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United States v. Porter

United States Court of Appeals, Tenth Circuit

October 10, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
SHANNON LASHEA PORTER, Defendant-Appellant.

         Submitted on the briefs:[*]

          Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:12-CR-00015-CVE-1)

          Michael Reese, Michael Reese, LLC, Cheyenne, Wyoming, for Defendant-Appellant.

          R. Trent Shores, United States Attorney, and Charles M. McLoughlin, Assistant United States Attorney, Office of the United States Attorney for the Northern District of Oklahoma, Tulsa, Oklahoma, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, O'BRIEN and MATHESON, Circuit Judges.

          O'BRIEN, Circuit Judge.

         Between 2006 and 2010, Shannon Porter used the TurboTax software program to electronically file 123 false tax returns with the Internal Revenue Service (IRS) requesting $357, 361 in refunds. The returns contained accurate taxpayer identification information which Porter either stole or purchased from the taxpayer or a third party. However, the returns falsely reported the taxpayer to be self-employed[1] and as having disabled dependents in order for the taxpayer to be eligible for a refund. Although the IRS rejected many of the returns and requested refunds, it paid out $180, 397 to Porter, which she promptly spent. For this conduct, she pled guilty to making a false statement to the United States in violation of 18 U.S.C. § 287 and was sentenced to 48 months imprisonment to be followed by a three-year term of supervised release. She completed her prison sentence but her release was short-lived.

         In a mere five weeks, she violated the conditions of supervised release by, among other things, stealing $2, 964.92 worth of merchandise from various stores in a local mall. The judge revoked her supervised release and sentenced her to 24 months imprisonment to be followed by a new 12-month term of supervised release. A month after her release from that prison term, she again violated the terms of her release, this time by stealing expensive sunglasses from a local optical store. The judge again revoked her supervised release and sentenced her to 24 months imprisonment; no new term of supervised release was imposed.[2]

         To keep track of the various sentences for discussion purposes, a simple table is helpful:

Imprisonment Sentence

Supervised Release Term

Original Conviction

48 months

36 months*

First Revocation

24 months

12 months**

Second Revocation

24 months

none

         *Served approximately 7 weeks before arrest

         **Served approximately 5 weeks before arrest

         Porter challenges her most recent sentence (24 months in prison, but no new term of supervised release). Before we decide that issue, we must first determine whether Porter waived her right to bring this appeal.

         A. Waiver of ...


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