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

unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 3 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 04-7079 MISTY LEE TEDFORD,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 00-CR-61-P)

Submitted on the briefs: * J. Lance Hopkins, Tahlequah, Oklahoma, for Defendant-Appellant. Sheldon J. Sperling, United States Attorney, and Li nda A. Epperley, Assistant United States Attorney, Eastern District of Oklahom a, Muskogee, Oklahoma, for Plaintiff-Appellee.

Before EBEL , McKAY , and HENRY , Circuit Judges.-2-

McKAY , Circuit Judge.

On April 25, 2001, Defendant was sentenced to thirty-six months’ incarceration with the Bureau of Prisons to be foll owed by sixty months’ supervised release for her involvement in a drug co nspiracy in violation of 21 U.S.C. § 846. After completing her term of impriso nment, Defendant began her term of supervised release. On April 7, 2003, the Probation Office filed a Petition to revoke Defendant’s supervised release b ased on four alleged violations of the conditions of her supervised release: (1) c ommission of a state crime, (2) failure to notify her probation officer within seve nty-two hours of her arrest, (3) failure to pass seven drug tests, and (4) continuat ion of a relationship with a known convicted felon. Defendant admitted to all f our allegations. Based on a combination of Defendant’s criminal hist ory and the nature of the violations, the recommended sentence pursuant t o the Sentencing Guidelines was between five and eleven months of incarceration . The district court imposed a sentence of forty-eight months. Defendant appeal ed. After consideration of the issues presented, we remanded with directions for the district court to more adequately explain the reasons for imposing its sentence. United States v. Tedford, 92 Fed. Appx. 738, 740 (10th Cir. 2004). On July 16, 2004, the district court held an eviden tiary hearing relating to1 We note that the Eighth Circuit has taken an identi cal position on this (continued...) -3- Defendant’s resentencing. During that hearing, both Defendant and her fiancé testified. After receiving the testimony, the dist rict court again imposed a fortyeight month sentence of incarceration. In so doing , the district court considered the violation policy statements in Chapter 7 of the United States Sentencing Guideline Manual in effect and view[ed] those policies as advisory in nature for the purposes of the[] procee dings. [The district court] considered the nature and circumstances of t he violation of conduct, which included that [Defendant was] convic ted of a state crime while on supervised release; . . . that [Defe ndant] failed to notify [her] probation officer within seventy-two h ours of [her] arrest on the state charge; that [Defendant] failed seven drug tests; and that [she] continued a relationship with a convicted [fe lon]. All of these violations convinced the Court that [Defendant had] no regard or respect for the rules and conditions of supervised release, and that it would, therefore, be a waste of the limited resourc es of the probation office to have to continue supervision over a defen dant who has repeatedly violated the terms of her supervised rel ease. Additionally, at the time of [Defendant’s] original sentencing, t his Court considered the fact that [she was] pregnant, and th e impact that continued drug use would have upon [Defendant’s] un born child. A sentence outside of the range called for by the app lication of the guidelines provides just punishment for [her] non-c ompliance [and] is an adequate deterrent to future criminal conduct , and perhaps will instill some respect for the law in [Defendant]. Rec., Vol. III, at 28-29. Although the Supreme Court’s decision in United States v. Bookeraltered our standard of review for most sentencing cases, the standard of review for cases where the defendant challenges the revocation of he r supervised release remains the same. 1 See United States v. Booker , ___ U.S. ___, 125 S. Ct. 738, 766 (2005)1 (...continued)

issue. See United States v. Cotton , 399 F.3d 913, 916 (8th Cir. 2005). -4- (citing United States v. Tsosie , 376 F.3d 1210, 1218-19 (10th Cir. 2004), as an example of an application of the reasonableness sta ndard of review). Hence, in this case, we will follow the law as articulated by Tsosie , wherein we stated that imposition of a sentence in excess of that recommen ded by the Chapter 7 policy statements of the Sentencing Guidelines will be uph eld “if it can be determined from the record to have been reasoned and reasonabl e.” Tsosie , 376 F.3d at 1218 (internal quotation omitted). Defendant’s first contention is that her sentence w as unreasonable because the district court did not “adequately consider[] t he Chapter 7 policy statements.” Aplt’s Br. at 7-9. In imposing sentences after rev ocation of supervised release, district courts are obligated to consider Chapter 7 ’s policy statements. United States v. Kelley , 359 F.3d 1302, 1305 (10th Cir. 2004) (citation om itted). Magic words, however, are not required to demonstrate ful fillment of this requirement. See id. Prior to imposing a sentence in the present case, t he district court stated that it considered the Chapter 7 policy statements, viewed them as advisory, and then articulated the reasons warranting a sentence outside the recommended Guideline range. Rec., Vol. III, at 28-29. In so doing, the district court fulfilled its responsibility to adequately consider the Chapt er 7 policy statements. See-5-

United States v. Lee , 957 F.2d 770, 775 (10th Cir. 1992) and United States v. Brooks , 976 F.2d 1358, 1360 (10th Cir. 1992) cited in Kelley , 359 F.3d at 1305. To be clear, we do not hold that Defendant’s senten ce, which is more than four times the outside limit of the recommended Guidelin e range, to be reasonable. We hold that the sentence is not unreasonable for t he reasons presented by Defendant – that the district court failed to adequ ately consider the Chapter 7 policy statements. Defendant’s second contention attacks the district court’s reasoning in support of its sentence. Defendant claims the dist rict court’s consideration of the Probation Office’s resources was an improper factorto rely on in imposing the sentence because it is not an enumerated factor in the Guidelines. Aplt’s Br. at 9- 10. We review de novo the district court’s interpretation of the Guideli nes. United States v. Burdex , 100 F.3d 882, 884 (10th Cir. 1996). The Sentencing Guidelines set forth factors that mu st be considered, see United States v. White , 244 F.3d 1199, 1204 (10th Cir. 2001) (citing 18 U .S.C. § 3553(a)), but that list is not all-inclusive. In a ddition, when read in context, the factor to which Defendant objects, the resources of the Probation Office, does not reflect an impermissible analysis of federal penal resource allocation. The district court stated that it would “be a waste of the limit ed resources of the probation office to have to continue supervision over a defen dant who has repeatedly-6-

violated the terms of her supervised release.” Rec ., Vol. III, at 28. The district court merely recognized the futility of continued s upervision, a consideration implicit in the Congressional grant of authority to revoke one’s supervised release. See 18 U.S.C. § 3583(e)(3). AFFIRMED

.