United States v. Olinger, 10th Cir. (2011)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS September 15, 2011

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

Plaintiff-Appellee,
No. 10-4187
(D.C. No. 2:09-CR-00103-DS-1)
(D. Utah)
v.
BRIAN CHARLES OLINGER,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
Defendant Brian Charles Olinger appeals from the eighteen-month term of

imprisonment the district court imposed after he pled guilty to three Grade C
violations of his supervised release. Exercising jurisdiction under 28 U.S.C.
1291 and 18 U.S.C. 3742(a), we affirm.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Procedural History
a. The Violations of Supervised Release
On September 30, 2009, defendant was sentenced to fifteen months
imprisonment and 120 months supervised release on one count of failing to
register as a sex offender, in violation of 18 U.S.C. 2250. R., Vol. 1, at 10.
One of the special conditions on his supervised release restricted his use of
computers, and another special condition barred him from viewing, accessing, or
possessing sexually explicit materials. Id. at 11. By mid-March 2010, defendant
had been released from prison and was serving his term of supervised release.
At that time, defendant consented to additional conditions of supervised release,
including additional restrictions on his use of computers. Id., Supp. Vol. 1,
App. A.
In August 2010, a probation officer went to a hostel to check on a
convicted sex offender named Andrew Wright. See id., Vol. 2, at 10, 23, 36-37.
During that visit, the probation officer was told by a staff member that Wright
had been accessing a laptop computer at the room occupied by defendant Brian
Charles Olinger and his girlfriend. Id. at 11. When the probation officer
confronted Wright a few days later, he admitted that he had accessed that
computer with defendant to check his emails. Id. at 11-12. The probation officer
called another probation officer and, together, they went to the hostel to search
defendants room. Id. at 12. Defendant was not there, but his girlfriend was
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outside in the parking lot with Wright. Id. Defendants girlfriend told the
officers that the laptop was there in her car. Id. at 12-13. Wright told his
probation officer that after talking with defendants girlfriend, he was concerned
that it had some things on it . . . that he could get in trouble for and he was
concerned because he had not accessed those things but knew that Olinger had
and another person. Id. at 13. He did not say the word image or tell the
probation officer what was on the computer. Id. Defendants girlfriend admitted
that defendant used the computer, but did not tell the probation officer what was
on it. Id. at 14. The computer was seized and forensically searched on a basic
level. See id. at 18-19. It contained approximately 1500 pornographic images,
including approximately 200 images of child pornography that came from Internet
Explorer. Id. at 26-28, 47.
On September 9, 2010, defendants probation officer filed a petition
alleging that defendant had committed numerous violations of supervised release,
including an allegation that he had possessed pornography and an allegation that
he had possessed child pornography. Id., Vol. 1, at 16-17. On September 22,
2010, the magistrate judge held a probable cause hearing, concluding that most of
the violations would be bound over, including the two allegations that defendant
had possessed pornography. Id., Vol. 2, at 4, 56-57. Defendant ultimately
admitted three of the alleged violations: accessing a computer with Internet
access without prior consent of the U.S. Probation Office, associating with a
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known felon, and possession of alcohol. Id. at 62. The government agreed for
the district court to dismiss, without prejudice, the other allegations, including the
two allegations that defendant had possessed pornography. Id. at 62-63.
The government presented evidence at the probable cause hearing that
defendant had accessed a computer, id. at 11-12, 14, even though he had always
written on his monthly probation reports that he had had no unmonitored or
unapproved access to a computer, id. at 22-23. A search of the computer revealed
that there were accounts in defendants name on Yahoo, Adult Friend Finder, and
Facebook, all of which are Internet sites, id. at 19-21, and defendants girlfriend
indicated that she did not know his password until she asked him for it in order to
tell the government what it was after her computer was seized, see id. at 12-13,
20, 37-38. One pornographic image was linked to defendants email account, id.
at 27, and his probation officer determined that he was not at work at two
significant times when images of child pornography were accessed, id. at 29. But
the probation officer did not know whether the laptop was at the hostel during the
times when child pornography was known to have been accessed, id. at 41; four
other people also had access to the computer in addition to defendant, id.
at 38-39; at least one of the people with access to the computer was Wright, who
was also a convicted sex offender, see id. at 10, 36-38; and the government was
unable to produce any direct evidence that defendant had viewed the child
pornography, id. at 40-41. The probation officer had not checked whether any of
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the other people with access to the laptop were at work or elsewhere when the
images of child pornography were accessed. Id. at 39-40.
b. The Sentencing Hearing

