*

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 is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

March 28, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 10-1318

(D.C. No. 1:07-CR-00375-JLK-1)

(D. Colorado)

v.

ROBERT THOMAS KERNAN,

Defendant - Appellant.

ORDER AND JUDGMENT*

Before HARTZ, HOLLOWAY, and O’BRIEN, Circuit Judges.

I. INTRODUCTION

After Defendant Robert Thomas Kernan violated the terms of his

supervised release, the United States District Court for the District of Colorado

revoked his release and sentenced him to 11 months’ incarceration. Defendant

appeals his sentence, arguing that it was substantively unreasonable. According

to Defendant, his sentence was greater than necessary to satisfy the sentencing
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purposes that Congress articulated in 18 U.S.C. § 3553(a). We disagree and

affirm. 

II. BACKGROUND

On August 25, 2007, Defendant took Jet Blue Airlines Flight 491 from

Boston Logan Airport to Denver International Airport. As the flight crew

prepared the passenger cabin for landing, Defendant reached his hand between the

legs of a female flight attendant and touched her in a highly inappropriate

manner. Defendant was indicted on one count of interference with a flight crew

by assault and intimidation, see 49 U.S.C. § 46504, and one count of knowingly

engaging in unconsented sexual contact with another, see id. § 46506 and

18 U.S.C. § 2244(b). On November 15, 2007, he pleaded guilty to the

interference count in accordance with a plea agreement.

Defendant has had a long-documented problem with alcohol, which

includes eight convictions for driving under the influence and driving while

impaired. Although he ordered only one beer during the flight, other passengers

told authorities that they believed Defendant was drunk when he boarded the

plane in Boston, that he was slurring his words, and that he smelled of alcohol. 

Accordingly, in addition to 10 months’ imprisonment, Defendant’s sentence

included three years of supervised release during which he was required to

“participate in a program of testing and treatment for alcohol abuse, as directed

by the probation officer”; “abstain from the use of alcohol”; and “participate in a
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program of mental health treatment . . . until such time as [he was] released from

the program by the probation officer.” R., Vol. 1 at 15.

On June 24, 2008, Defendant began the three-year term of supervised

release, and a month later he began receiving mental-health and substance-abuse

therapy. His treatment regime consisted of “individual therapy, medication

monitoring, and random drug and alcohol testing.” Id., Vol. 3 at 7. Between the

commencement of treatment and May 2010, Defendant failed to attend three

therapy sessions and failed to submit to six random drug and alcohol tests.

Defendant was arrested on January 31, 2010, on charges of driving under

the influence of alcohol and having an open alcohol container in his vehicle. His

probation officer notified the district court of the violation of the terms of his

supervised release and asked it to conduct an immediate compliance-review

hearing. Recognizing that “[a]lcohol remain[ed] a major contributor in the

defendant’s criminal conduct,” the probation officer requested that the court

admonish Defendant to comply with the special conditions of his supervised

release and to abstain from the use of alcohol and other intoxicants. Id., Vol. 1 at

29.

The district court conducted the hearing on February 25, 2010. The court

expressed its frustration with Defendant’s failure to take seriously his many

alcohol-related offenses, including “page, after page, after page, of drunk driving,

disturbing the peace, [and] harassment” convictions. Id., Vol. 2 at 34. It warned
1

 Grade C violations of terms of supervised release include “conduct

constituting (A) a federal, state, or local offense punishable by a term of

imprisonment of one year or less; or (B) a violation of any other condition of

(continued...)

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Defendant that it was adopting a zero-tolerance policy regarding his supervised

release:

This is the last time I talk to you at all. The next time you

come in here it will be—you’ll be leaving through that door with the

marshal for two years. 

. . . . 

There is absolutely no further tolerance for anything that you

do that deviates in the slightest from what your probation officer tells

you to do. If he puts you on daily urinalysis checks or breathalysers,

you are going to take them. And if you miss one, you’re going to

prison, whether you have been drinking or not.

If you deviate one step from the regulations and the orders that

have been imposed upon you by your probation officer—and he can

come in here and cry and say that he wants to give you another

chance, and he won’t win. He’s in your corner, but I am not. This is

it.

Id. at 34–35. 

Despite this warning, Defendant failed to attend a required therapy session

on May 1, 2010. The following month his probation officer prepared a report

alleging that Defendant had committed three types of violations of his supervised

release: (1) he used alcohol on January 31, 2010, the date he was arrested for

driving while intoxicated; (2) he failed to participate in alcohol abuse/mentalhealth treatment on three occasions, including May 1, 2010; and (3) he failed to

participate in drug/alcohol testing on six occasions. All three violations qualified

as grade C violations of supervised release.1

 Based on Defendant’s criminal-
1

(...continued)

supervision.” USSG § 7B1.1(a)(3). 

