers , 564 F.3d 1217, 1224 (10th Cir. 2009) (quotations omitted); see also United States v. Ortiz , 804 F.2d 1161, 1164 n.2 (10th Cir. 1986) (“Under the abuse of discretion st andard, a trial court’s decision will not be disturbed unless the appellate court has a defin ite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.”). We see no abuse of discre tion in the court selecting a sentence two months above the top of the suggested range. The court was intimately fam iliar with Wrobel’s case, having presided over his two previous probation viola tions. While acknowledging Wrobel’s cocaine addiction, it also noted he had co ntinued to abuse cocaine despite being afforded opportunities for treatment. The court was also disturbed by Wrobel’s attemp t to blame his behavior on

4 It appears Wrobel is challenging only the length or substantive reasonableness of his sentence. However, in doing so, he argues the district court did not state a rationale for his sentence—a procedural reasonableness ar gument. To the extent he is claiming his sentence is procedurally unreasonable, our re view is for plain erro r because he did not raise a procedural objection with the district court. United States v. Steele , 603 F.3d 803, 808 (10th Cir. 2010). We see no error. “In imposing a sentence following revocation of supervised release, a district court is re quired to consider both the policy statements contained in Chapter 7 of the sentencing guid elines, as well as a number of the factors provided in 18 U.S.C. § 3553(a).” Id. (quotations omitted). Here, the district court considered the Chapter 7 policy statements as well as the § 3553(a) factors, including the nature and circumstances of the rule viola tions, the history and characteristics of the offender and the need for th e sentence to promote respect for the law, provide just punishment and afford adequate deterrence to criminal conduct.- 7 - his failure to receive treatment in th e BOP’s drug treatment program. These circumstances—repeated criminal behavior and lack of responsi bility—warranted a 12- month term of imprisonment to promote respect for the law, provide just punishment and afford an adequate deterrent. There is no record evidence of any independent attempt by Wrobel to deal with his obvious addiction problem. He seems to think the probation office is primarily responsible for his recovery and his only obligation is to passively (and marginally) comply with the program established for him. He is mistaken. Recovery is a matter primarily in the hands of the addic t; the probation office is only a helpmate, offering guidance and assistance. Had the record demonstr ated individual initiative by Wrobel the results might well have been different. AFFIRMED

. Entered by the Court: Terrence L. O’Brien United States Circuit Judge