The district court held the sentencing hearing on October 6, 2010. Id.
at 60. The court found that all three admitted violations of supervised release
were Grade C violations. Id. at 72; see also USSG 7B1.1(a)(3). The court
further found that the advisory sentencing range under USSG 7B1.4 was five to
eleven months, based on defendants Criminal History Category of III. R.,
Vol. 2, at 72. Defendant argued that a sentence of five months was adequate to
deter others from getting on the computer when they are not supposed to[.] Id.
at 65. The government asked for a sentence of twenty-four months, the statutory
maximum, based on the overall circumstances[.] Id. at 67; see also 18 U.S.C.
3583(e)(3). The government pointed out that defendant had been convicted of a
sex offense in Oregon and came to Utah as a fugitive. R., Vol. 2, at 67.
Defendant also had a poor criminal history with multiple sex offenses and
fugitive-related charges. Id. The parties disputed whether the evidence showed
that defendant had possessed child pornography, as alleged in the petition.
See id. at 66-71.
The district court sentenced defendant to eighteen months imprisonment
and 120 months of supervised release. Id. at 73. The court considered that
-5-
defendants admission of using a computer upon which there is child

pornography . . . [was] a very serious violation of his supervised release order[,]
id. at 70, and stated its intent to impose a sentence that is more in keeping with
what I feel is the conduct that is represented here[,] id. at 68. The court further
expressed its
concern . . . that [defendant] has accessed a computer that has child
pornography on it. Whether he has seen it or not, I am not that
concerned. The fact is as a convicted sex offender, he has violated
the order to not access a computer, and, in any event, a computer that
has that type of material on it. Whether he can be tied to actually
seeing it or not is not that important to me at this juncture. The fact
is that he has violated the terms of the supervised release by
accessing a computer, and that computer has child pornography on it.
Id. at 71-72. The court acknowledged that several other people also had access to
the computer and that there was no direct evidence that defendant had viewed the
child pornography. Id. at 68. Defendant did not object to the sentence as
pronounced. See id. at 74-75.
II. Standards of Review, Issues on Appeal, and Discussion

a. Standards of Review
[A] sentence imposed after a defendant violates a term of supervised
release should be reviewed under the plainly unreasonable standard set forth at
18 U.S.C. 3742(e). United States v. Rodriguez-Quintanilla, 442 F.3d 1254,
1256-57 (10th Cir. 2006). Under this standard of review, we will not reverse a
sentence if it can be determined from the record to have been reasoned and
-6-
reasonable. Id. at 1257 n.2 (brackets omitted) (internal quotation marks

omitted). Congress requires in 18 U.S.C. 3853(e) that [b]efore deciding
whether to revoke a term of supervised release and determining the sentence
imposed after revocation, the district court must consider the factors set out in
18 U.S.C. 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7). United States v. McBride, 633 F.3d 1229, 1231-32 (10th Cir. 2011).
The violation of a condition of supervised release is a breach of trust and, while
the sentencing court at revocation takes into account the seriousness of the
underlying crime, it is primarily the breach of trust that is sanctioned.
United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005) (citing
USSG Ch. 7, pt. A, introductory cmt.).
The district court exceeded the advisory sentencing range in this case,
making no explicit reference to breach of trust or the factors in 3553(a). It is
not appropriate to apply a presumption of reasonableness to a
revocation-of-supervised-release sentence outside the range suggested by the
Sentencing Commissions policy statements. See McBride, 633 F.3d at 1233
(holding that a presumption [of reasonableness] is also appropriate in reviewing
a revocation-of-supervised-release sentence within the range suggested by the
Commissions policy statements). But even in the context of a sentence for a
violation of supervised release in excess of that recommended by the Chapter 7
policy statements, we have held that the [t]he sentencing court . . . is not
-7-
required to consider individually each factor listed in 3553(a), nor is it required

