United States v. Vigil

Filing

[10006859] Affirmed;Terminated on the merits after submissions without oral hearing;Written, signed, published; Judges Lucero, O'Brien (authoring) and Matheson. Mandate to issue. [12-1066]

Appellate Case: 12-1066

Document: 01018925388

Date Filed: 10/02/2012

PUBLISH

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

October 2, 2012

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

No. 12-1066

DENISE ANN VIGIL, a/k/a Denise
Herrera-Ruiz,
Defendant - Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:08-CR-00392-JLK-1)

John F. Walsh, United States Attorney, and Paul Farley, Assistant U.S. Attorney, Denver,
Colorado, for Plaintiff - Appellee
Scott T. Poland of Poland and Wheeler, P.C., Lakewood, Colorado, for Defendant Appellant

Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.

O’BRIEN, Circuit Judge.


After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
submitted without oral argument.

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Denise Ann Vigil appeals from a twelve-month prison sentence imposed on
February 7, 2012, following a series of revocations of probation or supervised release.
She argues the sentence is unreasonable because it is three months longer than the
maximum recommended by the Sentencing Guidelines and no exceptional circumstances
warranted the variance. The judge imposed condign punishment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 4, 2006, Vigil pled guilty to making a false statement, a Class D felony,
in violation of 18 U.S.C. § 1001, for which she was sentenced to three years of probation
with no early discharge. The special conditions of her probationary sentence required her
to: (1) perform 200 hours of community service, (2) complete parenting classes, and (3)
obtain a G.E.D. Although she entered her plea in the Western District of Texas, her case
was transferred to the District of Colorado, when she moved from Texas to Colorado in
2008.
In 2009, Vigil’s probation officer petitioned for revocation of her probation
because she had: (1) pled guilty to child abuse; (2) submitted a report falsely claiming to
have completed 200 hours of community service at Goodwill; and (3) failed to perform
any community service. At an April 1, 2009, hearing, her probation was revoked, and
she was sentenced to time served in detention prior to sentencing (six days) and two years
of supervised release, six months of which was to be in a halfway house. Under the
special conditions of her supervised release, she was ordered to: (1) complete 200 hours
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of community service, (2) reside in a Community Corrections Center for six months, (3)
complete parenting classes, (4) obtain a G.E.D. certificate, (5) take all prescribed
medications and cooperate with random blood tests, and (6) participate in a mental-health
treatment program. At disposition, the judge admonished her:
And if you so much as violate even a curfew rule, you so much as
tell one lie to anybody that is responsible for you as a probation officer or at
that halfway house, you are coming back here, and you’re going to get the
full sentence with no time off.
You are looking now at six months in a halfway house and 18
months on supervised release. And if there’s one violation, you are going
to do the full time that the law permits in prison, not in a halfway house.
Do you understand me?
(R. Vol. III at 8). Vigil responded, “Yes.” Id.
In August 2009, four months later, Vigil admitted to having violated her
supervised release by possessing and using a controlled substance, failing to follow the
instructions of her probation officer, and failing to comply with the rules of the
Residential Re-entry Center (RRC).1 The judge resentenced her to two years of
imprisonment followed by one year of supervised release. The special conditions of that
supervised release required her to: (1) participate in a program of testing and treatment
for drug abuse, (2) participate in mental-health treatment, (3) take all prescribed
medication and comply with random blood tests, (4) perform 200 hours of community
service, and (5) complete parenting classes.

1

The record refers to both a Community Correction Center and a Residential Reentry Center. We assume they are the same, not that it matters much.
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In March 2011, the outset of her supervised release, Vigil agreed to complete ten
hours of community service each week. She not only failed to meet this requirement, but
also never started parenting classes, had numerous absences from her G.E.D. classes, and
missed group counseling sessions. Because she appeared to be following her pattern of
noncompliance with release conditions, her probation officer petitioned to modify the
conditions and also requested that she be placed in a RRC for up to six months, until she
successfully completed the conditions of her supervised release. Vigil did not oppose the
modification. In October 2011, the sentencing judge ordered the modification and placed
her in a RRC. True to past practice, Vigil failed to comply with the RRC rules or
participate in substance-abuse and mental-health treatment. Consequently, a warrant was
issued for her arrest, and a revocation hearing was scheduled.
Prior to the revocation hearing, Vigil had moved for a variant sentence; she
requested to be sentenced to time served (35 days) and have her case terminated. Her
failure to comply with her supervised-release conditions, she claimed, was because of
“mental health issues,” diagnoses of “major depression, chronic, cannabis dependence, in
remission, and obsessive compulsive disorder,” reported in May 2011. Defense counsel
contended the “federal criminal justice system has done enough to try and rehabilitate
Ms. Vigil,” and “such efforts have been counter productive”; thus, further prison time
would not “have any positive benefit either for Ms. Vigil or society.”
Vigil’s probation officer detailed her many supervised-release violations in a
Supervised Release Violation Report. Based on Vigil’s Grade C violations and a
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criminal history category of I, the probation officer recommended the sentencing range
set forth in the Chapter 7 policy statement, which was three to nine months of
imprisonment, U.S.S.G. § 7B1.4(a); the statutory maximum is twenty-four months, 18
U.S.C. § 3583(e)(3). Because of Vigil’s history of noncompliance, the probation officer
recommended a sentence of nine months of imprisonment with no supervised release.
At the February 7, 2012, hearing on Vigil’s supervised-release violations, her
counsel repeated the points made in the motion for a variant sentence. The government
responded:
It’s of particular note that the defendant in this case was convicted,
originally, with a false statement crime. So she was committed with false
statement, which is essentially lying to federal officers, and now,
throughout the course of her supervision, throughout the time of probation,
throughout her initial supervise[d] release, throughout her—now, her
supervise[d] release, she continued to lie to her probation officers. That’s
not a function of depression, that’s a function of someone who hasn’t
gotten the message.
(R. Vol. III at 20-21).
The judge explained his decision not to follow the Sentencing Guidelines:
[Y]our case . . . is astonishing, in that it starts on such a minor basis, but
there hasn’t been a single change in you. You have lied through your first
conviction and you have continued to lie on every single event that’s in this
violation report.
The recommendations of the probation department for a nine-month
sentence is, in my view, made because of the slavish adherence to
sentencing guidelines, rather than . . . what’s genuinely needed. But I also
see the recommendation that no further supervise[d] release be done, and
it’s not because you achieved that much, it’s because it just isn’t worth it.
When there are so many other people who are actually trying to respond
and do what they can to comply with the terms of supervise[d] release.
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So I’m not following that and I am denying the motion for a variant
sentence, because I’m not going to follow the guidelines in this case. I
don’t have to, and the reason I’m not is because I don’t think it’s sufficient.
(Id. at 26-27) (emphasis added). The judge recognized the imprisonment range under the
Chapter 7 policy statement was three to nine months, but chose not to follow it because
the applicable policy statement did not “contemplate the repeated acts and false
statements that are given and the failures to cooperate by this defendant.” He sentenced
Vigil to twelve months of imprisonment, half the maximum allowable sentence of two
years. 18 U.S.C. § 3583(e)(3).
DISCUSSION
Vigil argues the sentencing judge varied from a Guidelines sentence without
sufficiently exceptional justifying circumstances. “In reviewing a sentence imposed after
revocation of supervised release, we review the district court’s factual findings for clear
error and its legal conclusions de novo.” United States v. Handley, 678 F.3d 1185, 1188
(10th Cir. 2012). “We will not reverse a sentence following revocation of supervised
release if the record establishes the sentence is reasoned and reasonable.” Id. (citation
and internal quotation marks omitted). “[A] ‘reasoned’ sentence is one that is
‘procedurally reasonable’; and a ‘reasonable’ sentence is one that is ‘substantively
reasonable.’” United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011).
“Procedural reasonableness addresses whether the district court incorrectly
calculated or failed to calculate the Guidelines sentence, treated the Guidelines as

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mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous facts, or
failed to adequately explain the sentence.” United States v. Reyes-Alfonso, 653 F.3d
1137, 1144 (10th Cir. 2011) (citation and internal quotation marks omitted).
“[S]ubstantive reasonableness review broadly looks to whether the district court abused
its discretion in weighing permissible § 3553(a) factors in light of the ‘totality of the
circumstances.’” United States v. Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). Vigil challenges only the substantive
reasonableness of her sentence.
When a convicted defendant violates a condition of supervised release, the
sentencing judge may revoke the term of supervised release and impose prison time. 18
U.S.C. § 3583(e)(3). The judge must consider the factors in 18 U.S.C. § 3553(a) and the
policy statements in Chapter 7 of the Sentencing Guidelines.2 “[T]he Chapter 7
provisions dealing with violations of supervised release are not mandatory sentencing
guidelines; rather, they merely constitute advisory policy statements.” United States v.

2

Chapter 7 of the Sentencing Guidelines provides:

Under 28 U.S.C. § 994(a)(3), the Sentencing Commission is required to issue
guidelines or policy statements applicable to the revocation of probation and supervised
release. At this time, the Commission has chosen to promulgate policy statements only.
These policy statements will provide guidance while allowing for the identification of
any substantive or procedural issues that require further review. The Commission views
these policy statements as evolutionary and will review relevant data and materials
concerning revocation determinations under these policy statements.
U.S.S.G. Ch. 7, pt. A1.
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Contreras-Martinez, 409 F.3d 1236, 1240 (10th Cir. 2005) (citations and internal
quotation marks omitted); see United States v. Hurst, 78 F.3d 482, 483 (10th Cir. 1996)
(“[T]he policy statements regarding revocation of supervised release contained in Chapter
7 of the U.S.S.G. [,including U.S.S.G. § 7B1.4(a),] are advisory rather than mandatory in
nature”; a sentencing court simply considers them “in its deliberations concerning
punishment for violation of conditions of supervised release.” (citations and internal
quotation marks omitted)). “All discussions of applicable sentences before a district
court following the revocation of supervised release should be grounded in the common
understanding that the district court may impose any sentence within the statutory
maximum.” United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996) (citation and
internal quotation marks omitted).
“In imposing sentences after revocation of supervised release, district courts are
obligated to consider Chapter 7’s policy statements. Magic words, however, are not
required to demonstrate fulfillment of this requirement.” United States v. Tedford, 405
F.3d 1159, 1161 (10th Cir. 2005) (citation omitted). The sentencing judge considered
Vigil’s blatant, repeated violations of the conditions of her probation and supervised
release and determined the three-to-nine-month-imprisonment range recommended in the
Chapter 7 policy statement was insufficient. See United States v. Cordova, 461 F.3d
1184, 1189 (10th Cir. 2006) (affirming as reasonable sentence above the § 7B1.4(a) range
based on convicted defendant’s numerous violations and apparent inability to abide by

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conditions of supervised release); accord United States v. Tsosie, 376 F.3d 1210, 1218
(10th Cir. 2004); United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004).
Vigil argues her sentence is unreasonable because, although she “remained
unmotivated throughout her term of supervised release,” and had a “propensity to
misstate the truth,” those characteristics do “not constitute ‘severe’ or ‘exceptional’
behavior.” (Appellant’s Br. at 16). But a court does not need to find severe or
exceptional circumstances to impose a sentence above the range suggested in the Chapter
7 policy statements, which are not mandatory and even less compelling than established
Guidelines. U.S.S.G. Ch. 7, pt. A. Because the sentencing judge considered the nature
and circumstances of her numerous violations, her history and characteristics, and the
recommended sentence of Chapter 7, Vigil’s sentence is reasonable.3
According to Vigil, however, twelve months of imprisonment is an unreasonable
sentence for her false statement, the crime for which she originally was sentenced. Her
argument is quite at odds with the approach taken by the Guidelines. “[A]t 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

3

Even before United States v. Booker, 543 U.S. 220 (2005), determined the
Sentencing Guidelines are advisory only, we explained “[b]ecause there is no applicable
sentencing guideline for the sentence to be imposed after a violation of supervised
release, our standard of review is plainly unreasonable.” Kelley, 359 F.3d at 1304
(citation and internal quotation marks omitted). The sentence imposed need only be
“reasoned and reasonable.” Id. After Booker, Rita v. United States, 551 U.S. 338,
(2007), and Gall, it would be hard to quarrel with our deferential approach in these kinds
of cases.
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the violator.” Id. at 3(b). Moreover, her argument conveniently fails to recognize how
her behavior has compounded her circumstances—a teaching moment apparently lost.
The first judge used a carrot, encouraging her rehabilitation through participation in
programs; her behavior remained unchanged. The second judge dangled another carrot,
to no avail. He then used a stick, imposing incarceration followed by supervised release;
still no change. The attempts to “provide the defendant with . . . correctional treatment in
the most effective manner” utterly failed. 18 U.S.C. § 3553(a)(2)(D). All that was left
was to impose “just punishment” for her most recent breach of trust. Id. at
§ 3553(a)(2)(A). That was done.
AFFIRMED.

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