United States v. Joel Williams , 333 F. App'x 63 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0417n.06
No. 08-2428
FILED
UNITED STATES COURT OF APPEALS Jun 11, 2009
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
JOEL EARL WILLIAMS, ) THE WESTERN DISTRICT OF
) MICHIGAN
Defendant-Appellant. )
)
) OPINION
Before: COLE and ROGERS, Circuit Judges; and GRAHAM, District
Judge.*
GRAHAM, District Judge. Defendant-Appellee Joel Earl Williams
(hereinafter “the defendant”) appeals the judgment of the district
court entered on November 3, 2008, revoking his supervised release
and imposing a term of incarceration of twelve months, to be
followed by a new term of supervised release of sixty months. For
the following reasons, we AFFIRM the judgment of the district
court.
I. BACKGROUND
On May 3, 2004, defendant pleaded guilty to an indictment
charging him with one count of the attempted manufacture of
methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(C). (J.A. 1-9) According to the presentence
investigation report, the application of the United States
Sentencing Guidelines Manual (“U.S.S.G.”) to defendant’s case
*
The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
resulted in a total offense level of 29, Criminal History Category
IV, with a range of 121 to 151 months. (Dist. Ct. Doc. 26,
8/26/04, p. 14) On August 16, 2004, defendant was sentenced to a
term of one hundred months incarceration, to be followed by a five-
year term of supervised release. (J.A. 10-13) The record does not
disclose the district court’s rationale for imposing a sentence
outside the Guidelines sentencing range. Defendant pursued an
appeal from his conviction and sentence. On March 22, 2005,
defendant’s sentence was vacated and the case was remanded for re-
sentencing in light of United States v. Booker, 543 U.S. 220
(2005). (Dist. Ct. Doc. 31, 3/25/05)
On December 23, 2005, the district court entered an amended
judgment imposing a term of incarceration of sixty months, to be
followed by a five-year term of supervised release. (Dist. Ct.
Doc. 32, 12/23/05, pp. 1-2) The district court recommended to the
Bureau of Prisons that the defendant receive intensive drug abuse
therapy and mental health counseling while incarcerated. (Doc. 32,
p. 2) The specified conditions of supervision prohibited the
defendant from committing another federal, state or local crime,
unlawfully possessing and using a controlled substance, and
associating with convicted felons without the permission of his
probation officer. (Doc. 32, p. 3) The conditions of release also
required the defendant to refrain from the use of alcohol. (Doc.
32, pp. 3-4)
On September 25, 2008, defendant appeared before the district
court for an impact hearing, at which the court cautioned defendant
about adhering to the terms of his supervised release. (Dist. Ct.
Doc. 35, 9/25/08; Doc. 52, 11/19/08, p. 33) On October 2, 2008,
2
the probation officer submitted a petition for a warrant to the
court, citing alleged violations by the defendant of conditions of
his supervised release. (Dist. Ct. Doc. 37, 10/2/08) Violation
Number 1 concerned defendant’s alleged commission of a state crime,
based on his receipt on September 30, 2008, of a misdemeanor
citation for operating a motor vehicle in violation of his license
restrictions and M.C.L. § 257.312. (Doc. 37, p. 2) Violation
Number 2 alleged that defendant violated the prohibitions
concerning alcohol use and the unlawful possession of controlled
substances. This violation alleged that during the traffic stop on
September 30, 2008, police officers searched defendant’s vehicle
and found a six-pack of beer, a six-pack of Mike’s Hard Lemonade,
a small quantity of pseudoephedrine pills and an open container of
cranberry juice containing Amoxicillin and pseudoephedrine pills.
(Doc. 37, p. 2) Violation Number 3 charged that defendant had
associated with a convicted felon, based on the defendant’s
admission to his probation officer that he had been associating
with Carrie Crockett, a convicted felon, and that he was en route
to Ms. Crockett’s residence when he was stopped by the police on
September 30, 2008. (Doc. 37, p. 2.) The district court ordered
that a summons be issued for a violation hearing. (Doc. 37, p. 3)
On October 21, 2008, the probation officer submitted an
amended petition to the court charging defendant with three
additional violations. (Dist. Ct. Doc. 43, 10/21/08) Violations
4, 5 and 6 alleged respectively that defendant violated the
prohibitions against committing another crime by possessing
methamphetamine in violation of M.C.L. § 333.7403(2)(b)(i), a
felony punishable by imprisonment for up to ten years; the
possession of controlled substances; and the use of controlled
3
substances. The report stated that a random urinalysis sample
submitted by defendant on October 15, 2008, was submitted for
laboratory analysis and tested positive for amphetamine and
methamphetamine. (Doc. 43, p. 3)
Since Violation 4 alleged the commission of an offense
punishable by a term of imprisonment exceeding one year, it was
classified under the Guidelines as a Grade B violation. See
U.S.S.G. § 7B1.1(a)(2) (2007). Because defendant was in Criminal
History Category IV, this violation carried an advisory guideline
sentencing range of twelve to eighteen months. See U.S.S.G. §
7B1.4(a) (2007). This range applied even if the other alleged
violations were of a lesser grade. See U.S.S.G. § 7B1.1(b)
(2007)(“Where there is more than one violation of the conditions of
supervision, or the violation includes conduct that constitutes
more than one offense, the grade of the violation is determined by
the violation having the most serious grade.”).
By order filed on October 22, 2008, the magistrate judge found
that there was no probable cause to refer Violations 2 and 3 for a
final hearing, but that probable cause existed to bind defendant
over to the district judge for a final hearing on Violations 1, 4,
5 and 6. (Dist. Ct. Doc. 46, 10/22/08)
The district court held a final hearing on the amended
violation petition on October 27, 2008. (Dist. Ct. Doc. 52,
Transcript of Hearing, filed 11/19/08) Matthew Kakabeeke, the
supervisor of Nicholas Bobo, the probation officer assigned to
supervise the defendant since his release from incarceration on
August 5, 2008, was called as a witness by the government. Mr.
Kakabeeke testified based upon his review of the defendant’s file.
4
(Tr. p. 4) Mr. Kakabeeke stated that although defendant had some
problems with unemployment, no noncompliance issues were brought to
Mr. Bobo’s attention prior to the traffic stop on September 30,
2008. (Tr. pp. 4, 9-10) Upon being stopped on September 30th,
defendant informed the officers that he was on federal supervision,
and that Mr. Bobo was his supervising officer. (Tr. p. 11)
Upon the commencement of his supervised release, defendant was
enrolled in Phase 1 drug testing, and was directed to submit to
random urinalysis at the Kalamazoo Probation Enhancement Program
(“KPEP”). (Tr. p. 4) He was not enrolled in drug counseling at
that time. (Tr. p. 10) Under the terms of the contract between
the probation office and Kroll Laboratories, samples were submitted
for an initial screening, and if a positive result was obtained,
the sample was tested again by gas chromatography/mass
spectrometry, which was considered the “gold standard” for this
type of testing. (Tr. p. 12) The confirmation level was set at
250 nanograms per milliliter, which was a relatively high threshold
to provide a margin of error. (Tr. pp. 7-8, 12)
Mr. Kakabeeke further testified that defendant submitted a
sample on October 15, 2008, for a full spectrum screening. (Tr. p.
5) The sample tested positive for amphetamine and methamphetamine.
(Tr. p. 5) Mr. Kakabeeke noted that defendant’s original
conviction involved methamphetamine, and that it was not uncommon
for methamphetamine users to relapse. (Tr. pp. 5-6) Mr. Kakabeeke
further testified that in the two-month period since the
commencement of defendant’s supervised release, defendant would
have submitted between six to eight or ten samples, and that the
test on October 15th was his only positive test. (Tr. p. 6)
The laboratory report did not give a quantitative value
5
concerning the concentration of methamphetamine in defendant’s
system; such a report had to be specially requested. (Tr. pp. 7,
13) The test revealed the presence of D-methamphetamine, 96
percent. The report stated that the specimen was diluted,
indicating that the defendant was trying to flush his system prior
to providing the sample. (Tr. pp. 7-8) Even with the dilution,
the sample tested above the confirmation level of 250 nanograms per
milliliter. (Tr. p. 12) Mr. Kakabeeke testified that there was no
question about the test’s being positive for methamphetamine, and
that even if defendant had used a small amount of methamphetamine,
that would still constitute a violation. (Tr. pp. 12-13)
Defendant was placed under oath, and admitted receiving the
misdemeanor citation on September 30, 2008, for operating a motor
vehicle in violation of his license restrictions. (Tr. pp. 16-18)
Defendant stated that he was not permitted to drive from 11:00 p.m.
to 7:00 a.m. due to his involvement in a traffic accident. (Tr. p.
19) Defendant stated that he left his house at approximately 9:30
and went to South Haven. (Tr. p. 18) He stated that he should
have been able to arrive at South Haven by 11:00, but that he
missed his exit, had to turn around, then got lost in South Haven,
and as a result, he was still driving around when it was almost
midnight. (Tr. p. 18) Defendant acknowledged that it was a good
forty-five minute drive from his home in Lawton to South Haven.
(Tr. 19) Defendant further stated that he hoped to have a job in
the South Haven area with B & L Construction the following day, and
that it would have been easier for him to get to the job site from
where he was going to stay. (Tr. pp. 20-21) In his statement to
the court regarding the appropriate sentence, defense counsel
stated that defendant had planned to stay with an acquaintance in
6
South Haven that night so that he would be closer to the job site
the next day, but that due to running errands and getting lost, he
was found by the police driving past 11:00 p.m. (Tr. p. 23)
The district court found that violations 1, 4, 5, and 6 had
been proved by a preponderance of the evidence. (Tr. pp. 21-23)
Speaking on defendant’s behalf, defense counsel noted that until
the instant violations, defendant had been compliant with the terms
of his supervised release, and his previous drug tests had been
negative. (Tr. pp. 23-24) Counsel requested that the court
exercise leniency in imposing whatever sentence the court deemed
appropriate. (Tr. p. 24) Defendant stated that at the time of the
positive test, he was ill and had been taking more than the usual
amount of pseudoephedrine tablets, and that he was surprised by the
positive test result, because he shouldn’t have been “dirty.” (Tr.
p. 25)
Mr. Kakabeeke recommended a sentence of twelve months
incarceration at the low end of the guideline range. (Tr. p. 30)
The government argued that defendant’s statements before the court
indicated that he did not accept responsibility for the violations.
(Tr. pp. 30-31) The government further argued that the statutory
sentencing factors of promoting respect for the law, see 18 U.S.C.
§3553(a)(2)(A), and deterrence, see 18 U.S.C. §3553(a)(2)(B),
warranted a sentence of eighteen months at the high end of the
guideline range. (Tr. p 32)
In imposing sentence, the district court stated that the
impact conference on September 25, 2008, was a “disaster” and “had
no effect whatever upon Mr. Williams.” (Tr. p. 32) The court
stated:
7
[L]ess than a week later on the 30th we’re out thinking
we can get from Lawton to South Haven and back in an hour
and a half, and we don’t make it. It takes us two and a
half, almost three hours when we’re stopped in violation
of restricted license. And then we test positive for
methamphetamine, the exact same drug that got us here in
the first place in August of ‘04 for sentencing, and now
suddenly I didn’t feel well that night I was driving on
the 30th. I was sick. He surely wasn’t sick here on the
25th of September when he appeared.
And he says, I don’t know how that happened. I guess I
must have caught something here. Well, he did catch
something. I’m sure that Mr. Williams caught what he’s
had for some time, and that is a manifest disregard for
the law.
The court lectured to him on the 25th of September about
keeping good friends; staying away from people who were
bad influences; not running with just anybody; making
good, careful choices of friends; and making sure that
one stayed miles away from anything having to do with
drugs. When we’re sick, we go to the doctor, get a
prescription, or we take something over the counter that
will help us. And if we take something over the counter,
it won’t come out in these Kroll drug tests. It will not
have that high a level....
(Tr. pp. 32-33)
The district court imposed a sentence of 12 months
incarceration, to be followed by a new term of supervised release
of 60 months. (Dist. Ct. Doc. 50, 11/3/08, pp. 1, 3) The court
recommended to the Bureau of Prisons that the defendant receive
drug abuse counseling and therapy and mental health treatment while
incarcerated. (Doc. 50, p. 2) The conditions of the new term of
supervised release required the defendant to participate in a
substance abuse testing and treatment program, to refrain from the
use and possession of alcoholic beverages, to refrain from
frequenting bars and associating with persons using or possessing
alcohol or controlled substances, and to avoid associating with
8
felons. (Doc. 50, p. 4)
The court also ordered that the defendant serve the first six
months of his term of supervised release at KPEP, and that he have
a curfew of 10:00 p.m. to 6:00 a.m., unless otherwise approved by
the probation officer, “because I don’t believe he’s trustworthy at
this point.” (Tr. p. 34) The district court further stated:
We’re going to address this problem right now and we’re
going to get Mr. Williams back where he should be at this
time. He’s 25 years old, and it’s time we get back to
adult behavior. No excuses, no catching things, nothing
of this nature to go on.
The court concluded that the defendant would “come back for an
impact hearing with this Court again when he is released from the
Federal Bureau of Prisons and we’ll see if we’ve got a little
different attitude toward what’s in front of us.” (Tr. p. 34)
Defendant filed the instant appeal from the district court’s
judgment and sentence. (Dist. Ct. Doc. 51, 11/4/08)
II. ANALYSIS
A. Standard of Review
“We review a district court’s decision to revoke supervised
release for abuse of discretion, United States v. Cofield, 233 F.3d
405, 406 (6th Cir. 2000), giving fresh review to its legal
conclusions, United States v. Crace, 207 F.3d 833, 835 (6th Cir.
2000), and clear-error review to its fact findings, United States
v. Carter, 463 F.3d 526, 528 (6th Cir. 2006).” United States v.
Kontrol, 554 F.3d 1089, 1091-92 (6th Cir. 2009). This court
reviews sentences imposed following the revocation of a term of
supervised release under the same abuse of discretion standard
9
applied to sentences imposed following conviction. United States
v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007). This means that a
sentence will be overturned only if it is procedurally or
substantively unreasonable. United States v. Houston, 529 F.3d
743, 753 (6th Cir. 2008).
Defendant argues that the sentence of twelve months
incarceration imposed by the district court was both procedurally
and substantively unreasonable. In regard to defendant’s argument
that the trial court did not adequately consider and failed to
choose the option of drug treatment in lieu of revocation, the
parties suggest that the plain error standard of review may apply
due to the defendant’s failure to request drug treatment at the
revocation hearing or to challenge the trial court’s alleged
failure to explain its reasons for choosing incarceration over
treatment. See Fed.R.Crim.P. 51(b)(“A party may preserve a claim
of error by informing the court–when the court ruling or order is
made or sought–of the action the party wishes the court to take, or
the party’s objection to the court’s action and the grounds for
that objection.”).
However, Rule 51(b) further states, “If a party does not have
an opportunity to object to a ruling or order, the absence of an
objection does not later prejudice that party.” Fed.R.Crim.P.
51(b). To ensure that the parties are fairly given the opportunity
to object to the sentence, this court established the rule in
United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), that
district courts, after imposing sentence and before adjourning,
must ask the parties whether they have any further objections to
the sentence just pronounced. 371 F.3d at 872. If the district
10
court fails to do so, the parties do not forfeit their objections
and are not required to demonstrate plain error on appeal. Id. In
this case, the district court did not invite any additional
comments from the parties after imposing sentence. In light of
this lack of compliance with the Bostic rule, defendant’s failure
to raise an argument as an objection below does not trigger plain-
error review. See United States v. Gapinski, 561 F.3d 467, 473-74
(6th Cir. 2009).
B. Procedural reasonableness
A sentence may be procedurally unreasonable if it entails a
“significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence–including an explanation
for any deviation from the Guidelines range.” Gall v. United
States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007).
For a sentence to be procedurally reasonable, the district
court must: (1) correctly calculate the applicable sentencing range
and consider the policy statements in Chapter Seven of the
Guidelines; (2) give both parties the opportunity to argue for
whatever sentence they deem appropriate, and then consider all of
the § 3553(a) sentencing factors before making an individualized
assessment based on the facts presented and those statutory
factors; and (3) adequately explain the chosen sentence to allow
for meaningful appellate review and to promote the perception of
fair sentencing. Bolds, 511 F.3d at 579-80.