to recite any magic words to show us that it fulfilled its responsibility to be
mindful of the factors that Congress has instructed it to consider before issuing a
sentence. United States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010) (internal
quotation marks omitted).
b. Issues on Appeal
Defendant expressly raises a substantive challenge to his eighteen-month
term of imprisonment, arguing that his sentence is too long because it is more
than triple the low end of the advisory guideline range and because it reflects
punishment for possession of child pornographyan allegation made in a
violation the government agreed to dismiss because defendant did not admit that
he possessed child pornography and the government could not prove that he did.
However, we construe defendants arguments to also raise a procedural challenge
to the district courts method of calculating his sentence. See, e.g., Steele,
603 F.3d at 807-08 (noting the distinction between a procedural challenge to the
district courts method of calculating a sentence and a substantive challenge
asserting that the sentence is unreasonably long). Defendant argues that the
district court based his sentence on the sentencing factors in 3553(a)(2)(A),
factors defendant asserts the court was not authorized by 3583(e) to consider,
while the court ignored breach of trust and the factors in 3553(a) that it was
-8-
required by 3583(e) to address. Because defendant did not object at the hearing
to the district courts method of calculating his sentence, however, we review his
procedural arguments only for plain error. Id. Defendant must show that there
is (1) error, (2) that is plain, (3) which affects [his] substantial rights, and
(4) which seriously affects the fairness, integrity or public reputation of judicial
proceedings. McBride, 633 F.3d at 1233 (internal quotation marks omitted). We
conclude that defendants arguments are without merit and that his sentence was
reasoned and reasonable.
c. Discussion
Defendants procedural arguments fall short on the first two prongs of his
required showing: he has failed to show plain error. Defendant argues that the
court erred by focusing on the factors in 3553(a)(2)(A)the seriousness of the
offense and just punishment for the offenseinstead of focusing on the required
factors in 3553(a) and his breach of trust for violating the conditions of his
supervised release. Aplt. Br. at 10-11. It is true that 3583(e) states that
sentencing courts are required to consider a number of the factors in 3553(a),
and that subsection 3553(a)(2)(A) is not included in the list of required factors.
But defendant has offered no persuasive argument that the district courts
language can be construed only to refer to the factors in 3553(a)(2)(A), rather
than referring instead to the nature and circumstances of the offense, factors in
-9-
3553(a)(1)a subsection the court was indeed required to consider. As we

have previously observed, Congress never intended . . . for sentencing to become
a hyper-technical exercise devoid of common sense. United States v. Rose,
185 F.3d 1108, 1110 (10th Cir. 1999) (internal quotation marks omitted). In
addition, the courts statement that defendants admission of using a computer
upon which there is child pornography . . . [was] a very serious violation of his
supervised release order[,] R., Vol. 2, at 70, clearly refers to the defendants
breach of trust in admitting a particularly serious violation of his supervised
release. We conclude that defendant has failed to show plain procedural error in
his sentence.
Defendants challenge to the courts justification for the length of his
sentence is also without merit. [W]hen the claim is merely that the sentence is
unreasonably long, we do not require the defendant to object in order to preserve
the issue. United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir.
2006). Therefore, we do not review his substantive challenge for plain error. Id.
But defendant has made no persuasive argument that his sentence is unreasonably
long under the circumstances of this case. He admitted multiple violations of the
terms of release; one of those violations, use of a computer with Internet access,
was of utmost importance for a sex offender; the computer actually had child
pornography on it, even though it was not established that defendant viewed it;
defendant has a poor criminal history; and defendant had been a fugitive from
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Oregon parole. We cannot conclude that the district court abused its discretion by
imposing a sentence of eighteen months.
AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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United States v. Olinger, 10th Cir. (2011)

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS September 15, 2011

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT *

Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

Defendant Brian Charles Olinger appeals from the eighteen-month term of

b. The Sentencing Hearing

defendants admission of using a computer upon which there is child

II. Standards of Review, Issues on Appeal, and Discussion

reasonable. Id. at 1257 n.2 (brackets omitted) (internal quotation marks

required to consider individually each factor listed in 3553(a), nor is it required

3553(a)(1)a subsection the court was indeed required to consider. As we

Entered for the Court

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