*

 This order and judgment is not binding precedent, except under the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

January 21, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 09-5042

JOSHUA SETH WROBEL,

Defendant-Appellant.

(D.C. No. 4:03-CR-00121-JHP-1)

(N. D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument. 

Defendant Joshua Seth Wrobel appeals from the twenty-four month

sentence imposed by the district court for violation of the terms of his probation. 

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We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

In February 2004, Wrobel pled guilty to a charge of interference with flight

crew members and attendants in violation of 49 U.S.C. § 46504. The district

court sentenced him to a term of three years’ probation.

In September 2005, the probation office alleged that Wrobel committed

three violations of his terms of probation. The probation office alleged that

Wrobel failed to submit written monthly reports for July and August 2005,

Wrobel failed to advise the probation office of his whereabouts, and Wrobel

missed ten urinalysis testing dates. In January 2006, Wrobel stipulated to these

violations. The post-sentence investigation report (PSI) indicated that Wrobel

had three convictions for cocaine possession, which resulted in probationary or

suspended sentences. The PSI also noted that Wrobel had completed two

inpatient treatment programs and participated in out-patient counseling and

Cocaine Anonymous meetings. The district court extended Wrobel’s probation

for two years, for a total term of five years’ probation. 

On February 6, 2009, Wrobel’s probation officer petitioned the district

court to revoke Wrobel’s probation. The probation office alleged that Wrobel had

tested positive for cocaine and he failed to submit to drug testing. These “Grade

C” violations, combined with Wrobel’s criminal history category of I, resulted in

a suggested sentence of three to nine months’ imprisonment under § 7B1.4(a) of

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the Sentencing Guidelines. 

The probation office prepared a revocation and sentencing memorandum. 

According to the memorandum, Wrobel had previously received inpatient drug

treatment on two occasions, and he relapsed both times. Additionally, the

memorandum noted that the district court had previously warned Wrobel in

connection with his prior probation violations. The memorandum recommended

that based on this history, Wrobel be sentenced above the guideline range in order

to allow Wrobel to complete the 500 Hour Comprehensive Drug Treatment

Program, noting that the Federal Bureau of Prisons recommends a term of

imprisonment of twenty-four months to complete the program.

Wrobel stipulated to these recent violations and proceeded to sentencing. 

Wrobel called two witnesses: a counselor at the 12 & 12 halfway house and his

probation officer. After hearing the testimony, the district court revoked

Wrobel’s probation and sentenced him to a term of twenty-four months’

imprisonment, followed by twenty-four months’ supervised release. The district

court stated: 

The Court recommends that the defendant participate in

the Bureau of Prisons 500 hour comprehensive drug abuse

program. The Court has considered the violation policy

statements of Chapter 7 of the United States Sentencing

Guideline manual now in effect and view [sic] those

policies as advisory in nature for the purpose of these

proceedings. The Court has also considered the nature and

circumstances of the violation conduct and characteristics

of the offender. . . . The Court has taken into consideration

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the treatment effort that the defendant has engaged in and

finds a custody term is necessary. Joshua Seth Wrobel has

previously been warned by this Court regarding his

possession and use of illicit drugs. Despite being

previously warned and based on the nature of the

violations and the need to protect the public, the Court

believes that a lengthy imprisonment term above the

prescribed guideline range is not only justified, but

necessary. Said sentence is reasonable, provides just

punishment for noncompliance, is an adequate deterrent to

criminal conduct, promotes respect for the law, and

provides the defendant with the opportunity to obtain

correctional treatment in the most effective manner.

ROA, Vol. II at 39.

II

Wrobel appeals the reasonableness of the term of twenty-four months’

imprisonment; he does not contest the revocation of probation itself. “[I]t is now

axiomatic that a sentence in excess of that recommended by the Chapter 7 policy

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

reasoned and reasonable.” United States v. Cordova, 461 F.3d 1184, 1188 (10th

Cir. 2006) (quotations omitted) (supervised release revocation). This is the same

analysis as the reasonableness standard of review under United States v. Booker,

543 U.S. 220 (2005). See United States v. Contreras-Martinez, 409 F.3d 1236,

1241 n.2 (10th Cir. 2005); see also United States v. Moulden, 478 F.3d 652, 655

(4th Cir. 2007) (treating probation revocation and supervised release revocation

sentences similarly). Reasonableness is comprised of two components:

procedural and substantive reasonableness. United States v. Zapata, 546 F.3d

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1179, 1192 (10th Cir. 2008). It does not appear that Wrobel raises any procedural

challenge to the calculation of his sentence, but rather focuses upon the

substantive reasonableness of his sentence. 

Wrobel contends that the sentence of twenty-four months’ imprisonment is

unreasonable in light of the Chapter 7 policy statement’s recommendation of three

to nine months’ imprisonment. In reviewing a sentence following revocation of

probation, “we consider the substantive reasonableness of the length of the

sentence under an abuse-of-discretion standard.” United States v. Miller, 557

F.3d 919, 922 (8th Cir. 2009); see also United States v. Silva, 443 F.3d 795, 798

(11th Cir. 2006); United States v. Reber, 876 F.2d 81, 83 (10th Cir. 1989). “A

district court abuses its discretion when it renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. Landers,

564 F.3d 1217, 1224 (10th Cir. 2009). This standard “applies without regard to

whether the district court imposes a sentence within or outside the advisory

Guidelines range.” United States v. Friedman, 554 F.3d 1301, 1308 (10th Cir.

2009).

Upon review of the record, including the transcript of the revocation

hearing, we conclude that the district court committed no error in sentencing

Wrobel. The court clearly considered the nature and circumstances of the

violations, Wrobel’s history and characteristics, and the need for the sentence to

protect the public and provide Wrobel with incentives to alter his pattern of

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behavior. The district court noted that Wrobel had previously been warned about

violating the terms of his probation. Additionally, the district court considered

that custody was necessary to help treat Wrobel’s substance abuse problem and

recommended that Wrobel participate in the drug rehabilitation program, which

recommends a sentence of twenty-four months’ imprisonment. The district court

took into account the Chapter 7 policy statements. Although the sentence

imposed was greater than the recommended range, the sentence was reasonable. 

See Silva, 443 F.3d at 799 (district court did not abuse its discretion in imposing

a 24-month sentence following revocation of probation when Chapter 7

recommended three to nine months’ imprisonment); Cordova, 461 F.3d at 1189

(concluding that a sentence of thirty-six months’ imprisonment following

revocation of supervised release was substantively and procedurally reasonable

even though the guidelines range was three to nine months’ imprisonment). 

AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge 

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