11
A district court may revoke a term of supervised release if it
“finds by a preponderance of the evidence that the defendant
violated a condition of supervised release.” 18 U.S.C. §
3583(e)(3). In determining whether to revoke a term of supervised
release, the district court must consider the factors set forth 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). 18 U.S.C. § 3583(e).1 The factors
relevant in this case include the nature and circumstances of the
offense and the history and characteristics of the defendant; the
need to deter criminal conduct, to protect the public, and to
provide defendant with appropriate treatment; any guideline range
for sentencing, guideline policy statements, and the avoidance of
unwarranted disparities.
The district court is not required to engage in a “ritual
incantation” of the sentencing factors, United States v. Johnson,
403 F.3d 813, 816 (6th Cir. 2005), or to explicitly refer to each
factor in pronouncing sentence, United States v. Smith, 505 F.3d
463, 467-68 (6th Cir. 2007); see also United States v. Jeross, 521
F.3d 562, 583 (6th Cir. 2008)(“A district court need not recite
[the] § 3553(a) factors, nor engage in the ritual incantation of
the factors in order for the appellate court to affirm a sentence.”
(citations and internal quotation marks omitted)). “This court has
made it clear that a district court need not explain its reasons
for rejecting each argument made by a defendant.” United States v.
1
Although § 3583(e) omits § 3553(a)(2)(A), the need for the sentence
imposed to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense, from the list of factors the
court must consider when imposing a supervised release revocation sentence,
consideration of that factor in revoking supervised release does not constitute
reversible error. United States v. Lewis, 498 F.3d 393, 399-400 (6th Cir. 2007).
12
Smith, 510 F.3d 603, 608 (6th Cir. 2007). The record is sufficient
if “the district court’s explanation of the sentence makes it clear
that it considered the required factors.” United States v.
Washington, 147 F.3d 490, 491 (6th Cir. 1998)
In regard to the violations involving the positive test for
controlled substances, defendant argues that the record fails to
show that the court considered drug treatment or some other
sanction less than incarceration. Generally, when a defendant
possesses a controlled substance contrary to the conditions of his
supervised release, the law provides that “the court shall revoke
the term of supervised release and require the defendant to serve
a term of imprisonment[.]” 18 U.S.C. § 3583(g); U.S.S.G. § 7B1.4
cmt. n.5 (2007). The use of a controlled substance constitutes
possession under § 3583(g). Crace, 207 F.3d at 836.
However, § 3583 provides for an exception to revocation: “The
court shall consider whether the availability of appropriate
substance abuse treatment programs, or an individual’s current or
past participation in such programs, warrants an exception in
accordance with United States Sentencing Commission guidelines from
the rule of section 3583(g) when considering any action against a
defendant who fails a drug test.” 18 U.S.C. § 3583(d). Similarly,
Chapter Seven of the Guidelines states: “In the case of a defendant
who fails a drug test, the court shall consider whether the
availability of appropriate substance abuse programs, or a
defendant’s current or past participation in such programs,
warrants an exception from the requirement of mandatory revocation
and imprisonment under 18 U.S.C. §§ 3565(b) and 3583(g).” U.S.S.G.
§ 7B1.4 cmt. n.6 (2007). This exception to revocation essentially
13
restores to the district court the discretion whether or not to
revoke the defendant’s supervised release. Crace, 207 F.3d at 837.
“[W]e do not require magic words in the record of the
sentencing hearing indicating that substance abuse treatment was
considered in order to uphold the district court’s prison
sentence.” Crace, 207 F.3d at 836. The record in this case is
sufficient to permit the conclusion that the district court
considered and rejected substance abuse treatment as an alternative
to incarceration. The probation officer testified during the
revocation hearing that defendant was enrolled in a drug testing
program at the time of the violations, but not in a drug treatment
program. Thus, the court was aware of the fact that defendant was
not currently in drug treatment.
The district court noted that defendant had tested positive
for methamphetamine, the same controlled substance involved in his
offense of conviction. The district court commented on defendant’s
disclaimer of any knowledge of how he could have tested positive
for methamphetamine. (Tr. p. 33) See Crace, 207 F.3d at 836 n. 1
(noting court’s concern with defendant’s claim that he didn’t know
how the drugs got into his system in affirming judgment revoking
supervised release). The court referred to defendant’s “manifest
disregard for the law[,]” (Tr. p. 33) which relates to the need for
the sentence to promote respect for the law. See § 3553(a)(2)(A).
The court recalled its admonitions to defendant during the impact
hearing about keeping good friends, avoiding people who are bad
influences, and staying away from drugs, and commented that the
impact hearing attended by defendant a week prior to the traffic
stop was a “disaster” which had “no effect whatever on Mr.
14
Williams.” (Tr. p. 32) These statements indicate that the court
had concluded, upon considering § 3553(a)(2)(B), that counseling
alone was not enough to deter defendant from using drugs, and that
a sentence of incarceration was warranted.
The district court obviously considered defendant’s need for
drug treatment pursuant to 18 U.S.C. §3553(a)(2)(D), because the
court recommended to the Bureau of Prisons that the defendant
receive drug abuse counseling and therapy and mental health
treatment while incarcerated. The court also specified that
defendant participate in a substance abuse testing and treatment
program as a condition of his new term of supervised release. The
court further ordered that defendant serve the first six months of
his new term of supervised release at a community treatment
facility “because I don’t believe he’s trustworthy at this point.”
(Tr. p. 34) This statement indicates that the court believed that
the defendant required a structured environment to assist him in
drug rehabilitation and that the court had rejected the option of
simply continuing defendant on supervision while he attended drug
therapy. The district court adequately explained its reasoning for
imposing a term of incarceration rather than ordering drug
treatment under the § 3583(d) exception.
Defendant also argues that the revocation proceeding was
procedurally deficient because the laboratory analysis relied on by
the district court did not include a quantitative analysis of the
amount of drugs in the defendant’s system. The gist of defendant’s
argument is that the violation would be less serious if it were
shown that he ingested only a small amount of controlled
substances. However, the conditions of defendant’s supervised
release required the defendant to “refrain from any unlawful use of
15
a controlled substance.” (Doc. 50, Amended Judgment, 11/3/08, p.
3)(Emphasis supplied). Thus, the unlawful use of even a small
amount of a controlled substance would have constituted a
violation. In addition, a quantitative analysis in this case would
have been of little assistance to the court in determining how much
amphetamine and methamphetamine defendant had ingested, because the
laboratory report stated that the sample was diluted, suggesting
that the defendant had attempted to flush the drugs out of his
system prior to submitting the urine sample. The district court
did not err in relying on a laboratory report which lacked more
precise quantitative findings.
As to the traffic citation violation, defendant argues that
the trial court misunderstood the factual circumstances of that
violation. The district court, in describing defendant’s conduct
on September 30th, noted that “we’re out thinking we can get from
Lawton to South Haven and back in an hour and a half, and we don’t
make it. It takes us two and a half, almost three hours when we’re
stopped in violation of the restricted license.” (Tr. p. 32)
However, defendant stated that he had gone to South Haven because
“it was gonna be easier for me to get to that job site from
her–from where I was gonna stay, you know, the next morning.” (Tr.
p. 21) By way of further explanation, defense counsel informed the
court that defendant had intended to spend the night with an
acquaintance in South Haven so that he would be closer to a job
site the next day. (Tr. p. 23). Defendant argues that the
district court’s misunderstanding of his plans to spend the night
in South Haven is a procedural error requiring re-sentencing.
“A sentence is procedurally unreasonable if a district court
commits a significant procedural error[.]” United States v.
16
Carson, 560 F.3d 566, 585 (6th Cir. 2009)(emphasis supplied). Not
all sentencing errors are prejudicial. To establish harmless error
at sentencing, “the government must demonstrate to this Court with
certainty that the error at sentencing did not ‘cause[] the
defendant to receive a more severe sentence.’” United States v.
Johnson, 467 F.3d 559, 564 (6th Cir. 2006)(quoting United States v.
Oliver, 397 F.3d 369, 379 (6th Cir. 2005)(internal citation
omitted)).
In pronouncing sentence, the district court apparently
recalled his exchange with the defendant concerning the time
required to travel from defendant’s home to South Haven. The
court’s comments suggest that the court felt that the defendant
exercised poor judgment in leaving his house at 9:30 p.m. to make
the forty-five-minute drive to South Haven, knowing that he could
barely make the round trip before the 11:00 p.m. curfew. It may be
that the court simply did not believe defendant’s claim that he
intended to stay in South Haven, although the court did not
expressly so state on the record.
Even assuming that the district court’s view of the facts in
regard to defendant’s travel plans was erroneous, this error was
clearly not prejudicial. The actual commission of the traffic
violation did not hinge in any way on whether or not defendant
planned on returning to his home that night. Defendant admitted
that he was driving around close to midnight, in violation of his
license restriction, and that he received a citation for that
violation. Defendant acknowledged that “it was almost midnight
and, I mean, I was guilty of being [out] after 11:00. I should
have probably parked and got a taxi or something like that. I
17
shouldn’t have drove [sic].” (Tr. p. 18) The scenario that
defendant was planning on spending the night in South Haven, but
was still driving around over an hour and a half after he should
have arrived at his final destination in South Haven, provides
nothing more, and possibly less, in the way of mitigation than the
round trip referred to by the district court. In addition, the
sentence imposed did not rest on this violation alone, but also on
the positive drug test. In this case, we can be certain that any
misunderstanding on the part of the district court concerning the
defendant’s travel plans preceding the September 30th violation was
harmless and did not cause defendant to receive a more severe
sentence.
The district court committed no significant procedural error
in revoking defendant’s supervised release and imposing sentence.
C. Substantive reasonableness
Since we have found that the district court’s sentence is
procedurally sound, we must “then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard[,] ... tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Gall, 128 S. Ct. at 597. A sentence is
substantively unreasonable if “the district court selected the
sentence arbitrarily, based the sentence on impermissible factors,
failed to consider pertinent §3553(a) factors, or gave an
unreasonable amount of weight to any pertinent factor.” Smith, 510
F.3d at 609. This court applies a presumption of substantive
reasonableness in reviewing sentences that are within the range of
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the Guidelines policy statements on revocation. United States v.
Polihonki, 543 F.3d 318, 322 (6th Cir. 2008).
Defendant argues that the sentence of incarceration of twelve
months for a single positive drug test, even combined with the
traffic violation, was substantively unreasonable. The sentence of
twelve months imposed by the court was a sentence at the bottom of
the advisory guideline range, and thus the sentence was
presumptively reasonable.
As discussed above, the district court appropriately
considered the defendant’s need for drug abuse treatment. The
court heard evidence that it was not uncommon for methamphetamine
users to relapse. The court commented that defendant was not
trustworthy, and apparently concluded that defendant required the
more structured environment provided by incarceration and the
community treatment facility to assist him in achieving his drug
treatment goals. This conclusion was reasonable in light of
defendant’s failure to admit his methamphetamine use or to accept
responsibility for the positive drug test, his “manifest disregard
for the law” in both ignoring the restriction on his driver’s
license and possessing methamphetamine, a felony, despite the
court’s admonitions at the impact hearing held within a week of the
traffic violation and within three weeks of the positive drug test.
Although the positive drug test was the first positive test
after a series of negative tests over a two-month period, the
positive test occurred within three months of the commencement of
defendant’s term of supervised release. The test was positive for
methamphetamine, the same controlled substance involved in the
offense of conviction. Although the violation involved one
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positive test, this was sufficient to constitute a violation of
defendant’s supervised release, which prohibited “any unlawful use
of a controlled substance.” (Doc. No. 32, p. 3). See Polihonki,
543 F.3d at 325-26 (affirming sentence of thirteen months
incarceration following revocation of supervised release for two
positive tests for alcohol, where conditions prohibited defendant
“from any use of alcohol”). In addition, defendant was also found
to have committed two violations of state law, specifically, his
citation for driving in violation of his license restriction, and
possession of methamphetamine, a felony violation of state law.
The fact that defendant was found guilty of multiple violations of
his conditions of supervised release “also weighs against
application of the exception to § 3583(g).” United States v.
Pratt, 297 Fed.Appx. 475, 478 (6th Cir. 2008).
The district court’s explanation of the sentence provides a
reasoned basis for the sentence imposed. Defendant has not
rebutted the presumption of reasonableness attached to the sentence
of twelve months incarceration, which fell within the advisory
Guidelines range, nor has he met his burden of demonstrating that
the sentence imposed represents an abuse of discretion under the
totality of the circumstances. We therefore reject defendant’s
challenge based on substantive reasonableness.
III. Conclusion
For the above reasons, we AFFIRM the revocation of defendant’s
supervised release and the imposition of a term of incarceration,
to be followed by an additional term of supervised release.
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