UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 13-3200 BARRY L. SMITH, Defendant-Appellant. (D.C. No. 2:00-CR- 20150-KHV-DJW-1) (D. Kan.)

___________________ _________________ ORDER AND JUDGMENT *

___________________ _________________ Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges. **

___________________ _________________ After giving Defendant Barry L. Smith multiple chances to clean up his act, the district court revoked his supervised re lease and sentenced him to three years imprisonment—nine months above what th e Guidelines recomme nded. On appeal, Defendant argues his sentence is both proced urally and substantiv ely unreasonable. Defendant’s procedural arguments do not rise to the level of plain error and his sentence was not plainly unreasonable. Thus, exercisi ng jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

* This order and judgment is not binding pr ecedent, except under th e doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, howe ver, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs a nd appellate record, this pane l has determined unanimously to grant the parties’ request fo r a decision on the briefs with out oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1. The ca se therefore is ordere d submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### April 14, 2014
Elisabeth A. Shumaker Clerk of Court-2- I. In 2001, Defendant pled guilty to one count of distributi ng five grams or more of a substance containing methamphetamine, a cl ass C felony, in viol ation of 21 U.S.C. § 841(a)(1), and one count of possession of a firearm in fu rtherance of a drug trafficking crime, a class A felony, in vi olation of 18 U.S.C. § 924(c )(1)(A). The sentence imposed included a term of supe rvised release. At the change of plea hearing, the plea petition and the court incorrectly stated Defendant’s § 924(c) offense was a class D felony and that if Defendant violated the terms of his s upervised release, he could be subject to an additional term of imprisonment of no more than two years . But because Defendant’s 924(c) violation was actually a class A felony , he could actually be sentenced to an additional five years of imprisonment if his supervis ed release was revoked. See 18 U.S.C. § 3583(e). On Nove mber 23, 2011, Defendant was released from prison and started his term of supervised release. On May 8, 2013, while still on supervised release, Defendant’s probation officer filed a report a lleging Defendant had vi olated the terms of his supervised release by, among other th ings, possessing and using methamphetamine, marijuana, and K-2, 1 as well as failing multiple drug tests and lying to his probation officer. The most serious of these vi olations was a grade B violation.

1 K-2, or “Spice,” “refers to a wide variet y of herbal mixtures that produce experiences similar to marijuana . . . .” Drug Facts: Spice (“Synthetic Marijuana”), http://www.drugabuse.gov/publi cations/drugfacts/s pice-synthetic-marijuana, (visited April 9, 2014). “[T]he Drug Enforcement Ad ministration (DEA) has designated the five active chemicals most frequently found in Spice as Schedule I c ontrolled substances, making it illegal to sell, buy, or possess them.” Id.-3- At a revocation hearing on May 15, 2013, Defendant stipulated to the facts in the violation report. Based on Defendant’s crim inal history category of VI and grade B violation, the Guidelines’ non-binding policy statements recommended a custody range of 21 to 27 months. But the district court poi nted out at this heari ng that it was inclined to impose an above-Guideline sentence and coul d send Defendant back to prison for up to five years. Instead of imposing sentence, how ever, the court continued the matter to give Defendant a chance to obtain dr ug treatment. By the next hearing, on July 15, 2013, Defendant had started drug treatment but had again test ed positive for methamphetamine. Defendant admitted “messing up,” but stated he was “try ing very hard.” The court then gave Defendant one last chance . The court continued the h earing until July 29 and stated, “if you miss any drug tests, if you use any drugs, if you do a nything else in violation of the terms of your supervised release, my plan is that I will send you to prison for three years and there will be no supervised release af ter that.” Despite this warning, Defendant again violated the terms of his supervised release when he failed to attend a substance abuse treatment meeting on Ju ly 16 and was asked to leave a treatment meeting on July 23 for being argumentative. On July 29, 2013, the district court re voked Defendant’s supe rvised release and sentenced him to three years imprisonment. In doing so , the court told Defendant it felt “at some level personally betr ayed by your lack of honesty with the court and with the probation office, and I think an yone looking at this file would come to the conclusion that you are not a good candidate for supervision. ” Defendant did not object to the sentence below.-4- II. We review a district court’s sentence fo llowing revocation of supervised release for procedural and substantive reasonablene ss. United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013). Defendant challeng es the procedural reasonableness of his sentence on two grounds. He di d not object on either ground below, so we review these claims for plain error. Id. “Under plain e rror review, the defendant must demonstrate (1) there is error, (2) that is plain, (3) which a ffects substantial rights, and (4) which seriously affects the fairness, integrity, or public reputa tion of judicial proceedings.” Id. at 1226.
A. Defendant first argues he was deprived of his due process right to notice and fair warning because, at the time of the plea underl ying his supervised release, the court and defense counsel incorrectly info rmed him that he could face no more than two additional years of imprisonment if his supervised rele ase was revoked. He relies on the unreported case of United States v. Hoff, 215 F. App’x 720, 724 (10th Cir. 2 007), for the proposition that incorrectly advising a defendant as to th e terms of his supervised release meets the first two elements of plain error. Even a ssuming Hoff persuaded us that Defendant meets these first two elements of plain error, however, Hoff also reveals why Defendant’s claim fails under plain error’s third prong. See id. That is, to show plain error, Defendant must prove the error affected his substantial rights, and to do so, the Supreme Court has held “a defendant is obliged to show a reasonable pr obability that, but for th e error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).-5- Defendant nowhere attempts to make such a showing. Instead, he appears to argue that, had he known he coul d face up to a five-year revo cation sentence rather than a two-year revocation sentence, a reasonable probability exists that he wo uld not have violated the terms of his supervised release. Whatever the legal me rit of this argument, the record here belies it. Defendant learned on May 15, 2013, that he could be sentenced to up to five years imprisonment upon re vocation and was given not one, but two subsequent opportunities to comp ly with his supervised rele ase conditions. Despite these multiple opportunities to avoid the penalty he by then had notice and fair warning of, Defendant continued to violate the terms of hi s supervised release. We therefore need not rely on probabilities to determine whet her Defendant’s subs tantial rights were affected; Defendant’s own ac tions show they were not.
B. Defendant next argues his sentence is procedurally unreasonable because the court violated his right to due proce ss when it based the sentence, “at least in part,” on the fact that it felt “at some level pers onally betrayed” by Defendant’s lack of honesty with the court and probation office. Agai n, because Defendant failed to object below, we review only for plain error. R uby, 706 F.3d at 1225. Defendant fails to sh ow how any error the court may have committed in mentioning its pe rsonal sense of a betrayal of trust was “plain—that is[] . . . ‘clear under current law. ’” United States v. Co rdery, 656 F.3d 1103, 1106 (10th Cir. 2011) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). “An error is clear where the Supreme Court or this court has addressed the issue or where the district court’s interpretation was clearly er roneous.” Id. The Supreme Court has held-6- “the sentencing process . . . must satisfy th e requirements of the Due Process Clause.” Gardner v. Florida, 430 U.S. 349, 358 (1977). Within this framework, “factors that are constitutionally impermissible or totally irrelevant to the sent encing process[ include] the race, religion, or political affilia tion of the defendant . . . .” Zant v. Step hens, 462 U.S. 862, 885 (1983). Defendant provides no Supreme Court or Tenth Circuit authority for the proposition that a district court may not consid er a personal sense of betrayal of trust in the context of a revocation proceeding. Inst ead, he argues that, under United States v. Bakker, 925 F.2d 728 (4 th Cir. 1991), an expression of pe rsonal betrayal goes beyond the permissible scope of the breach of trust the court may consider at sentencing. Bakker holds that a sentencing judge may not take hi s own religious convictions into account in sentencing. Id. at 740. In that sense, Bakker simply extended Zant to prevent a sentencing judge from considering either his ow n or the defendant’s religious convictions at sentencing. This case has nothing to do w ith religious convictions; Bakker is therefore inapposite. Conversely, Defendant recognizes that, in revoking a de fendant’s supervised release, the sentencing c ourt not only may, but “ should sanction primarily the defendant’s breach of trust . . . .” U.S.S. G. ch. 7, pt. A, cmt. 3(b). As such, we do not see how any error in taking the betrayal of trust pers onally rose to the level of plain error. Moreover, Defendant cannot show the dist rict court’s personal sense of betrayal affected his substantial rights because he ca nnot show “a reasonable probability that, but for the error claimed, the re sult of the proceeding would have been different.” See United States v. Dazey, 403 F.3d 1147 (10th Cir. 2005). The district court warned-7- Defendant on July 15 that it w ould impose a three-year revoca tion sentence if he violated his supervised release again. The court ga ve this warning two weeks before commenting on its personal sense of betrayal and imposi ng sentence. We have no reason to believe that, had the court not felt personally betray ed, it would have imposed a lighter sentence than it had already promised. Accordingly, this claim fails.
III. Finally, Defendant argues his sentence is substantively unreasonable because the reasons the district court cite d did not justify a sentence ni ne months above Defendant’s advisory range under U.S.S.G. § 7B1.4. A defendant need no t object below in order to preserve the issue of substantive reasonablen ess. United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006). Neve rtheless, our review is deferential: [O]ur standard of review is “plain ly unreasonable.” In reviewing the sentence and the court’s explanation of it, we will not reve rse if it can be determined from the record to have been reasone d and reasonable. In conducting this analysis, we review the district court’s findings of fact for clear error and its legal interpretations of the Sentencing Guidelines de novo. United States v. Kelley, 3 59 F.3d 1302, 1304 (10th Cir. 2004) (internal marks and citations omitted). “D efendant must do more than show that his preferred sentence was a reasonable one. In virtually every case, many sentences would be reasonable. To obtain relief, he must show that the actual sent ence imposed was outside this range of reasonableness.” United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). Defendant does not argue the district court committed clea r error as to any factual findings, nor does he argue the court erred in interpreting the Guid elines. Rather, he-8- argues his sentence is unreaso nable because the court “ove rlooked, or did not attach sufficient weight to,” the facts that Defendant (1) did not violate his supervised release for over a year before rela psing and (2) had im proved his attitude so mewhat after he started drug treatment. This is not enough to show that a sentence nine months above that recommended by the Guidelines was out side the range of reasonableness. The district court gave Defendant two extra chances to clean up his act and comply with the terms of his supervised release. Both times the court warned him of the consequences he faced if he failed to do so. Both times Defendant disregar ded the court’s warnings and continued to violate the terms of his supervised release. In light of Defendant’s flagrant disregard for the court’s warnings and the term s of his supervised release, we fail to see how his revocation sentence is plainly unreasonable.
AFFIRMED. Entered for the Court,

Bobby R. Baldock United States Circuit Judge