UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CHRISTOPHER ULIBARRI, 

 Defendant - Appellant. 

No. 17-2179 

(D.C. No. 1:16-CR-00841-MV-1) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, McKAY, and McHUGH, Circuit Judges.**

_________________________________ 

I. BACKGROUND 

 The district court revoked Christopher Ulibarri’s supervised release because it 

found, after an evidentiary revocation hearing, that he had committed a domestic violence 

crime. For the supervised release violation, it sentenced him to 24 months in prison, the 

maximum term under 18 U.S.C. § 3583(e)(3). The court also placed him on supervised 

release for an additional 10 months after his release, and included a special condition 

regarding his mental health medications. 

 *

 This order and judgment is not binding precedent, except under the doctrines 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 appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 6, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

On appeal, Mr. Ulibarri challenged the sentence as substantively unreasonable. 

He also challenged the special condition, arguing it was “vague, overbroad, more 

restrictive than necessary, and not medically appropriate,” Aplt. Br. at 20, and “made 

no provision for Mr. Ulibarri to get assistance in paying for the medication if he is 

unable to pay for it,” id. at 15. After the appeal was filed and briefed, the following 

sequence took place: 

April 5, 2018 - In reference to the special condition, we ordered the parties to 

“show cause in writing why this case should not be remanded for the district court to 

consider discrepancies between oral statements made at sentencing and the written 

judgment.” Doc. 10548855 at 1. 

 

April 18, 2018 - In their joint response, the parties agreed that a remand to the 

district court would be appropriate for that court to conform its written judgment to the 

oral statements made by the district court at sentencing. Doc. 10552237 at 1-2. 

 

April 19, 2018 - We “direct[ed] a limited remand for the district court to take any 

action it deems necessary to resolve the discrepancies between its written judgment and 

the oral statements made at sentencing.” Doc. 10552477 at 1. We also abated the appeal. 

Id. 

May 21, 2018 - The parties submitted a joint status report stating that the district 

court had entered an amended judgment. Doc. 10560507 at 1. The amended judgment 

contained a revised special condition of supervised release that addressed Mr. Ulibarri’s 

mental health medications. Id., attached. 

May 22, 2018 - We lifted the abatement and ordered the parties to identify the 

issue(s) on appeal that this court should decide. Doc. 10560737 at 1-2. 

May 31, 2018 - The parties filed a joint notice advising that “the only remaining 

issue in this appeal is whether or not Mr. Ulibarri's sentence is substantively 

unreasonable.” Doc. 10563306 at 1. 

As a result of the foregoing, the special supervised condition regarding mental 

health medications is no longer an issue on appeal. The only remaining issue is Mr. 
3 

Ulibarri’s challenge to the substantive reasonableness of his prison sentence. Exercising 

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm. 

II. SUBSTANTIVE REASONABLENESS OF THE SENTENCE 

 The parties agree that the district court correctly calculated the Sentencing 

Guidelines range for Mr. Ulibarri’s violation of supervised release to be 24 to 30 months 

and that, under 18 U.S.C. § 3583(e)(3), the maximum term of imprisonment upon 

revocation was 24 months. The district court sentenced him to 24 months. 

A. Substantive Reasonableness 

A substantive reasonableness sentencing challenge asks us to address “whether 

the length of the sentence is reasonable given all the circumstances of the case in 

light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin–Garcia, 

516 F.3d 884, 895 (10th Cir. 2008) (quotations omitted); see Gall v. United States,

552 U.S. 38, 51 (2007). We “review the substantive reasonableness of a sentence for 

abuse of discretion.” United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013). 

We find no abuse unless the sentence “is arbitrary, capricious, whimsical, or 

manifestly unreasonable.” United States v. Munoz–Nava, 524 F.3d 1137, 1146 (10th 

Cir. 2008) (quotations omitted). 

When, as here, a defendant is sentenced within a properly calculated United 

States Sentencing Guidelines range, the sentence “is entitled to a rebuttable 

presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054 (10th 

Cir. 2006) (quotations omitted). “The sentencing judge is in a superior position to 

find facts and judge their import under § 3553(a) in the individual case.” Gall, 552 
4 

U.S. at 51 (quotations omitted). “The judge sees and hears the evidence, makes 

credibility determinations, has full knowledge of the facts and gains insights not 

conveyed by the record.” Id. (quotations omitted). 

B. The Parties’ Arguments 

Both sides only briefly addressed the substantive reasonableness issue. 

Mr. Ulibarri argues that his sentence was unreasonable because it is longer 

than his original sentence for a felon in possession offense under 18 U.S.C. § 922(g) 

and did not account for how his mental health condition contributed to his supervised 

release violation. He also contends the district court did not explain why the length 

of the sentence was necessary. Aplt. Br. at 24-25. 

The Government argues that the district court considered the violent 

circumstances of his supervised release violation and the § 3553(a) factors. It 

contends we must defer to the relative weight that the district court gave to Mr. 

Ulibarri’s mental health condition and his threat to the community. Aplee. Br. at 25-

26. 

In his reply brief, Mr. Ulibarri faults the district court for failing to explain its 

rationale for the 24-month sentence. Reply Br. at 12-13. 

C. Analysis 

The district court sentenced Mr. Ulibarri to the low end of the Guidelines 

range. His sentence is therefore entitled to a presumption of reasonableness. See

Kristl, 437 F.3d at 1054. At the sentencing phase of the revocation hearing, the 

district court said that it had “considered the factors set forth in 18 U.S.C. [§] 
5 

3553(a)(1)-(7).” ROA Vol. 2, at 62. Mr. Ulibarri’s complaint that his revocation 

sentence was greater than the sentence for his underlying offense does not account 

for the undisputed Guidelines range of 24 to 30 months for the supervised release 

violation. 

His criticism that the court gave insufficient weight to his mental health 

condition is unavailing. First, the court paid considerable attention to Mr. Ulibarri’s 

mental health issues in fashioning the special supervised release conditions, id. at 63-

65, and addressed them in its colloquy with him about the sentence, id. at 69. 

Second, on review for substantive reasonableness, this court does not second-guess 

“the weight a district court assigns to various § 3553(a) factors” or “its ultimate 

assessment of the balance between them.” United States v. Smart, 518 F.3d 800, 808 

(10th Cir. 2008); see United States v. Lewis, 625 F.3d 1224, 1233 (10th Cir. 2010). 

Finally, Mr. Ulibarri’s argument that the district court failed to explain the 

length of the sentence goes not to the substantive reasonableness of the sentence but 

instead to its procedural reasonableness, an argument he did not preserve in district 

court, see Gall, 552 U.S. at 51 (failing to explain a sentence is a procedural error); 

United States v. Pena-Hermosillo, 522 F.3d 1108, 1116 (10th Cir. 2008), and has 

waived because he does not argue for plain error on appeal; United States v. 

DeRusse, 859 F.3d 1232, 1236 n.1 (10th Cir. 2017) (failure to raise procedural 

reasonableness in district court or argue plain error on appeal waives the issue). 
6 

Mr. Ulibarri is unable to overcome the presumption that his sentence was 

substantively reasonable and, therefore, the district court did not abuse its discretion 

in imposing the 24-month sentence. 

III. CONCLUSION

We affirm Mr. Ulibarri’s 24-month prison sentence for his violation of 

supervised release. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge