PUBLISH

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

BRIAN STEELE, 

Defendant – Appellant. 

No. 09-7108 

Appeal from the United States District Court 

for the Eastern District of Oklahoma 

(D.C. No. 6:04-CR-00060-JHP-1) 

Submitted on the briefs:

Bret A. Smith, Muskogee, Oklahoma, for Defendant-Appellant. 

Sheldon J. Sperling, United States Attorney, and Christopher J. Wilson, Assistant United 

States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee. 

 ___________________________________ 

Before TACHA, BRISCOE, and O'BRIEN, Circuit Judges.

O’BRIEN, Circuit Judge. 

 



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

unanimously to grant 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 ordered 

submitted without oral argument. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 26, 2010

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 09-7108 Document: 01018409014 Date Filed: 04/26/2010 Page: 1 
 Brian Steele appeals from an 18-month sentence of imprisonment imposed for his 

second violation of the terms of supervised release. He complains of procedural 

irregularities and claims the sentence is unreasonable. We affirm. 

I. BACKGROUND 

In June 2004, Steele pled guilty to possession with intent to distribute 

methamphetamine in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 63 months 

imprisonment and 36 months supervised release. It is unclear from the record when he 

began serving that (his first) supervised release. In any event, in March 2008, he violated 

the terms by unlawfully possessing and using a controlled substance, failing to truthfully 

answer questions and otherwise follow the instructions of his probation officer, and 

committing another crime. The court revoked supervised release and sentenced him to 6 

months imprisonment followed by another 18 months of supervised release. He began 

the second supervised release on October 2, 2008. 

On April 18, June 6, June 29 and July 24, 2009, he tested positive for marijuana. 

He admitted his violations of supervised release in open court. The policy provisions of 

Chapter 7 of the United States Sentencing Guidelines recommended a sentencing range 

of 4 to 10 months imprisonment, see USSG §7B1.4(a)—the statutory maximum is 24 

months. See 18 U.S.C. § 3583(e)(3). Defense counsel argued he was entitled to a lenient 

sentence because he maintained a job and supported his two children while on the most 

recent supervised release.1

 

 

1

 It is unclear from the record whether Steele also maintained a job and/or 

provided support for his children while serving his first supervised release. 

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The court sentenced Steele to 18 months imprisonment, explaining: 

 You know, a year ago, I was in hopes that six months would get 

your attention . . . . And I appreciate that you have two children and are 

paying child support. That’s the most positive thing I’ve heard . . . . 

[F]rom my perspective, it’s not consistent, though. That you’re paying 

child support and apparently taking care of your kids is a good thing 

obviously . . . . [I]f I told you that that was common for me to see guys in 

your situation taking care of their kids and taking care of their wife, I’d say 

it’s unusual. You’re the exception there. What I don’t understand is why 

you would sacrifice that relationship over marijuana . . . . 

 [M]arijuana is . . . illegal . . . . And when someone comes in, the 

truth is, in my old age, I’ve gotten more lenient than I used to be. I used to 

get one positive and I thought I ought to send people to jail right then 

because you defied the Court, defied the law. So at the urging, primarily of 

probation, I let it go two or three—go through some counseling [and] some 

treatment. You’ve been through all that. And I’m just concerned there’s 

not much I can do. And probably what you would like me to do is . . . let 

you serve your time, and then you can go do with your life whatever you 

choose to do. I just hope you . . . do something constructive that doesn’t 

involve marijuana. 

. . . . 

 The Court has considered the violation policy statements . . . in 

Chapter 7 of the United States Sentencing Guideline manual now in effect, 

and view[s] those policies as advisory in nature for the purpose of these 

proceedings. I’ve considered the nature and circumstances of the violation 

conduct and history and characteristics of the offender. Mr. Steele has 

shown little regard for the rules and conditions of supervised release as 

indicated by his possession and use of marijuana during his term of 

supervised release. 

 The sentence imposed is within the authority specified in 18 United 

States Code, Section 3583(e)(3). Said sentence is reasonable, provides just 

punishment for noncompliance, is an adequate deterrent to criminal 

conduct, and promotes respect for the law. 

(R. Vol. II at 24-27.) 

The court informed Steele of his right to appeal and then asked each party whether 

there was “[a]nything further.” (Id. at 28.) The government said “[n]o” and defense 

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counsel responded with a request that the court recommend Steele be permitted to serve 

his sentence in Beaumont, Texas. (Id.) 

II. DISCUSSION 

Steele does not challenge the revocation of his supervised release. Rather, he 

complains 18-months imprisonment is unreasonable in light of the guidelines’ 

recommendation of 4 to 10 months and the facts and circumstances of this case. In 

addition, he says the court failed to adequately explain its decision to deviate from the 

guidelines’ recommendation, especially after acknowledging Steele’s demonstrated 

ability to maintain employment and support his children. To avoid plain error review, he 

claims the district court erred in failing to elicit objections after imposing sentence, 

thereby preventing him from ascertaining (or challenging) the court’s reasons for 

deviating from the guidelines’ recommendation. 

