*

 After examining the briefs and appellate record, this panel 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

therefore is ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 2 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HAROLD KELLEY,

Defendant - Appellant.

No. 03-5112

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 00-CR-100-H)

Submitted on the briefs:*

Randy Lynn, Tulsa, Oklahoma, for Defendant-Appellant.

David E. O’Meilia, United States Attorney, and Kevin Danielson, Assistant

United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

Before EBEL, HENRY and HARTZ, Circuit Judges.

EBEL, Circuit Judge.
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Defendant Harold Kelley was sentenced to an 18-month prison term after

he violated the conditions of his supervised release for a second time. Kelley now

contends that this sentence was plainly unreasonable. We disagree.

BACKGROUND

The facts relevant to this appeal are not in dispute. Kelley pled guilty to

one count of conspiracy to defraud a financial institution in violation of 18 U.S.C.

§§ 371 and 1344(1). The maximum term of imprisonment for that offense was

five years, and the guideline range for imprisonment was six to 12 months under

the circumstances. The district court sentenced Kelley to nine months

imprisonment followed by three years of supervised release.

After completing his prison term, Kelley violated the conditions of his

supervised release by failing to report his change of residence, failing to report

for substance abuse treatment, and testing positive for cocaine. For this violation,

Kelley’s supervised release was revoked and he was sentenced to another six

months imprisonment and another 30 months of supervised release.

Once again, after serving his sentence Kelley violated the terms of his

supervised release, this time by failing to report to the probation office upon

release from imprisonment. During sentencing for this violation, the government

sought a sentence without supervised release because “it would be a waste of
1

 By statute, the maximum term of imprisonment that can be imposed for

violation of supervised release is two years when the underlying offense was a

class C or D felony. 18 U.S.C. § 3583(e)(3). All revocation sentences relating to

the same underlying felony must be aggregated in calculating this two-year

statutory maximum. United States v. Swenson, 289 F.3d 676, 677 (10th Cir.

2002). Because Kelley served six months in prison after his first supervised

release revocation, the maximum term he could receive upon his second

supervised release revocation was 18 months.

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Probation’s time trying to hunt Mr. Kelley down again and again and again.” The

defense agreed that it “would probably be a good idea if there wasn’t a term of

supervised release afterwards, because apparently Mr. Kelley and supervised

release don’t get along terribly well.” The district court sentenced Kelley to 18

months imprisonment, the maximum that could be imposed upon revocation of

Kelley’s supervised release under the circumstances.

1

The district court explained that this sentence was designed to provide for

the safety of the community and also to ensure a level of respect for the

obligations Kelley has under the law. It further stated that Kelley:

has demonstrated a complete incapacity to subject himself to the law. That

failure, notwithstanding what I would consider to be fairly lenient

treatment, not once but twice, and notwithstanding that, he has completely

failed to comply. That suggests to me that either he won’t ever comply in

the future and that he has no intention of complying either because he

disregards the law or he just has some inability.

The court also noted that it considered the policy statements in Chapter 7 of the

U.S. Sentencing Guidelines in arriving at its sentence. The parties agree that

USSG § 7B1.4 recommended a range of three to nine months imprisonment.
2

 The term of incarceration is limited to “all or part of the term of

supervised release authorized by statute for the offense that resulted in such term

of supervised release without credit for time previously served on postrelease

supervision.” 18 U.S.C. § 3583(e)(3). In addition, the term of incarceration may

(continued...)

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ANALYSIS

We will reverse a sentence only if it was 1) imposed in violation of law, 2)

imposed as a result of an incorrect application of the sentencing guidelines, 3)

outside the applicable guideline range (and was not a permissible departure from

the guideline range), or 4) imposed for an offense for which there is no applicable

sentencing guideline and is “plainly unreasonable.” 18 U.S.C. § 3742(e).

Because there is no applicable sentencing guideline for the sentence to be

imposed after a violation of supervised release, our standard of review is “plainly

unreasonable.” United States v. White, 244 F.3d 1199, 1204 (10th Cir. 2001). 

“In reviewing the sentence and the court’s explanation of it, we will not reverse if

it can be determined from the record to have been reasoned and reasonable.” Id.

(quotation omitted). In conducting this analysis, we review the district court’s

findings of fact for clear error and its legal interpretations of the Sentencing

Guidelines de novo. United States v. Burdex, 100 F.3d 882, 884 (10th Cir. 1996).

Under 18 U.S.C. § 3583(e)(3), when a person violates a condition of his or

her supervised release, the district court may revoke the term of supervised

release and impose prison time.2

 However, in doing so the district court is
2

(...continued)

not exceed five years in cases involving an underlying class A felony, three years

with respect to class B felonies, two years for a class C or D felony, or one year

in any other case. Id.

3

 The court may revoke a term of supervised release only “after

considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),

(a)(2)(D), (a)(4), (a)(5), (a)(6) and (a)(7).” See 18 U.S.C. § 3583(e).

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required to consider the factors set forth in various subsections of 18 U.S.C.

§ 3553(a).3

 Those factors include 1) the nature and circumstances of the offense,

2) the history and characteristics of the defendant, 3) the need for the sentence to

afford adequate deterrence to criminal conduct, 4) the need to protect the public

from further crimes of the defendant, 5) the need to provide the defendant with

needed 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. See 18 U.S.C. § 3553(a).

In particular, when imposing a sentence for violating the conditions of

supervised release, the district court must consider the policy statements in

Chapter 7 of the Sentencing Guidelines. See United States v. Lee, 957 F.2d 770,

774 (10th Cir. 1992) (citing 18 U.S.C. § 3553(a)). Those policy statements

recommend a range of imprisonment upon revocation of supervised release, and

are “advisory rather than mandatory in nature.” See U.S. Sentencing Guidelines

Manual § 7B1.4 (2002); Lee, 957 F.2d at 773; see also U.S. Sentencing

Guidelines Manual § 7A(3)(a) (“[T]he Commission faced a choice between
4

 We reaffirmed our holding in Lee that the Chapter 7 policy statements are

merely advisory in United States v. Hurst, 78 F.3d 482 (10th Cir. 1996). In that

case, we rejected the argument that Lee was inconsistent with the Supreme

Court’s subsequent decision in Stinson v. United States, 508 U.S. 36 (1993). See

Hurst, 78 F.3d at 483-84.

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promulgating guidelines or issuing advisory policy statements for the revocation

of probation and supervised release.... [and] the Commission decided, for a

variety of reasons, initially to issue policy statements.... [T]his approach provided

greater flexibility both to the Commission and the courts.”); Burdex, 100 F.3d at

885 (“[O]nly the statutory maximum imposed by Congress binds a sentencing

court as to the length of a sentence imposed upon a violation of supervised

release.”).4

However, we have made it quite clear that the sentencing court is not

required to consider individually each factor listed in § 3553(a) before issuing a

sentence. Id. at 886; Lee, 957 F.2d at 774-75. We do not require “a ritualistic

incantation to establish consideration of a legal issue,” nor do we demand that the

district court “recite any magic words” to show us that it fulfilled its

responsibility to be mindful of the factors that Congress has instructed it to

consider. See United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999)

(quotations omitted). Rather, it is enough if the district court considers § 3553(a)

en masse and states its reasons for imposing a given sentence. Burdex, 100 F.3d

at 886.
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In Lee, for example, we concluded that the sentencing court adequately

considered the Chapter 7 policy statements because it noted that the Chapter 7

range is not mandatory, stated that the defendant breached the court’s trust, and

emphasized individual deterrence. 957 F.2d at 775. Likewise, in United States v.

Brooks, we held that the court below sufficiently considered the Chapter 7

sentencing range when it had been advised as to the applicable policy statement,

observed that it was not binding, and stated its reasons for imposing the sentence

it ultimately handed down. 976 F.2d 1358, 1360 (10th Cir. 1992).

We are satisfied that the district court considered all necessary factors in

sentencing Kelley for violating the conditions of his supervised release. The

court expressly stated that it considered the Chapter 7 policy statements in

arriving at its sentence. Furthermore, it explained the other factors it took into

account, including Kelley’s inability to comply with the law, the need to ensure

respect for the obligation to adhere to conditions of supervised release, and the

safety of the community. Cf. 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C). 

Having determined that the district court properly considered the factors it

was bound to review under 18 U.S.C. §§ 3583(e) and 3553(a), we have no
5

 In Lee, we approved a 24-month sentence for a second violation of

supervised release when the Chapter 7 policy statement recommended three to

nine months. 957 F.2d at 771-72. In Brooks, we approved a 24-month sentence

upon revocation of supervised release when the Chapter 7 policy statement

recommended six to 12 months. 976 F.2d at 1359. In Burdex, we approved a 24-

month sentence for violating the conditions of supervised release when the

Chapter 7 policy statement recommended eight to 14 months. 100 F.3d at 884. 

