Upward Variance for Supervised Release Violation Affirmed

U.S. v. Vigil, 2012 WL 4497354 (10/2/12) (Col.) (Published) - In a Supervised Release violation case, the 10th affirms an upward variance for a series of Grade C violations from a 3-9-month guideline range to 12 months. The d. ct. had twice previously imposed prison time for violations and was frustrated with the defendant's lack of cooperation. The 10th found it irrelevant that the original offense was "merely" a false statement. The sentence was for the breach of trust. No exceptional circumstance was required to justify an upward variance. The 10th says the Chapter 7 policy statements establishing the sentence ranges deserve less respect than guidelines, even though both are now advisory post-Booker. The 10th declares: "All discussions of applicable sentences following a supervised release revocation should be grounded in the common understanding that the d. ct. may impose any sentence within the statutory maximum," (quoting U.S. v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996)).