A. Failure to Elicit Objections

In United States v. Jones, the Eleventh Circuit held that after imposing sentence, a 

district court must give the parties the opportunity “to object to the . . . court’s ultimate 

findings of fact and conclusions of law and to the manner in which the sentence is 

pronounced.” 899 F.2d 1097, 1102 (11th Cir. 1990), rev’d on other grounds, United 

States v. Morrill, 984 F.2d 1136 (11th Cir. 1993). It reasoned such a procedure would 

“serve the dual purpose of permitting the district court to correct on the spot any error it 

may have made and of guiding appellate review.” Id. “In applying the Jones rule, [the 

Eleventh Circuit] has held that when the district court merely asks if there is ‘anything 

further?’ or ‘anything else?’ and neither party responds with objections, then the court 

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has failed to elicit fully articulated objections and has therefore violated Jones.” United 

States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007). “Under this rule, when a 

district court fails to elicit objections after imposing a sentence, [the appellate court] 

normally vacate[s] the sentence and remand[s] to the district court to give the parties an 

opportunity to present their objections.” Id. at 1347. But a remand is not necessary when 

the record on appeal is sufficient to enable adequate review. Id. In the Eleventh Circuit 

Jones applies to supervised release revocation proceedings. Id. at 1348. Not all circuits 

agree. United States v. Starnes, 583 F.3d 196, 219 n.12 (3d Cir. 2009) (rejecting Jones 

rule, stating, inter alia, “we have never adopted such a supervisory rule and, in light of 

our precedents, we doubt the propriety of doing so”); United States v. Vanderwerfhorst, 

576 F.3d 929, 934 (9th Cir. 2009) (rejecting imposition of a requirement that district 

courts elicit objections after announcing sentence). 

Relying on Jones and Campbell,

2

 Steele argues the district court erred in failing to 

elicit objections from the parties after imposing sentence, thereby preventing him from 

determining the reasons behind the court’s deviation from the guidelines’ recommended 

sentencing range. Even though the court asked both parties whether there was 

“[a]nything further” and neither party responded with an objection, Steele claims the 

court did not fulfill its obligation of eliciting objections. (R. Vol. II at 28.) 

This issue has not previously been presented in this Circuit. We side with the 

 

2

 As the government points out, the Sixth Circuit imposes a similar requirement on 

the district courts within its circuit. See United States v. Bostic, 371 F.3d 865, 872-73 

(6th Cir. 2004). 

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Third and Ninth Circuits in concluding a trial judge is not required to specifically elicit 

objections after announcing a sentence. Competent professionals do not require such 

gratuitous superintendence; as long as there is a fair opportunity to register an objection, 

ask for an explanation or request factual findings, counsel must take the initiative thereby 

insuring that silence is not mistaken for acceptance. If a proper record is not made in the 

district court, we will only review for plain error.3

 

In this case a sufficient opportunity was made available. If Steele had objections 

to the sentence imposed or, more particularly, to the decision-making process, he could 

and should have raised them at a time and in such a way as to afford the trial judge an 

opportunity to correct any error, clarify any ambiguity or elaborate as necessary. In any 

event, this judge clearly articulated his (self evident) reasons for imposing a sentence 

outside the recommended range—Steele’s serial violations of the law and supervised 

release terms, the failure of a shorter sentence to deter such violations and the apparent 

futility of substance abuse treatment. 

B. Reasonableness in general

“[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). 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. Rodriguez-

 

3

 The result might be different in a pro se case where a defendant was clearly and 

unfairly disadvantaged. 

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Quintanilla, 442 F.3d 1254, 1256-57 (10th Cir. 2006) (citing United States v. Kelley, 359 

F.3d 1302, 1304 (10th Cir. 2004)).4

 “Our appellate review for reasonableness includes 

both a procedural component, encompassing the method by which a sentence was 

calculated, as well as a substantive component, which relates to the length of the resulting 

sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). “In [Gall v. 

United States, 552 U.S. 38 (2007)], the Supreme Court identified failing to consider the § 

3553(a) factors and failing to adequately explain the chosen sentence as forms of 

procedural error.” Id. (quotations omitted). On the other hand, “[a] challenge to the 

sufficiency of the § 3553(a) justifications relied on by the district court implicates the 

substantive reasonableness of the resulting sentence.” Id. at 804. Steele claims his 

sentence is procedurally flawed and substantively unreasonable. 

1. Procedural Reasonableness 

When a defendant violates a condition of supervised release, the district court 

may, as it did here, revoke the term of supervised release and impose prison time. 18 

U.S.C. § 3583(e)(3). “In imposing a sentence following revocation of supervised release, 

a district court is required to consider both [the] policy statements [contained in Chapter 7 

of the sentencing guidelines], as well as a number of the factors provided in 18 U.S.C. § 

3553(a).” Cordova, 461 F.3d at 1188 (citation omitted). Those factors include: 

The nature and circumstances of the offense; the history and characteristics 

 

4 See also United States v. Wrobel, No. 09-5042, 2010 WL 226960, at *2 (10th 

Cir. Jan. 21, 2010) (Unpublished). Unpublished decisions are not binding precedent. 

10th Cir. R. 32.1(A). We mention Wrobel as we would any other non-precedential 

authority. 

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of the defendant; the need for the sentence imposed to afford adequate 

deterrence, protect the public, and provide the defendant with needed 

educational or vocational training, medical care or other correctional 

treatment in the most effective manner; pertinent guidelines; pertinent 

policy statements; the need to avoid unwanted sentence disparities; and the 

need to provide restitution. 

Id. at 1188-89 (quotations omitted). “The sentencing court, however, is not required to 

consider individually each factor listed in § 3553(a), nor is it required to recite any magic 

words to show us that it fulfilled its responsibility to be mindful of the factors that 

Congress has instructed it to consider before issuing a sentence.” Id. (quotations 

omitted). 

Because Steele did not raise his procedural objection (failure to adequately explain 

the decision to deviate from the guidelines’ recommendation) with the district court, our 

review is for plain error. United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007) 

(because defendant did not object to the district court’s lack of explanation after it 

announced his sentence, plain-error review is appropriate); see also Cordova, 461 F.3d at 

1186 (applying plain error review to sentencing arguments challenging the revocation of 

a term of supervised release because arguments not raised with district court). “We find 

plain error only when there is (1) error, (2) that is plain, (3) which affects substantial 

rights, and (4) which seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.” Romero, 491 F.3d at 1178. Because we discern no error, we need 

not go beyond the first step of the sequential analysis. 

The district court considered the Chapter 7 policy statements as well as the § 

3553(a) factors, in particular, the nature and circumstances of the violations, the history 

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and characteristics of the defendant and the need for the sentence imposed to afford 

adequate deterrence and protect the public. It also adequately explained its decision to 

deviate from the guidelines’ recommendation. While it acknowledged Steele’s provision 

of support for his children was exceptional, it also noted this admirable conduct was 

inconsistent with and eclipsed by his decision to continue to violate the law by using 

marijuana. It was also concerned that he refused to learn from past mistakes—lesser past 

punishment proved not to be an adequate deterrent—and he failed to benefit from 

counseling and treatment. To the extent explanation was required, it was more than met. 

2. Substantive Reasonableness 

We consider the substantive reasonableness of the length of a sentence under an 

abuse-of-discretion standard. Gall, 552 U.S. at 51. “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.), cert. denied, 

130 S. Ct. 198 (2009) (quotations omitted); see also United States v. Ortiz, 804 F.2d 

1161, 1164 n.2 (10th Cir. 1986) (“Under the abuse of discretion standard, a trial court’s 

decision will not be disturbed unless the appellate court has a definite and firm conviction 

that the lower court made a clear error of judgment or exceeded the bounds of 

permissible choice in the circumstances.”). This standard applies without regard to 

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

range. Gall, 552 U.S. at 51. 

The United States Sentencing Commission debated two different approaches to 

sanctioning a violation of supervised release: (1) consider the “defendant’s failure to 

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follow the court-imposed conditions of . . . supervised release as a ‘breach of trust’” or 

(2) sanction the defendant “for the particular conduct triggering the revocation as if that 

conduct were sentenced as new federal criminal conduct.” USSG Ch. 7, Pt. A(3)(b). The 

Commission chose the former approach—“at revocation the court should sanction 

primarily the defendant’s breach of trust, while taking into account, to a limited degree, 

the seriousness of the underlying violation and the criminal history of the violator.” Id. 

This was Steele’s second breach of trust in a fairly short time. Under the guidelines, 

recidivism is generally a reason for increased sentencing severity.5

 

The seriousness as well as the persistence of Steele’s violations, while not the 

primary focus, is also relevant. These were not mere technical violations; possession of 

marijuana is both a federal and state crime. See 21 U.S.C. § 844(a); Okla. Stat. Ann. tit. 

63, § 2-402(A)(1), (B)(2). 

Steele’s sentence was patently reasonable. 

AFFIRMED. 

 

5

 The Comprehensive Crime Control Act sets forth four purposes of 

sentencing. (See 18 U.S.C. § 3553(a)(2).) A defendant’s record of past 

criminal conduct is directly relevant to those purposes. A defendant with a 

record of prior criminal behavior is more culpable than a first offender and 

thus deserving of greater punishment. General deterrence of criminal 

conduct dictates that a clear message be sent to society that repeated 

criminal behavior will aggravate the need for punishment with each 

recurrence. To protect the public from further crimes of the particular 

defendant, the likelihood of recidivism and future criminal behavior must 

be considered. Repeated criminal behavior is an indicator of a limited 

likelihood of successful rehabilitation. 

USSG Ch. 4, Part (A), intro. comment. 

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