United States v. Tyrone Hogan , 604 F. App'x 501 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0453n.06
No. 14-2437
FILED
UNITED STATES COURT OF APPEALS Jun 16, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
TYRONE HOGAN, ) MICHIGAN
)
Defendant-Appellant. )
*
BEFORE: BOGGS and KETHLEDGE, Circuit Judges, BLACK, District Judge.
PER CURIAM. Tyrone Hogan, a federal prisoner, appeals the six-month sentence
imposed for his violation of his conditions of supervised release.
Hogan entered a guilty plea in 2009 to charges of bank fraud conspiracy, wire fraud, and
conduit campaign contributions. He was granted a downward variance in his sentence, resulting
in a sentence of twelve months and one day of imprisonment, three years of supervised release,
and restitution of over $2 million. His period of supervised release began in April 2013. In
August 2014, the district court held a hearing on Hogan’s violation of the conditions of
supervised release. Hogan admitted that he failed to pay anything towards his restitution and that
he tested positive for cocaine. Hogan had not documented any attempt to obtain employment,
*
The Honorable Timothy Black, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 14-2437
United States v. Hogan
but he represented at the hearing that he had recently found a job. The district court granted
Hogan a “zero tolerance” adjournment. Three months later, Hogan still had failed to make any
payments on the restitution judgment. The guidelines sentencing range for the more serious
violation of supervised release, using a controlled substance, was six to twelve months of
imprisonment; the district court sentenced Hogan to six months with no further period of
supervised release. Hogan raised no objection to the sentence.
On appeal, Hogan argues that the district court failed to consider the relevant sentencing
factors and that his failure to pay restitution was not willful. Because Hogan raised neither of his
procedural objections below, thus denying the district court an opportunity to correct any
problems, we review the judgment for plain error only. See United States v. Polihonki, 543 F.3d
318, 323 (6th Cir. 2008). To establish plain error, an appellant must demonstrate, inter alia, that
the alleged errors affected the outcome or fairness of the proceeding. United States v. Babcock,
753 F.3d 587, 590-91 (6th Cir. 2014).
Hogan complains that the district court failed to consider relevant sentencing factors.
The discussion of the reasons for a sentence within the guidelines range need not be lengthy.
United States v. Lapsins, 570 F.3d 758, 774 (6th Cir. 2009). No ritual incantation of the factors
is required where the reason for the sentence is obvious. Polihonki, 543 F.3d at 324. Here, as
discussed at the August hearing, the relevant factors were the seriousness of Hogan’s violations
and the need for deterrence. He was given a zero-tolerance adjournment and still failed to make
any bona fide effort to make payments toward his restitution responsibility. Although he now
argues that his failure to pay was not willful, he admitted at the hearing that he considered
waiting until his supervised release period expired to obtain employment that did not need to be
approved by his probation officer. He does not argue that his use of a controlled substance was
-2-
No. 14-2437
United States v. Hogan
not willful. Hogan has demonstrated no procedural error affecting the outcome or fairness of the
sentencing hearing. To the extent that Hogan challenges the substantive reasonableness of his
sentence, he has not overcome the presumption that his sentence at the bottom of the guidelines
range is reasonable. See, e.g., United States v. Robinson, 503 F.3d 522, 528 (6th Cir. 2007).
Accordingly, we affirm the district court’s judgment.
-3-