United States v. Terrell Mason ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0418n.06
No. 21-1814
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 19, 2022
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, )
ON APPEAL FROM THE
)
v. UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
)
TERRELL DWAYNE MASON, DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
OPINION
)
Before: GUY, WHITE, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. After Terrell Mason violated his supervised-release conditions
for a third time, the district court determined that some additional deterrence was in order and
sentenced Mason to an above-Guidelines sentence. Mason challenges the reasonableness of that
sentence. We AFFIRM.
I.
Terrell Mason pleaded guilty to conspiracy to commit wire and mail fraud. The district
court sentenced him to 76 months’ imprisonment to be followed by 3 years of supervised release.
Mason began supervised release in 2015 but violated his conditions in June 2018 by fraudulently
using another person’s credit card. For this, the district court sentenced Mason to “1 day, time
served,” plus another 3 years of supervised release. A few months into his next supervised-release
term, Mason again violated various supervised-release conditions. The court revoked Mason’s
No. 21-1814, United States v. Mason
supervised release and sentenced him to 10 months’ imprisonment to be followed by 26 months
of supervised release.
Mason began his third supervised-release term in April 2020. He quickly violated its terms
too, including by filing over 40 fraudulent claims for unemployment insurance with the State of
Michigan. This conduct also led to charges of aggravated identity theft, mail fraud, wire fraud,
and money laundering. Mason admitted to violating his supervised-release conditions, and the
district court varied upward from the Guidelines range of 6-to-12 months and imposed a sentence
of 24 months’ imprisonment with no further term of supervised release. The district court
determined that the sentence should run consecutively to the sentence imposed for the underlying
conduct. Mason appeals.
II.
A criminal sentence must be both procedurally and substantively reasonable. United States
v. Morgan, 687 F.3d 688, 693 (6th Cir. 2012); see also United States v. Bolds, 511 F.3d 568, 578
(6th Cir. 2007) (sentence on revocation of supervised release). Procedural reasonableness requires
the court to “properly calculate the guidelines range, treat that range as advisory, consider the
sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select
the sentence based on facts that are not clearly erroneous, and adequately explain why it chose the
sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018) (citing Gall v. United States,
552 U.S. 38, 51 (2007)). Substantive reasonableness focuses on whether a “sentence is too long
(if a defendant appeals) or too short (if the government appeals).” Id. at 442. “The point is not
that the district court failed to consider a factor or considered an inappropriate factor; that’s the
job of procedural unreasonableness.” Id. Instead, substantive unreasonableness is “a complaint
that the court placed too much weight on some of the § 3553(a) factors and too little on others in
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sentencing the individual.” Id. We review claims of both procedural and substantive
unreasonableness for an abuse of discretion, although we review the district court’s factual
findings for clear error and its legal conclusions de novo. Id. at 440, 442.
Procedural Reasonableness. Mason challenges the procedural reasonableness of his
sentence in two ways. Because Mason did not object after the sentence was pronounced and the
district court asked for any objections, we review for plain error only. United States v. Bostic, 371
F.3d 865, 872–73 (6th Cir. 2004).
First, Mason says the district court erred by not giving notice of its intent to sentence above
the Guidelines pursuant to Federal Rule of Criminal Procedure 32(h). But Rule 32(h)’s notice
requirement applies only to departures, not variances. Irizarry v. United States, 553 U.S. 708, 714
(2008). Here, the district court varied from the Guidelines based on its weighing of the § 3553(a)
factors. See United States v. Grams, 566 F.3d 683, 686–87 (6th Cir. 2009) (“A ‘variance’ refers
to the selection of a sentence outside the advisory Guidelines range based upon the district court’s
weighing of one or more of the sentencing factors of § 3553(a).”); see also 18 U.S.C. § 3583(e)(3).
In addition, there is also caselaw suggesting that the rule doesn’t apply to sentences for revocation
of supervised release. See United States v. Smith, 639 F. App’x 348, 351–53 (6th Cir. 2016);
United States v. Baker, 521 F. App’x 371, 374 (6th Cir. 2013); see also United States v. Daoust,
888 F.3d 571, 575 (1st Cir. 2018) (“Rule 32 and its various subparts (including Rule 32(h)) simply
do not apply to sentences imposed for supervised release violations.”). Mason’s Rule 32(h)
argument therefore fails.
Second, Mason says the district court procedurally erred by not providing sufficient reasons
for imposing a consecutive sentence. But it did provide sufficient reasons. A district court need
not “state a ‘specific reason’ for a consecutive sentence.” United States v. Johnson, 640 F.3d 195,
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209 (6th Cir. 2011). It’s enough that the court “makes generally clear the rationale under which
it has imposed the consecutive sentence.” Id. (quoting United States v. Owens, 159 F.3d 221, 230
(6th Cir. 1998)). In Johnson, the district court satisfied this duty by recognizing its discretion to
make the sentence run concurrently or consecutively, offering reasons to support a consecutive
sentence that were “intertwined” with the reasons for the sentence’s length, and indicating that “it
believed a consecutive sentence to be appropriate in light of several § 3553(a) factors.” Id. at 208.
The same can be said for the court here. Given Mason’s repeated violation of his supervised
release conditions, the court determined that it was necessary to impose a sentence sufficient to
deter him from future criminal activity. The variance and consecutive sentence were necessary
“given the extraordinary recidivism that Mr. Mason ha[d] displayed over and over and over again.”
So Mason’s argument that the court didn’t support the consecutive sentence fails. Mason’s
sentence was procedurally reasonable.
Substantive Reasonableness. Mason also asserts that his sentence was substantively
unreasonable because the court unreasonably concluded that Mason’s failure to follow his
supervised-release conditions warranted an above-Guidelines sentence and because the court
placed unreasonable weight on some factors (e.g., punishment, deterrence)1 and not enough on
Mason’s mitigation evidence (evidence he doesn’t describe). But Mason’s three sentences on this
topic merely state conclusions. We treat such cursory arguments made on appeal as forfeited. See
United States v. Martinez, 832 F. App’x 432, 435–36 (6th Cir. 2020). In any event, “[t]he district
court properly considered all of the factors, balanced them, and imposed a reasonable sentence.”
1
Mason’s brief actually says that the district court attached “insufficient weight” to the punishment
and deterrence factors. Appellant Br. at 12 (emphasis added). Because these factors cut against
Mason, not in his favor, we assume that he means that the district court attached too much weight
to these factors.
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No. 21-1814, United States v. Mason
Rayyan, 885 F.3d at 443. That is all we ask. Mason has not shown that his sentence was
substantively unreasonable.
***
We AFFIRM.
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