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difficulty in determining that an 18-month sentence was reasoned and reasonable

under the circumstances presented in this case.5

Finally, Kelley argues that the district court had a duty to consider the

guideline range applicable to his underlying offense, conspiracy to defraud a

financial institution. Kelley relies exclusively on the Ninth Circuit’s decision in

United States v. Olabanji, which held that a district court is required, after

rejecting the range recommended by the policy statements, to consider the

sentencing range that applied when the defendant was originally sentenced for the

underlying offense. 268 F.3d 636, 638 (9th Cir. 2001). We conclude that Olabanji

erroneously applied 18 U.S.C. § 3553 and we decline to adopt its reasoning.

Section 3553(a)(4) directs district courts to consider:

the sentencing range established for – (A) the applicable category of

offense committed by the applicable category of defendant as set forth in

the guidelines ... or (B) in the case of a violation of probation or supervised

release, the applicable guidelines or policy statements issued by the

Sentencing Commission....

Notwithstanding this statute’s use of the disjunctive “or,” the Ninth Circuit held

that if the district court determines in step one not to adhere to the Chapter 7
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recommendations, it must then in step two “revert for guidance to the sentencing

guidelines’ range for the underlying offense” pursuant to § 3553(a)(4)(A). See

Olabanji, 268 F.3d at 638-39. We reject this rule.

To be sure, pursuant to 18 U.S.C. § 3553(a)(1), the seriousness of the

defendant’s underlying offense is one factor among many the district court should

consider in sentencing upon revocation of supervised release, whether or not the

district court elects to depart from the Chapter 7 recommended sentencing range.

Yet as explained above, the district court need not address each factor listed in §

3553(a) individually. See Burdex, 100 F.3d at 886. Moreover, § 3553(a)(4)(A)

has no application when a violation of the defendant’s conditions of supervised

release is at issue; in such cases the relevant consideration under § 3553(a)(4) is

the Chapter 7 policy statements referenced in § 3553(a)(4)(B).

The natural reading of § 3553(a)(4) is further supported by that statute’s

legislative history. The Sentencing Commission proposed adding subsection

(a)(4)(B) to clarify that revocation decisions should be guided by guidelines and

policy statements issued by the commission specifically for that purpose, not by

the guidelines that were applicable to the defendant’s underlying offense. See

136 Cong. Rec. S. 14892, 14894-95 (1990). “Congress clearly intended that these

guidelines or policy statements, rather than those applicable to initial sentencing,

be used by courts when sanctioning probation (or supervised release) violators.” 
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Id. at 14895; see also United States v. George, 184 F.3d 1119, 1121-22 (9th Cir.

1999); United States v. Schwegel, 126 F.3d 551, 554 (3d Cir. 1997). 

The Olabanji court justified its contrary interpretation of § 3553(a)(4) by

stating that it must be read in conjunction with 18 U.S.C. § 3553(b), which

generally directs courts to “have due regard for the relationship of the sentence

imposed to sentences prescribed by guidelines applicable to similar offenses and

offenders” in the absence of an applicable sentencing guideline. Section 3553(b)

advances one of the major purposes of the sentencing guidelines, avoiding

unjustified disparities among similarly situated defendants. Cf. United States v.

Stultz, 356 F.3d 261, 266 (2d Cir. 2004). Yet it provides no basis for importing

the guidelines applicable to the underlying offense into sentencing decisions made

upon revocation of supervised release. Supervised release violators are simply

not in a position comparable to defendants facing initial sentencing for

commission of the underlying crime. “[A]t revocation the court should sanction

primarily the defendant’s breach of trust, while taking into account, to a limited

degree, the seriousness of the underlying violation and the criminal history of the

violator.” U.S. Sentencing Guidelines Manual § 7A(3)(b) (2002).

In Lee, Brooks, and Burdex, we approved sentences above the Chapter 7

range without any indication that the district court considered the sentencing

range that originally applied to the underlying offense. See Lee, 957 F.2d at 771;
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Brooks, 976 F.2d at 1360 n.2; Burdex, 100 F.3d at 886. Likewise, the fact that

the district court did not expressly mention the guideline range that applied to

Kelley’s conviction for conspiracy to defraud a financial institution does not call

into question the 18-month sentence he received because he failed to comply with

the terms of his supervised release. We AFFIRM.