* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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 

### December 13, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES of AMERICA, Plaintiff-Appellee, v. VISANO D. NELSON, Defendant-Appellant. No. 05-6020 (D.C. No. CR-01-292-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , HENRY and MCKAY , Circuit Judges.
Defendant-Appellant Visano Nelson (“Nelson”) challe nges the district court’s decision to sentence him to fifteen months’ imprisonment upon revocation of supervised release, four months longer than the top of the range recommended- 2 -

by Chapter 7 advisory policy statements. We exerci se jurisdiction under 28 U.S.C. § 1291 and affirm. I. Factual Background In October 1992, an Alaska jury convicted Nelson of conspiracy, bank robbery, and use of a firearm in relation to a crim e of violence, in violation of 18 U.S.C. §§ 371, 2113(a) & (d), and 924(c), for whic h the court sentenced him to 110 months’ imprisonment and four years’ supervisedrelease. On September 6, 2000, the District Court for the District of Alaskareleased Nelson to supervision, and, on February 2, 2001, transferred his supervisi on to the Western District of Oklahoma. On July 3, 2001, the Oklahoma district court revoke d the term of Nelson’s supervised release—after Nelson had tested positive for cocaine usage on nine occasions and for alcohol usage while residing in ahalfway house—and sentenced Nelson to six-months imprisonment followed by thirty-six-months supervised release. On August 6, 2002, the district court sen tenced Nelson to twelve months and one day in prison and twenty-four months of sup ervised release after revoking the term of Nelson’s second supervised release because Nelson had tested positive for cocaine usage on four occasions, failed to repo rt for urine testing on two occasions, and tested positive for alcohol usage on one occasion. On July 8, 2004, the district court revoked the term of Nelson ’s third supervised release after1 The statutory maximum term of imprisonment Nelsoncould receive upon

revocation of his supervised release was 15 months, which is the maximum provided by 18 U.S.C. § 3583—three years—minus the total time Nelson served based on his three previous revocations—21 months. - 3 - finding that he willfully failed to make court-orde red restitution payments and failed to appear at the original revocation hearing and sentenced Nelson to 90- days’ imprisonment and 15-months’ supervised releas e. On December 14, 2004, the district court revoked th e term of Nelson’s fourth supervised release after finding, upon stipu lation of the parties, that Nelson had used cocaine on two occasions. The advisory re vocation range of imprisonment pursuant to Federal Sentencing Guideli nes Chapter 7 specified a revocation range of imprisonment of five to eleven months based on a Grade C violation and Nelson’s criminal history category II I. See U.S.S.G. § 7B1.1-1.4. At the revocation hearing, the district court noted that Nelson’s supervised release had been revoked three previous times. The court f urther stated that: I believe the guidelines are five to 11 months and the maximum term of imprisonment is three years, less 21 months prev iously been [sic] revoked; 1

. . . You [Nelson] have been a scofflaw ever since I’ve c ome in contact with you. You’ve ignored the orders of this court. You’ve violated the law repeatedly. And as a result of that, it’s the judgment of the court the defendant will be sentenced to 15 months incarc eration.

. . . There obviously will be no supervised release. . . . You’re a failure of supervised release, but you must be punished for wh at you have done. And that’s the judgment of the Court.- 4 -

This appeal, in which Nelson challenges only the di strict court’s decision to sentence him outside the range recommended by the G uidelines, followed.

II. Discussion Nelson contends that his sentence, which was four m onths above the recommended range, was unreasonable because the dis trict court improperly relied on Nelson’s “recidivism” to depart from the recommended range of punishment and did so without referring to recidivi sm in the context of any of the other statutory factors the court is required to co nsider. Reviewing the district court’s legal interpretation of the Sentencing Guid elines de novo , as we must, see United States v. Kelley , 359 F.3d 1302, 1304 (10th Cir. 2005), we reject N elson’s argument for two reasons. First, in sentencing a defendant after revocation o f supervised release pursuant to 18 U.S.C. § 3583(e)(3), the district co urt must consider the factors set forth in 18 U.S.C. § 3553(a) and, specifically, the policy statements in Chapter 7 of the Guidelines; however, we do not require the d istrict court to engage in “a ritualistic incantation” or to “recite any magic wo rds” to fulfill this responsibility. Id. at 1304-05 (quotations omitted). We are satisfied that the district court considered all necessary factors in sentencing Nels on upon revocation of his- 5 -

supervised release. At the revocation hearing, th e judge confirmed that it recognized what the policy statement range and the statutory maximum were for Nelson’s violation. The judge then gave Nelson’s attorney an opportunity to argue for a lesser sentence and offered Nelson the opportunity to make his own statement. The court was not required to individua lly consider each § 3553(a) factor; it is enough that the court considered the factors “en masse.” Id. at 1305. See also United States v. Rose , 185 F.3d 1108, 1111 (10th Cir. 1999) (indicating that the appeals court will assume the district cou rt considered each of the factors absent a contrary indication in the record). Second, pre- and post-Booker , “imposition of a sentence in excess of that recommended by the Chapter 7 policy statements of t he Sentencing Guidelines will be upheld ‘if it can be determined from the re cord to have been reasoned and reasonable.’” United States Tedford , 405 F.3d 1159, 1161 (10th Cir. 2005) (quoting United States v. Tsosie , 376 F.3d 1210, 1218-19 (10th Cir.2004). Accordingly, a district court may easily depart fro m the range the statements suggest, because they have always been advisory, Un ited States v. ContrerasMartinez , 409 F.3d 1236, 1240 (10th Cir. 2005), if the sent encing court gives appropriate reasons for its actions, see 18 U.S.C. § 3553(c). Nelson claims the district court’s consideration of “recidivism” was an improper factor to rely on in imposing the sentence . “The Sentencing Guidelines2 We therefore also reject Nelson’s argument that t he district court was

precluded from considering the prior revocations of his supervised release because the suggested sentence range already accoun ted for repeat violators. - 6 - set forth factors that must be considered, but thatlist is not all-inclusive.” Tedford , 405 F.3d at 1161 (citations omitted). Additional ly, when read in context, the factor Nelson challenges is not an imp ermissible analysis. We have made it clear that a district court may appropriate ly consider “the futility of continued supervision” as a reason to depart from the Guideline range for sentences upon the revocation of supervised release . See Tedford , 405 F.3d at 1161-62. 2 The district court did precisely this. The judge stated that it was departing from the suggested range because Nelson i gnored the district court’s orders on four separate occasions, violated the law repeatedly, and was a “failure of supervised release.” In a period of just over f our years, the district court revoked Nelson’s supervised release on four separat e occasions after finding, many times upon Nelson’s own stipulation, that he h ad repeatedly broken the law and violated the terms of his release. It was ther efore “reasoned and reasonable” for the court to impose the sentence that it did. III. Conclusion Our review of the record convinces us that the dist rict court committed no error in exercising its discretion and sentencing N elson to a term in excess of the- 7 -

Guideline-recommended range upon revocation of Nels on’s supervised release. We therefore AFFIRM the district court’s sentence.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge