UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARCUS DEWAYNE OAKES, Defendant - Appellant. No. 21-6147 (D.C. Nos. 5:10-CR-00154-F-3 & 5:09-CR-00081-F-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , BALDOCK , and McHUGH , Circuit Judges.

________________ _________________ Marcus Dewayne Oakes appeals the dist rict court’s imposition of a 5-month term of imprisonment in connection with th e revocation of his term of supervised release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we af firm the sentence.
I. BACKGROUND In 2009 and 2011, the district cour t sentenced Mr. Oakes to terms of incarceration and supervised release in two unrelated cases. In the first case,

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedur e 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 16, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6147 Document: 010110697911 Date Filed: 06/16/2022 Page: 12 Mr. Oakes pleaded guilty to using and br andishing a firearm during a crime of violence, and the district court senten ced him to 84 months’ imprisonment and a four-year term of supervised release. In the second case, Mr. Oakes pleaded guilty to distributing crack cocaine, and the distri ct court sentenced him to 37 months’ imprisonment and a three-year term of superv ised release. The di strict court ordered the second term of imprisonment to run cons ecutive to the first and ordered the terms of supervised release to run concurrently. Mr. Oakes’s terms of supervised release began on D ecember 5, 2018. Mr. Oakes’s probation officer notified the district court that Mr. Oakes violated conditions of supervision on six separate occasions. The violations largely revolved around Mr. Oakes’s continued marijuana usag e. On October 13, 2021, Mr. Oakes’s probation officer submitted identical petitions in both cases for a warrant or summons to revoke Mr. Oakes’s supervised releas e. The probation o fficer alleged two violations: (1) Mr. Oakes submitted seve n urine samples that tested positive for marijuana throughout 2021 and admitted to using mar ijuana and (2) Mr. Oakes submitted three diluted urine specimens in 2021 and failed to submit twelve urine specimens as required by the terms of s upervised release. The district court authorized the issuance of summons in both cases and held a consolidated revocation hearing. The United States Sentencing Guide lines (“Guidelines”) range for violating the conditions of supervised release in the first case was 5–11 months’ imprisonment and a three-year term of supervised re lease. For violating the conditions of supervised release in th e second case, the Guidelin es range was 7–13 months’ Appellate Case: 21-6147 Document: 010110697911 Date Filed: 06/16/2022 Page: 23 imprisonment and a three-year term of supe rvised release. Pursuant to 18 U.S.C. § 3583(g)(3)–(4), revocation was mandato ry because Mr. Oakes submitted positive urine specimens and failed to provide urine specimens entirely on several occasions. The probation officer recomme nded 7 months’ incarceration and a two-year term of supervised release. At the revocation hearing, the district court heard argument from both parties regarding the appropriate disposition. Mr . Oakes’s counsel di scussed Mr. Oakes’s medical history at length and highlighted ongoing complications from a previous surgical procedure. Mr. Oakes himself addressed the court and explained his marijuana usage largely re lated to pain from those ongoing medical issues. Following argument, the district court e xplained, “I am going to, if you will, bend over backwards and impose a sentence of incarceration at the bottom of the guideline range, which is a sentence of five months of incarceration to be followed by 24 months of supervised release,” a se ntence that the distri ct court stated was “sufficient but not greater than necessary to achieve the statutory objectives of sentencing.” ROA Vol. III at 17. In explaining its decisi on, the district court noted Mr. Oakes’s “extraordinarily serious” crim inal history as we ll as his previous violations of supervised release. Id. at 18. Specifically, the district court explained, “if Mr. Oakes’ underlying offenses were not re lated to drugs or violence, then I might be much more inclined just to wash my hands of the matte r today[;] . . . [h]owever, the two underlying instant offenses that I’ve got are extraordinarily serious,” and “[a]lso in the mix is the appr oximately six previous notific ations that have come to Appellate Case: 21-6147 Document: 010110697911 Date Filed: 06/16/2022 Page: 34 the [c]ourt” from probation re garding other violations. Id. at 18. The district court then stated, “I take into acc ount all of the Section 3553 factors as well as the breach of trust inherent in a viol ation of supervised release, ” before imposing the 5-month

sentence. Id. at 19. Following the district cour t’s revocation of Mr. Oakes’ s supervised release and imposition of a sentence, counsel for Mr . Oakes explained Mr. Oakes required additional surgery. The district court or dered Mr. Oakes to self-surrender following the surgery, approximately three months af ter the revocation hearing. Mr. Oakes filed a timely notice of appeal.
II. DISCUSSION “We will not reverse a se ntence following revocation of supervised release if the record establishes the sent ence is reasoned and reasonable.” United States v. Handley , 678 F.3d 1185, 1188 (10th Cir. 2012) (internal quotation marks omitted). A reasoned sentence “is one that is proce durally reasonable,” while a reasonable sentence “is one that is s ubstantively reasonable.” United States v. McBride , 633 F.3d 1229, 1232 (10th Cir. 2011) (internal quotation mark s omitted). Procedural review “asks whether the sentencing court committe d any error in calculating or explaining the sentence,” while substantiv e review “involves whether the length of the sentence is reasonable given a ll the circumstances.” United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1214–15 (10th Cir. 2008) (quotation marks omitte d). We review sentences for reasonableness under a deferentia l abuse of discretion standard. United States v. Huckins , 529 F.3d 1312, 1317 (10th Cir. 2008). Appellate Case: 21-6147 Document: 010110697911 Date Filed: 06/16/2022 Page: 45 On appeal, Mr. Oakes argues the dist rict court “failed to give full consideration and weight to all of the 18 U.S.C. § 3553 factors, specifically including but not limited to § 3553(a)(2)(D), as well as any consideration of 18 U.S.C. § 3582 which prohibits imposing imprisonment to promote rehabilitation.” Appellant Br. at 6. Specifically, Mr. Oakes argues the district court (1) “ignored Congress’ mandate to provide him with the needed medical care and correctional treatment in the most effective manner,” (2) imposed a sentence of incarceration when “imprisonment is not an appropriate means of promoting his correction and rehabilitation,” (3) failed to consider the availability of appropriate substance abuse program s, and (4) imposed a sentence of incarceration “which was grea ter than necessary in this case.” Id. at 9, 11, 13–14. Because the sentence was both reas oned and reasonable, however, we affirm. 1 Mr. Oakes did not object to his senten ce on procedural groun ds at sentencing, nor does he raise a plain error argument on appeal. See United States v. Wireman , 849 F.3d 956, 961–62 ( 10th Cir. 2017) (explain ing a defendant must “contemporaneously object in th e district court to the me thod by which the district court arrived at a sentence” in order “to avoid plain erro r review on appeal of any alleged procedural flaw”). Because he does not make a plain error argument at all on appeal, he has waived plain error review of any procedural re asonableness claim. See United States v. Fagatele , 944 F.3d 1230, 1239 (10th Cir. 2019) (explaining this

1 It is not clear from Mr. Oakes’s brie f whether he is ch allenging his sentence on procedural or substantiv e reasonableness grounds. We therefore address both the procedural and substantive reas onableness of the sentence. Appellate Case: 21-6147 Document: 010110697911 Date Filed: 06/16/2022 Page: 56 court may consider a plain error argument in a criminal case if raised in a reply brief); see also United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019) (“When an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived.”). Rega rdless, the sentence imposed was procedur ally reasonable. Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating th e Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly err oneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States , 552 U.S. 38, 51 (2007). The district court did not fail to calculate or improperly calculate the Guidelines range, nor did it treat the Guid elines as mandatory. The district court explained its decision was ba sed on Mr. Oakes’s prior crim inal history and previous supervised release violations, and there is no evidence these conclusions were based on erroneous facts. The district court also explicitly stated it cons idered the § 3553(a) factors throughout its discussion of Mr. Oa kes’s personal circum stances and history and the nature of his criminal offenses and supervised rele ase violations. The sentence was therefore pro cedurally reasonable. In addition, looking to “all the circumstan ces” in light of th e factors set forth in 18 U.S.C. § 3553(a), we conclude th e sentence was substantively reasonable. Alapizco-Valenzuela , 546 F.3d at 1214 (quotation marks omitted). A within-Guidelines sentence such as this one is pr esumptively reasonable. United States v. Gambino-Zavala , 539 F.3d 1221, 1232 (10th Ci r. 2008). In reaching its Appellate Case: 21-6147 Document: 010110697911 Date Filed: 06/16/2022 Page: 67 sentencing decision, the distri ct court explicitly considered the two underlying instant offenses, which it described as “extrao rdinarily serious,” as well as “the approximately six previous no tifications that have come to the [c]ourt” regarding other violations. ROA Vol. III at 18. The district court th en stated, “I take into account all of the Section 3553 factors as we ll as the breach of trust inherent in a violation of supervised release.” Id. at 19. Given Mr. Oakes’s past criminal history and continued violations of his supervised release, the district court’s decision to impose a sentence at the low-end of the Gu idelines recommendation was not outside the realm of “rationally permissible choices.” United States v. McComb , 519 F.3d 1049, 1053 (10t h Cir. 2007). While the district court mi ght have weighed the § 3553( a) factors differently, Mr. Oakes has not shown that the distri ct court’s sentence was substantively unreasonable—only that he wishes it had reached a different conclusion by putting more weight on certain factors such as his physical health and need for rehabilitation. 2 And in this case, as in many cas es, there is a “range of possible outcomes the facts and law at issue can fairly support,” but we “defer to the district court’s judgment so long as it falls within the realm of rationally available choices.” Id. The district court’s sentence is substantively reasonable because it fe ll within the

2 To the degree that Mr. Oakes argues the district cour t did not properly consider his medical needs, this is unsubstantiated by the record. The district court heard testimony and argument on Mr. Oake s’s medical condition and even deferred his appearance to serve his se ntence for three months to al low him the opportunity to have a necessary surgery. Appellate Case: 21-6147 Document: 010110697911 Date Filed: 06/16/2022 Page: 78 range of permissible sent encing choices and was suppor ted by a consideration of § 3553(a) factors, specifically Mr. Oakes’s criminal history and repeated violations of supervised release.
III. CONCLUSION For these reasons, we A FFIRM the sentence.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 21-6147 Document: 010110697911 Date Filed: 06/16/2022 Page: 8