* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 Kevi n Danielson, Assistant United States Attorney, Tulsa, Oklahoma, for Plaint iff-Appellee.

Before EBEL , HENRY and HARTZ , Circuit Judges.

EBEL , Circuit Judge.- 2 -

Defendant Harold Kelley was sentenced to an 18-month prison term after he violated the conditions of his supervised releas e for a second time. Kelley now contends that this sentence was plainly unreasonabl e. We disagree.

BACKGROUND The facts relevant to this appeal are not in disput e. Kelley pled guilty to one count of conspiracy to defraud a financial inst itution in violation of 18 U.S.C. §§ 371 and 1344(1). The maximum term of imprisonme nt for that offense was five years, and the guideline range for imprisonment was six to 12 months under the circumstances. The district court sentenced Ke lley 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 For this violation, Kelley’s supervised release was revoked and he was sentenced to another six months imprisonment and another 30 months of superv ised release.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 becaus e “it would be a waste of1 By statute, the maximum term of imprisonment thatcan 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 ca lculating 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 recei ve upon his second supervised release revocation was 18 months. - 3 - Probation’s time trying to hunt Mr. Kelley down aga in and again and again.” The defense agreed that it “would probably be a good id ea if there wasn’t a term of supervised release afterwards, because apparently M r. Kelley and supervised release don’t get along terribly well.” The distri ct court sentenced Kelley to 18 months imprisonment, the maximum that could be impo sed 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 le vel of respect for the obligations Kelley has under the law. It further s tated that Kelley: has demonstrated a complete incapacity to subject h imself to the law. That failure, notwithstanding what I would consider to b e 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 complyin g 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 sente nce. The parties agree that USSG § 7B1.4 recommended a range of three to nine m onths imprisonment.2 The term of incarceration is limited to “all or p art of the term of

supervised release authorized by statute for the of fense that resulted in such term of supervised release without credit for time previ ously served on postrelease supervision.” 18 U.S.C. § 3583(e)(3). In addition , the term of incarceration may (continued...) - 4 - ANALYSIS We will reverse a sentence only if it was 1) impose d 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 nota 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, ou r 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 explanat ion of it, we will not reverse if it can be determined from the record to have been r easoned and reasonable.” Id. (quotation omitted). In conducting this analysis, we review the district court’s findings of fact for clear error and its legal inte rpretations 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 violate s a condition of his or her supervised release, the district court may revo ke the term of supervised release and impose prison time. 2 However, in doing so the district court is2 (...continued)

not exceed five years in cases involving an underly ing class A felony, three years with respect to class B felonies, two years for a c lass 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). - 5 - required to consider the factors set forth in vario us 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 t o provide the defendant with needed training, medical care, or correctional treatment, and 6) the sentencing range established under the sentencing guidelines o r the policy statements applicable to a violation of supervised release. S ee 18 U.S.C. § 3553(a). In particular, when imposing a sentence for violati ng the conditions of supervised release, the district court must conside r 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 o f supervised release, and are “advisory rather than mandatory in nature.” Se e 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 fac ed a choice between4 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 St ates , 508 U.S. 36 (1993). See Hurst , 78 F.3d at 483-84. - 6 - promulgating guidelines or issuing advisory policy statements for the revocation of probation and supervised release.... [and] the C ommission decided, for a variety of reasons, initially to issue policy state ments.... [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 Congr ess binds a sentencing court as to the length of a sentence imposed upon aviolation of supervised release.”). 4 However, we have made it quite clear that the sente ncing court is not required to consider individually each factor liste d in § 3553(a) before issuing a sentence. Id. at 886; Lee , 957 F.2d at 774-75. We do not require “a rituali stic incantation to establish consideration of a legal i ssue,” 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 Co ngress 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 give n sentence. Burdex , 100 F.3d
at 886.- 7 -

In Lee , for example, we concluded that the sentencing cou rt adequately considered the Chapter 7 policy statements because it noted that the Chapter 7 range is not mandatory, stated that the defendant b reached 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 conside red 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 re asons for imposing the sentence it ultimately handed down. 976 F.2d 1358, 1360 (10 th Cir. 1992). We are satisfied that the district court consideredall necessary factors in sentencing Kelley for violating the conditions of h is supervised release. The court expressly stated that it considered the Chapt er 7 policy statements in arriving at its sentence. Furthermore, it explaine d 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 no5 In Lee , we approved a 24-month sentence for a second viol ation of

supervised release when the Chapter 7 policy statem ent 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 Chap ter 7 policy statement recommended six to 12 months. 976 F.2d at 1359. I n Burdex , we approved a 24- month sentence for violating the conditions of supe rvised release when the Chapter 7 policy statement recommended eight to 14 months. 100 F.3d at 884. - 8 - 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 offens e, conspiracy to defraud a financial institution. Kelley relies exclusively o n the Ninth Circuit’s decision in United States v. Olabanji , which held that a district court is required, aft er rejecting the range recommended by the policy state ments, to consider the sentencing range that applied when the defendant wa s originally sentenced for the underlying offense. 268 F.3d 636, 638 (9th Cir. 200 1). 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 consi der: the sentencing range established for – (A) the appl icable category of offense committed by the applicable category of def endant as set forth in the guidelines ... or (B) in the case of a violatio n of probation or supervised release, the applicable guidelines or policy statem ents issued by the Sentencing Commission.... Notwithstanding this statute’s use of the disjuncti ve “or,” the Ninth Circuit held that if the district court determines in step one n ot to adhere to the Chapter 7- 9 -

recommendations, it must then in step two “revert f or guidance to the sentencing guidelines’ range for the underlying offense” pursu ant 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 supervise d 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 notaddress 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 con sideration under § 3553(a)(4) is the Chapter 7 policy statements referenced in § 355 3(a)(4)(B). The natural reading of § 3553(a)(4) is further supp orted by that statute’s legislative history. The Sentencing Commission pro posed adding subsection (a)(4)(B) to clarify that revocation decisions shou ld be guided by guidelines and policy statements issued by the commission specific ally for that purpose, not by the guidelines that were applicable to the defendan t’s underlying offense. See 136 Cong. Rec. S. 14892, 14894-95 (1990). “Congres s 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.”- 10 -

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 § 3 553(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 th e relationship of the sentence imposed to sentences prescribed by guidelines appli cable to similar offenses and offenders” in the absence of an applicable sentenci ng guideline. Section 3553(b) advances one of the major purposes of the sentencin g guidelines, avoiding unjustified disparities among similarly situated de fendants. Cf. United States v. Stultz , 356 F.3d 261, 266 (2d Cir. 2004). Yet it provide s 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 i nitial sentencing for commission of the underlying crime. “[A]t revocati on the court should sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violationand 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 off ense. See Lee , 957 F.2d at 771;- 11 -

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 gu ideline range that applied to Kelley’s conviction for conspiracy to defraud a fin ancial institution does not call into question the 18-month sentence he received bec ause he failed to comply with the terms of his supervised release. We AFFIRM.