* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### October 5, 2005

Clerk of Court 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GALE RENEE RUPERT, Defendant-Appellant. No. 04-3466 (D.C. No. 04-CM-80023-JWL) (District of Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Gail Renee Rupert was convicted for mail fraud, andwas sentenced to six months imprisonment with five years of supervised r elease. While serving supervised release, she violated its terms. The di strict court revoked her supervised release and sentenced her to the maximumsentence of three years imprisonment for her violations. She appeals her s entence, arguing that it is-2-

unreasonable. We affirm. At sentencing, Ms. Rupert stipulated that during he r term of supervised release, she intercepted approximately fifteen chec ks totaling approximately $22,000 that were sent by mail to her employer. Sh e admitted that she deposited these checks into her own account without the knowl edge or permission of her employer, and that she did not disclose these trans actions to her probation officer. The district court found she had violated the condi tions of her release because she committed another crime, failed to abide by certain special financial conditions, and failed to provide a truthful written monthly re port. It explained its sentencing decision in the following manner: [T]his defendant has probably the most amazingly ba d supervised release performance I’ve seen in 13 years in terms of turni ng right around after having been convicted and engaging in a pattern of lies and deception, theft, and showing absolutely no remorse for it. I believe the appropriate thing to do is to revoke her supervised release, give her the maximum under the statute of three years in prison, and hope that this time around she learns her lesso n because I see no basis here to believe that continuing to treat her with a ny degree of flexibility is likely to benefit society or probably her. So thatis what I intend to do.

. . . . In addition to what I’ve already said, I’ve conside red the nature and circumstances of the violations, the characteristic s of the defendant, and the sentencing objectives required by statute. The cou rt has also considered the advisory and nonbinding Chapter 7 policy statements issued by the Sentencing Commission. The court therefore intends to revoke the defendant’s supervised release and sentence her to a term of three years with no supervised release to follow. Rec., vol. I, doc. 18 at 26-27. The court further found:-3-

The defendant’s criminal behavior during her origin al offense of conviction involved defrauding employers and cowork ers, obtaining these individuals’ personal information, such as names and social security numbers; she then used their identifiers t o open up charge accounts. She was sentenced to a short period of i ncarceration and was released for supervision. She reverted back to that same form of criminal activity almost immediately after placemen t on supervised release. She has once again proven herself untrustworthy by defrauding her employer of a large sum of money. S he also failed to comply with the objectives as outlined by the Unite d States Probation Office and has demonstrated complete disregard for the court. The defendant’s actions warrant the most severe penaltythat can be levied by this court, and hopefully that will serve as a deterrent to future such behavior. Id. at 27-28. Ms. Rupert argues that her sentence is unreasonable because it exceeds the recommended term of confinement found in Chapter 7 of the United States Sentencing Guidelines, it is significantly greater than the guideline range applicable to her conduct had she been separately p rosecuted in federal court, and it is more than double the punishment that would have been imposed in a similar state court prosecution. “[W]e will not reverse a revocation sentence impose d by the district court if it can be determined from the record to have been r easoned and reasonable.” United States v. Contreras-Martinez , 409 F.3d 1236, 1240-41 (10th Cir. 2005) (quoting United States v. Tsosie , 376 F.3d 1210, 1218 (10th Cir. 2004) (internal brackets omitted)). In imposing a revocation sente nce, the district court must1 These factors include:

1) the nature and circumstances of the offense, 2) the history and characteristics of the defendant, 3) the need for t he sentence to afford adequate deterrence to criminal conduct, 4) the nee d to protect the public from further crimes of the defendant, 5) the need to provide the defendant with needed training, medical care, o r correctional treatment, and 6) the sentencing range established under the sentencing guidelines or the policy statements appl icable to a violation of supervised release. United States v. Kelley , 359 F.3d 1302, 1304 (10th Cir. 2004); see also 18 U.S.C. § 3553(a).

-4- consider the factors listed in various subsections of 18 U.S.C. § 3553(a) 1 and state the reasons for its sentence. United States v. Kelley , 359 F.3d 1302, 1304-05 (10th Cir. 2004). It must also consider the policystatements in Chapter 7 of the Sentencing Guidelines, but those “policy statements recommend a range of imprisonment upon revocation of supervised release, and are advisory rather than mandatory in nature.” Id. at 1305 (quotation marks omitted). In conducting our analysis, we review the district court’s findings o f fact for clear error, and its legal interpretations of the Sentencing Guidelines de novo

. Id. at 1304 (citation omitted). The record demonstrates that the district court con sidered the factors set forth in § 3553(a) in imposing the maximum sentence of three years. In particular, it focused on the need for deterrence, protection of the public, and correctional treatment of Ms. Rupert. It also stat ed that it considered the Chapter-5-

7 policy statements and viewed them as advisory. I t characterized Ms. Rupert’s conduct as “probably the most amazingly bad supervi sed release performance I’ve seen in 13 years” due to her repeated and unremorse ful pattern of lying and theft. Rec., vol. I, doc. 18 at 26. The district court’s sentencing decision was reasoned, and there is nothing in the record that demonstrate s it was not reasonable. Ms. Rupert asserts that the best measure of reasonableness is a reference to the guideline sentence for the offensive conduct un derlying the supervised release revocation. We have held that when sentencing for violation of the terms of supervised release, the district court does not hav e a duty to consider the guideline range applicable to the defendant’s origi nal offense. Kelley , 359 F.3d at 1306, 1307 (noting that we have repeatedly “approve d sentences above the Chapter 7 range without any indication that the dis trict court considered the sentencing range that originally applied to the und erlying offense”). Nor are we persuaded the court has a duty to consider the sent ence that would have been imposed for the revocation violation conduct in either federal or Kansas state court, as asserted by Ms. Rupert. Because the revo cation sentence primarily sanctions a defendant’s breach of trust, supervisedrelease violators are not in a comparable position to defendants facing initial se ntencing for commission of the crime underlying the revocation of supervised relea se. Cf. at 1307.-6-

For the foregoing reasons, we AFFIRM Ms. Rupert’s sentence.

ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge