UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DEWAYNE ANTWON THOMPSON, Defendant - Appellant. No. 23-6214 (D.C. No. 5:06- CR-00212-F-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Defendant Dewayne Antwon Thomps on appeals the revocation sentence imposed by the district court for Thomps on violating the terms of his supervised release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Thompson’s revocation sentence.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 7, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 12 I In 2007, Thompson pleaded guilty to one count of knowingly and intentionally distributing five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to a term of impris onment of 135 months, to be followed by a five-year term of supervised release. Following two sentence modifications, Thompson was released from prison and began his first term of supervised release on January 20, 2012. Thompson’s first term of supervised rele ase was revoked on May 7, 2014, and he was sentenced to a term of imprisonment of twenty-four months, to be followed by a sixty-month term of supervised release. In October 2023, while Thompson was on supervised release, his probation officer filed a petition with the district court allegi ng that Thompson had committed four violations of the mandato ry conditions of his supervis ed release. The district court held a revocation hearing on December 12, 2023. At the outs et of the hearing, Thompson’s counsel admitted two of the vi olations: (1) that Thompson submitted a urine specimen in November 2022 that test ed positive for cocaine and subsequently admitted to his probation officer that he smoked a cigarette that contained cocaine; and (2) that Thompson submitted diluted ur ine specimens on three occasions in June and July 2022. The government then pr esented three witnesses in support of the remaining two alleged violations. At the conclusion of the testimony, the district court found that Thompson ha d violated the terms of his supervised release by possessing and brandishing a firearm duri ng a domestic violence incident. The district court then se ntenced Thompson to a te rm of imprisonment of Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 23 thirty-six months, to be followed by a five-y ear term of supervised release. In doing so, the district court stated on the record “that a guidelin e sentence is not sufficient . . . to satisfy the statutory objectives of sentencing.” R., Vol. 3 at 62. The district court noted, in particular, that Thompson’s possession a nd brandishing of a firearm during a domestic violence incident was “a matter of serious concern from the standpoint of the need to protect the public and on the basis of the seriousness of the nature and circumstances of the offense.” Id. at 61–62. Thompson now appeals the revocation sentence.
II Thompson argues that the revocation sentence imposed by the district court was not substantively reasonable. Thompson notes in support that the thirty-six month term of imprisonment “was double the top end of the recommended guideline range of 12 to 18 mont hs.” Aplt. Br. at 6. He argues that “[t]here was insufficient cause to issue an upward variance,” and “[ t]he district court ignored and/or devalued significant mitigating fact ors,” including the fact that he “had a tough life,” was holding a job on supervised release, was “in a very complicated personal relationship with the victim” of the domestic violence incident, and “was heavily intoxicated” at the time of that incident. Id. at 6, 9–10. “We review the substantive reasona bleness of a sentence for abuse of discretion.” United States v. Kaspereit , 994 F.3d 1202, 1207 (10th Cir. 2021). Under this standard of review, we give “s ubstantial deference to the district court’s determination” and will “ove rturn [the] sentence as s ubstantively unreasonable only Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 34 if it is arbitrary, ca pricious, whimsical, or manifestly unjust.” Id. Further, where, as here, the district court imposes an above-G uidelines sentence, we “must consider the extent of the deviation and ensure that the justification is suffic iently compelling to support the degree of the variance.” United States v. Peña , 963 F.3d 1016, 1029 (10th Cir. 2020 (interna l quotation marks omitted). In announcing its sentence, the district court stated that it had considered Thompson’s “history and charac teristics.” R., Vol. 3 at 61. The district court acknowledged that “it may well be that [Thompson] was doing well on supervision,” noting that “[h]is record was not spotless.” Id. The district court concluded, however, that Thompson’s general record on supervision “d[id] not detract from . . . the danger” his conduct during the domestic violence incident posed “to the public” and “to people within his circle of family members and acquaintances and neighbors.” Id. Specifically, the dist rict court noted that Thompson’s “proclivity to get vocal and violent and make threats and br andish a gun” was “a matter of serious
concern.” Id. The district court also noted th at this serious misconduct occurred “against the backdrop of” Thompson’s cr iminal history of “dealing crack.” Id. at 62. The district court stated: I have no reason to believe that he retu rned to that way of life after he was released, but the fact that we had an individual convicted of that serious crime, originally sentenced to 135 months of incarceration, which was amended to 108 months and then was amended to time served, and then had a revocation sentence of 24 months, gives me serious concern as to the prospect s for Mr. Thompson redirecting his life in a productive and constructiv e and law-abiding direction. Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 45 Id. Ultimately, the district court “concl ude[d] that a guideline sentence [wa]s not sufficient” and that an above -guideline sentence of thirty -six months’ incarceration, along with an additional term of supervised release of five year s, was appropriate. Id. Based upon this record, we conclude the district court did not abuse its discretion in imposing a sentence above the Guidelines sentencing range. The reasons cited by the district court in s upport of the sentence imposed, which are essentially undisputed, are, in our view, sufficiently co mpelling to support the length of the selected sentence.
III We AFFIRM the revocation senten ce imposed by the district court.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 23-6214 Document: 010111044941 Date Filed: 05/07/2024 Page: 5