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history category of III, United States Sentencing Guideline § 7B1.4(a)

recommended an imprisonment range of 5 to 11 months. Referencing the district

court’s zero-tolerance policy regarding Defendant’s supervised release, the

probation officer’s violation report recommended that the court sentence

Defendant to 11 months’ imprisonment followed by 25 months of supervised

release.

The district court held a revocation hearing on July 12, 2010. Speaking

first, the government stated that it did “not agree with the Probation Department,”

id. at 21, that Defendant’s violations merited a top-of-the-guideline sentence. 

Although it acknowledged that Defendant had violated his supervised release on

numerous occasions, it pointed out that only one of those violations—the missed

individual-therapy session on May 1, 2010—had occurred after the court

threatened to “throw the book” at Defendant at the February compliance hearing. 

Id. at 22. Defendant’s counsel echoed this sentiment and asserted that “a further

prison sentence . . . in excess of what [Defendant] was given for the underlying

offense [wa]s greater than necessary to achieve sentencing purposes that the Court

need[ed] to follow.” Id. at 25. 

The district court saw matters differently. It noted that “every facility th[e]

court ha[d] available ha[d] been provided to [Defendant], . . . [a]nd the fact that
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[he] admitt[ed] to being an alcoholic [wa]s not an excuse.” Id. at 28. And it

explained: “I am concerned primarily about other people in our society. I am

concerned about [Defendant] taking a drink and getting behind the wheel of a car. 

I’m concerned because I’ve seen mangled and crippled people because somebody

said that they’re trying not to drink.” Id. The court sentenced Defendant to 11

months’ imprisonment, followed by 25 months of supervised release. It said that

it initially considered sending Defendant to prison for the remaining months of

his supervised release but ultimately listened to the probation officer’s

recommendation, which it considered lenient. Defendant timely appealed.

III. DISCUSSION

Our review of the sentence imposed is deferential. “[W]e will not reverse a

revocation sentence imposed by the district court if it can be determined from the

record to have been . . . reasonable.” United States v. Contreras-Martinez,

409 F.3d 1236, 1241 (10th Cir. 2005) (brackets and internal quotation marks

omitted). A revocation-of-supervised-release sentence within the range suggested

by the Sentencing Commission’s policy statements, such as the sentence here, is

entitled to a presumption of reasonableness. See United States v. McBride,

No. 10-3206, 2011 WL 489681, *3 (10th Cir. Feb. 14, 2011).

Defendant does not contest the district court’s calculation of the

recommended sentencing range. He argues only that “[g]iven the severity of his

alcohol problem, his relative success in controlling it after his release from
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prison, and the inadequacy of the alcohol treatment available in prison, the top-ofthe-Guidelines sentence imposed on [him] . . . was far greater than necessary to

satisfy the sentencing purposes enunciated in 18 U.S.C. § 3553(a).” Aplt. Br. at

11. “[W]hen considered in light of the Section 3553(a) standards,” he asserts, his

11-month sentence “was unreasonably long.” Id. at 16. Instead, he claims, a

“‘longer period of supervision’ or ‘perhaps an intermediate sanction’ would have

been reasonable.” Id. at 17. We are not persuaded. 

To be sure, the 11-month sentence “exceed[s] the sentence that was

imposed—and served—for the underlying crime.” Id. at 19. But if the original

sentence set an upper limit, incarceration could never be imposed for violations of

conditions of probation. The lighter original sentence is to give the defendant a

second chance, not to set a maximum punishment if he fails. Similarly, it is not

determinative that the government recommended a lower sentence. 

Certainly a lesser sentence would have been reasonable. But, as we have

previously explained, there are often “a range of possible [sentences that] the

facts and law at issue can fairly support . . . . [W]e will defer to the district

court’s judgment so long as it falls within the realm of these rationally available

choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). “The

fact that [we] might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Gall v. United

States, 552 U.S. 38, 51 (2007). Defendant’s failure to heed the district court’s
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warning to comply strictly with all conditions of release, together with his history

of noncompliance, could rationally justify the sentence imposed. Defendant has

not overcome the presumption that his within-guideline sentence fell within the

realm of rationally available choices.

IV. CONCLUSION

We AFFIRM.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge