United States v. Pettigrew, 10th Cir. (2014)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS March 25, 2014

TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
No. 13-1304
(D.C. No. 1:06-CR-00136-WYD-1)
(D. Colorado)
NEIL PETTIGREW,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.
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.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Defendant and Appellant, Neil Pettigrew, appeals the sentence imposed

upon him following the violation of his supervised release. Finding his sentence
neither procedurally nor substantively unreasonable, we affirm that sentence.
BACKGROUND
Mr. Pettigrews initial contact with the criminal justice system occurred in
2006. At that time, while driving a car under the influence of alcohol, he lost
control and caused an accident that resulted in the death of his younger brother.
He was charged with and convicted of involuntary manslaughter. In addition to
serving a term of imprisonment, Mr. Pettigrew was sentenced to a three-year term
of supervised release. That first term of supervised release commenced in April
2009.
Throughout that first term of supervised release, Mr. Pettigrew struggled to
remain sober. Due to his noncompliance with the conditions of his supervised
release, the original conditions were modified twice. In October 2010, after his
third incident involving excessive use of alcohol and failure to participate in a
substance abuse treatment program, Mr. Pettigrews supervised release was
revoked. He was sentenced to five months imprisonment, followed by thirty-one
months of supervised release, which began in December 2010.
In May 2011, his supervised release conditions were modified to include, as
a special condition, that he reside in a residential reentry center for up to 120
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days. In November 2011, Mr. Pettigrews supervised release was revoked for a
second time. He was then sentenced to eight months confinement, followed by a
third term of supervised release, which began in April 2012.
In August 2012, a Farmington, New Mexico, police officer responded to a
suspicious situation at a local general store. Attachment to Supp. Pet.; R. Vol.
1 at 18. The officer encountered Mr. Pettigrew, apparently staggering and under
the influence of alcohol. The police officer decided to transport Mr. Pettigrew to
a detox facility for his safety. While en route, Mr. Pettigrew became hostile and
called the officer profane names. Id. When they arrived, Mr. Pettigrew swung
his fist at the officer, which resulted in a scuffle. Id. After he was handcuffed,
Mr. Pettigrew continued to be resistive and combative. Id.
Mr. Pettigrew pled guilty to Battery Upon a Peace Officer, in violation of
New Mexico law. He was sentenced to eighteen months imprisonment, followed
by a one-year term of mandatory parole. The New Mexico state court ordered
this state sentence to run concurrently with Mr. Pettigrews federal sentence for
violating his supervised release (the sentence at issue in this case).
In preparation for sentencing in federal court on the federal revocation
charge, Mr. Pettigrews probation officer filed a Supervised Release Violation
Report (PSR), R. Vol. 2 at 4. The PSR characterized the state battery
conviction as a Grade A violation for purposes of sentencing under the advisory
United States Sentencing Commission, Guidelines Manual (USSG)
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7B1.1(a)(1). With a criminal history category of III, the PSR determined that
Mr. Pettigrews advisory Guidelines sentencing range was eighteen to twenty-four
months. The PSR noted that the district court had the discretion to impose the
revocation sentence to run concurrently or consecutively to the state sentence for
the underlying offense (in this case, the battery conviction). The PSR further
noted that the state court had ordered the state sentence to run concurrently with
his federal revocation sentence, but explained that the district court is not bound
by this [state court] judgment. PSR at 8; R. Vol. 2 at 11. The PSR ultimately
recommended an eighteen-month sentence, to be served consecutively or partially
consecutively to the state court battery conviction sentence.
Mr. Pettigrew admitted both supervised release violations contained in the
PSR (use of alcohol and the battery conviction), but he filed an Objection to
Supervised Release Violation Report. R. Vol. 1 at 19. In that Objection, he
argued that the battery conviction was not a crime of violence and was, therefore,
properly characterized as a (less serious) Grade B violation for purposes of
determining a revocation sentence under the Guidelines.
At Mr. Pettigrews Supervised Release Violation Hearing, the district court
listened to arguments from defense counsel, the government, and the probation
office, and it reviewed the statutory language, the Guidelines, and Mr. Pettigrews
conduct. The court overruled Mr. Pettigrews objection to the categorization of
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the battery conviction as a Grade A violation of his supervised release. 1 The

court then imposed an eighteen-month sentence, to be served consecutively to the
state court battery sentence. Arguing that this sentence is procedurally and
substantively unreasonable, Mr. Pettigrew appeals.
DISCUSSION
We now review federal sentences for reasonableness, applying a deferential
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011). Our review
proceeds in two steps. First, we must ensure that the district court committed no
significant procedural error. Lente, 647 F.3d at 1030 (quoting Gall, 552 U.S. at
51)). If we conclude that the sentence is procedurally reasonable, we then
consider the substantive reasonableness of the sentence imposed. Gall, 552
U.S. at 51. Mr. Pettigrew challenges both the procedural and substantive
reasonableness of his sentence. We address each in turn.
I. Procedural Reasonableness:
In general, a procedural challenge relates to the method by which the
sentence is calculated. Lente, 647 F.3d at 1030 (quoting United States v.
Wittig, 528 F.3d 1280, 1284 (10th Cir. 2008)). The Supreme Court in Gall
identified the following procedural errors: failing to calculate (or improperly
1
This decision has not been appealed.

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calculating) the Guideline range, treating the Guidelines as mandatory, failing to

consider the [18 U.S.C. ] 3553(a) factors, [and] selecting a sentence based on
clearly erroneous facts. Gall, 552 U.S. at 51. A defendant may also challenge
the procedural reasonableness of a sentence when the district court has failed to
adequately explain the chosen sentence. Lente, 647 F.3d at 1030.
Mr. Pettigrew argues his sentence is plainly procedurally unreasonable
because the district court failed to consider the applicable sentencing factors and
to explain why it imposed a consecutive sentence. Appellants Br. at 11. He
concedes he failed to contemporaneously object to this claimed procedural error,
and so our review is for plain error only. We find plain error only when there is
(1) error, (2) that is plain, (3) which affects substantial rights, and (4) which
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Warren, 737 F.3d 1278, 1285 (10th Cir. 2013).
We have stated that a district court commits a procedural sentencing error
by failing to consider sentencing factors enumerated in 18 U.S.C. 3553(a) or by
failing to offer an individualized assessment of how the factors apply in a
particular criminal defendants case. United States v. Chavez, 723 F.3d 1226,
1232 (10th Cir. 2013). This obligation applies also when a court decides whether
to impose a consecutive or concurrent sentence. Id.; see United States v. Rose,
185 F.3d 1108, 1112-13 (10th Cir. 1999); 18 U.S.C. 3584(b).
We have explained this obligation more fully, however, as follows:
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Where a district court imposes a sentence falling within the range

suggested by the Guidelines, Section 3553(c) requires the court to
provide only a general statement of the reasons for its imposition of
the particular sentence. This generalized statement need involve no
ritualistic incantation to establish consideration of a legal issue, nor
do we demand that the district court recite any magic words to prove
that it considered the various factors Congress instructed it to
consider. We will only step in and find error when the record gives
us reason to think that our ordinary presumption that the district
judge knew and applied the law is misplaced.
Id. (quoting United States v. Benally, 541 F.3d 990, 996-97 (10th Cir. 2008)).
When imposing a sentence following revocation of supervised release, a district
court must also consider the Guidelines Chapter 7 policy statements. See United
States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006).
We agree with the government that, although the district court did not
explicitly reference 3553(a) or Chapter 7 at the sentencing hearing, the record
as a whole makes it clear that the court considered the relevant factors and made
an individualized assessment when deciding to have Mr. Pettigrews sentence run
consecutively to his state sentence. The PSR specifically discussed the
consecutive-vs-concurrent sentence issue, stating:
Pursuant to U.S.S.G. 7B1.3(f), any term of imprisonment imposed
upon revocation of probation or supervised release shall be ordered
to be served consecutively to any sentence of imprisonment that the
defendant is serving, whether or not the sentence of imprisonment
being served resulted from the conduct that is the basis of the
revocation of probation or supervised release.
PSR at 4; R. Vol. 2 at 7 (quoting USSG 7B1.3(f)). But the PSR also made clear
that 7B1.3(f) is merely an advisory policy statement, which did not limit the
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courts discretion. The PSR further reminded the court that it must consider the
3553(a) sentencing factors as well as the Guideline policy statements in
selecting a sentence and determining whether it ran concurrently or consecutively.
And, as indicated above, the PSR ultimately recommended a consecutive, or at
least partially consecutive, sentence to reflect the severity of Mr. Pettigrews
criminal conduct. Given the extensive argument concerning the consecutive
versus concurrent issue, we are convinced of the clarity of the district courts
reasoning.
Similarly, we are confident that the court performed its duty of considering
the 3553(a) sentencing factors and Guideline policy statements when imposing
its within-Guidelines sentence. The court stated it had heard from everybody
who wishe[d] to make a statement and was taking those comments, as well as
the defendants statement into account. Tr. of Sup. Release Violation Hrg at
30; R. Vol. 3 at 33. As we observed in another similar case, [t]he court heard
several different arguments regarding the appropriate sentencing range and was
obviously familiar with the facts of the case. We will not make the useless
gesture of remanding for reconsideration when Defendant was aware at
sentencing that all relevant factors would be considered by the court. United
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States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005). We perceive no plain
procedural error in the district courts calculation of Mr. Pettigrews sentence.
II. Substantive Reasonableness:

As both parties acknowledge, a district court has the discretion to impose
consecutive or concurrent sentences. 18 U.S. C. 3584(a). Furthermore, as
indicated above, the Guidelines policy statements urge that a term of
imprisonment upon the revocation of . . . supervised release shall be . . . served
consecutively. USSG 7B1.3(f). A sentence imposed within the properlycalculated Guideline range, including a sentence imposed for revocation of
supervised release, is accorded a rebuttable presumption of reasonableness.
United States v. McBride, 633 F.3d 1229, 1232-33 (10th Cir. 2011). The
presumption may, of course, be rebutted by demonstrating that the sentence is
unreasonable in light of the other sentencing factors laid out in [18 U.S.C. ]
3553(a). Id. at 1233 (quoting United States v. Kristl, 437 F.3d 1050, 1055
(10th Cir. 2006)).
In considering whether a defendants sentence is substantively reasonable,
we examine 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).
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Chavez, 723 F.3d at 1233 (further quotation omitted). 2 After considering those
factors, we find Mr. Pettigrew has failed to rebut the presumption of
reasonableness accorded his sentence.
He asserts that the sentence is too long because the district court unduly
discounted the disease-like nature of Mr. Pettigrews alcoholism and gave him no
credit for his recent progress in treatment. Appellants Op. Br. at 23. He then
supposes that the only explanation for this sentence is a punitive one. Id. at 24.
But this ignores the fact that this case represents the third time Mr. Pettigrews
supervised release has been revoked. As the government stated, [d]espite . . .
progressively longer periods of incarceration, Mr. Pettigrew still lacks the
motivation to comply with the conditions of his supervised release and maintain
his sobriety. Appellees Br. at 21-22. He has demonstrated a proclivity to
become violent and dangerous when drinking and an inability to abide by
conditions designed to help him address his alcoholism. In short, Mr. Pettigrews
sentence is substantively reasonable.
Mr. Pettigrew points out to us the difficulty of applying a standard of

review like abuse of discretion, noting that our own court has observed that it is
not altogether free from interpretation. United States v. McComb, 519 F.3d
1049, 1053 (10th Cir. 2007). Nonetheless, as we further stated in McComb, it is
a standard we have long familiarity with applying, and one which we have
traditionally understood to mean that we will reverse a determination only if the
court exceeded the bounds of permissible choice, given the facts and the
applicable law in the case at hand. Id. (quoting United States v. Ortiz, 804 F.2d
1161, 1164 n.2 (10th Cir. 1986)).
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CONCLUSION
For the foregoing reasons, finding Mr. Pettigrews sentence procedurally
and substantively reasonable, we AFFIRM that sentence. We DENY his motion
to supplement the record.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS March 25, 2014

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.

Defendant and Appellant, Neil Pettigrew, appeals the sentence imposed

the battery conviction as a Grade A violation of his supervised release. 1 The

This decision has not been appealed.

calculating) the Guideline range, treating the Guidelines as mandatory, failing to

Where a district court imposes a sentence falling within the range

II. Substantive Reasonableness:

Mr. Pettigrew points out to us the difficulty of applying a standard of

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