This order and judgment is not binding precedent except under the *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.

 After examining the briefs and the appellate record, this three-judge **

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

 The district court revoked Finney’s supervised release on a number of 1

convictions in three different cases for which he was sentenced to a total of 180

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

October 19, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 07-5013

v. (N.D. of Okla.)

JEFFREY DEAN FINNEY,

Defendant-Appellant.

(D.C. No. CR-06-134-HDC)

ORDER AND JUDGMENT

*

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. 

**

Jeffrey Dean Finney appeals an order revoking his term of supervised

release and sentencing him to 120 months in prison. Finney was on supervised

release after he served time for convictions as a felon in possession of a firearm,

among numerous other offenses. Finney stipulated to the conduct constituting a 1
(...continued) 1

months in prison and five years supervised release on June 29, 1993. He began

his term of supervised release on January 23, 2006. He appeals only the

revocation of supervised release for the two counts of felon in possession of a

firearm, for which he received two consecutive 60-month sentences. For

revocation of supervised release on the counts he does not appeal, Finney was

sentenced to 24 months to run concurrently with all other sentences.

 This range was based on a Grade A violation because of the alleged 2

armed robberies. USSG §§ 7B1.1, 7B1.4. At sentencing, criminal charges were

still pending against Finney for those robberies, but for purposes of the revocation

hearing, Finney stipulated to the alleged conduct. During sentencing, the court

stated, “I do know that there is a case pending, there is an allegation [of armed

robbery] pending. I’m not going to deal with that at this time. That’s something

(continued...)

-2-

violation of his supervised release, including (1) failure to complete two

substance abuse treatment programs, (2) repeated alcohol and drug abuse, (3)

gambling, and (4) commission of three armed robberies. The facts behind this

stipulation indicate Finney was terminated from two treatment programs for

failure to abstain from drug and alcohol use and refusal to cooperate with

program staff. After a revocation hearing was initially held on the substance

abuse violations, Finney was arrested for three armed robberies of restaurants in

Tulsa during a span of three hours. All of this took place within a year of

Finney’s release from prison.

Pursuant to policy statements in the United States Sentencing Guidelines

(“USSG”), the suggested sentencing range for revocation of supervised release for

a defendant with Finney’s criminal history and type of violation is 51–63

months. This is the highest range provided for by USSG § 7B1.4. Finney argues 2
(...continued) 2

that will be dealt with independently when it’s before the Court at a proper time.” 

R. Vol. V at 6–7. Finney argues this statement indicates the district court did not

intend to consider the armed robberies when calculating the sentence for

revocation of supervised release. He argues that the ultimate 120-month sentence

was therefore even more extreme because it departed upward from the 8–14

month range provided for his other Grade C violations. See USSG §§ 7B1.1,

7B1.4. 

We do not think the court’s statement evinces an intent to ignore the armed

robbery allegations when calculating the sentence before it. The court simply

stated that the matter before it concerned only the revocation of supervised

release, and the newly-filed criminal charges would be dealt with at a later time. 

This does not prevent the court from considering the armed robberies when

formulating a sentence for revocation of supervised release when Finney

stipulated to the alleged conduct for that purpose. In fact, the court was entitled

to consider “the nature of the conduct leading to the revocation . . . in measuring

the extent of the breach of trust” and to “leav[e] the punishment for any new

criminal conduct to the court responsible for imposing the sentence for that

offense.” USSG. ch.7, pt. A(3)(b), introductory cmt.

 Whether Finney’s sentence actually departed from the suggested range is 3

debatable. Finney’s supervised release was revoked on multiple counts, and

USSG § 7B1.4 arguably provides appropriate ranges for imprisonment based on

each individual count. If we consider individually the district court’s two

60-month sentences on each of Finney’s two felon in possession counts, the

district court’s sentences fell within the suggested 51–63 month range. Similarly,

if we consider the district court’s decision to treat Finney’s two counts as subject

to consecutive sentences, the court’s total sentence of 120 months falls within the

range computed by doubling the per-count recommended range of 51–63 months

to arrive at a recommended range of 102–126 months. The district court

nevertheless viewed its sentence as outside the prescribed range, and in any case,

we review the sentence for reasonableness.

-3-

the district court’s departure from the USSG policy statement to impose the 120-

month sentence was unreasonable. 

3
 United States v. Booker, 543 U.S. 220 (2005). 4

-4-

Discussion

We will overturn a sentence imposed as a result of a violation of supervised

release only if it is “plainly unreasonable.” United States v. Kelley, 359 F.3d

1302, 1304 (10th Cir. 2004); see also United States v. Rodriguez-Quintanilla, 442

F.3d 1254, 1257–58 (10th Cir. 2006) (using same standard of review postBooker ). A sentence imposed in excess of the recommendations in the USSG 4

policy statements will be upheld “if it can be determined from the record to have

been reasoned and reasonable.” Rodriguez-Quintanilla, 442 F.3d at 1258

(quoting United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004)). 

Congress has directed courts to impose sentences “sufficient, but not

greater than necessary” to (1) reflect the seriousness of the offense, promote

respect for the law, and provide just punishment for the offense; (2) afford

adequate deterrence to criminal conduct; (3) protect the public from further

crimes of the defendant; and (4) provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in the most

effective manner. 18 U.S.C. § 3553(a). A court must consider these factors as

well as the USSG policy statements in imposing a sentence following a revocation

of supervised release. United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir.

2006). We find the sentence the district court imposed was a reasoned and

reasonable application of these factors and the policy statements.
-5-

The district court at sentencing expressly acknowledged the USSG policy

statements but concluded,

This Court has considered the factors that are set forth within

Title 18 U.S.C., Section 3553(a) and has elected to sentence the

defendant to the 120 month term which is outside the prescribed

guideline range. This sentence reflects the need for a just punishment

for Mr. Finney, his use of illegal drugs, his use of alcohol, his problems

with gambling while under supervision, his propensity to commit

serious crimes while under the influence. Further, it provides a

deterrent to serious criminal conduct and protects the public against

future crimes.

The Court notes that Mr. Finney has been given the opportunity

for treatment at two community based centers and failed to complete the

programs successfully. This sentence will provide the defendant an

opportunity to complete the 500 hour residential drug program while

incarcerated.

R. Vol. V at 8. The district court thus carefully analyzed how the § 3553(a)

factors supported the sentence imposed. This explanation is a reasoned

application of the § 3553(a) factors.

Moreover, the district court’s sentence was not “plainly unreasonable.” 

First, the district court imposed the statutorily-authorized maximum of five years

per violation of supervised release on a class A felony conviction. 18 U.S.C.

§ 3583(e)(3). Second, as the court indicated at the sentencing hearing, the

sentence reflects the § 3553(a) factors. Finally, the pre-sentence report provided

to the court concluded a departure from the policy statement might be warranted

because (1) Finney’s original sentence was the result of a downward departure,

see USSG § 7B1.4 n.4, (2) Finney has a long history of committing crimes while
-6-

under the influence of alcohol and other substances, and (3) Finney committed

three armed robberies while on supervised release even after an initial revocation

hearing had been held based on other violations. The district court’s sentence

was a thus a personalized assessment of Finney’s particular history and

circumstances and clearly reflects the legislative policy contained in the § 3553(a)

factors. 

In sum, this record demonstrates the district court’s sentence was both

reasoned and reasonable, given Finney’s background and circumstances. The

sentence accounted for Finney’s total failure to control his substance abuse and

his termination from two treatment programs, his historically-demonstrated

propensity for future violence if he continues to use drugs and alcohol, and his

commission of three armed robberies when he knew his supervised release was

already in danger of revocation. These facts dramatically demonstrate Finney’s

unwillingness to comply with conditions of supervised release and the dangers

Finney presents to the public when he is free. In light of all of these facts, the

district court’s sentence was reasonable.

Conclusion

For the foregoing reasons, the district court’s sentence is AFFIRMED.

Entered for the Court

Timothy M. Tymkovich 

Circuit Judge