United States v. Demario Brown , 519 F. App'x 359 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0559n.06
No. 12-2208
FILED
UNITED STATES COURT OF APPEALS Jun 10, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
)
DEMARIO LEROY BROWN, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Defendant-Appellant. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
BEFORE: BATCHELDER, Chief Judge; SUHRHEINRICH and SUTTON, Circuit Judges.
PER CURIAM. Demario Leroy Brown appeals the sentence imposed for his violation of the
terms of his supervised release.
In 2008, Brown pleaded guilty to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). The district court sentenced him to thirty-seven months in prison, to be
followed by three years of supervised release. In 2010, Brown admitted to violating the terms of his
supervised release. The district court sentenced him to six months in prison, to be followed by
twenty-four months of supervised release. In 2011, Brown again admitted to violating the terms of
his supervised release. The district court sentenced him to twelve months in prison, to be followed
by eighteen months of supervised release. Brown was to serve the first four months of his supervised
release in a residential reentry center and the following four months in home confinement.
No. 12-2208
United States v. Brown
In 2012, several days after he began serving his term of supervised release, Brown left the
residential reentry center without authorization. He subsequently admitted to violating the terms of
his supervised release. Based on Brown’s Grade C violation and his criminal history category of VI,
his guidelines range of imprisonment was eight to fourteen months. A probation officer
recommended adding eight months to Brown’s guidelines sentence under USSG § 7B1.3(d) to
account for his failure to complete the previously imposed four-month terms of community
confinement and home detention. The district court sentenced Brown to twenty-four months in
prison. It did not impose an additional term of supervised release.
On appeal, Brown argues that his sentence is substantively unreasonable for the following
reasons: (1) the district court placed undue emphasis on his history of supervised release violations
and criminal history; (2) the court failed to properly consider the seriousness of his offense, the need
to promote respect for the law, and the need to afford deterrence and provide rehabilitative
opportunities; and (3) the court did not state whether the above-guidelines sentence was the result
of a departure or variance, and the sentence was greater than necessary to comply with the purposes
of sentencing.
We review sentences imposed following revocation of supervised release under an abuse-of-
discretion standard for reasonableness, which has both a procedural and a substantive component.
United States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009). “For a sentence to be substantively
reasonable, it must be proportionate to the seriousness of the circumstances of the offense and
offender, and sufficient but not greater than necessary, to comply with the purposes of [18 U.S.C.]
§ 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal quotation marks
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No. 12-2208
United States v. Brown
omitted). “A sentence may be substantively unreasonable if the district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors
or gives an unreasonable amount of weight to any pertinent factor.” Id. at 510 (internal quotation
marks and alterations omitted).
Brown’s sentence was substantively reasonable. Before imposing the sentence, the district
court discussed several relevant sentencing factors, including Brown’s significant criminal history
and the fact that he repeatedly violated the terms of his supervised release. The court explained that,
based on his history, it was clear that Brown was not deterred by his prior punishment, that he was
likely to recidivate, that an additional term of supervised release would be ineffective, and that the
“only way rehabilitation is going to occur is with incarceration.” Despite Brown’s argument to the
contrary, the district court did not give undue weight to his repeated supervised release violations
and criminal history. Rather, the court rationally determined that those factors were of primary
importance when weighed against other pertinent considerations. Further, the district court was not
required to consider the seriousness of the offense or the need to promote respect for the law, see
18 U.S.C. § 3583(e), and its discussion reasonably addressed the need to afford deterrence and
promote rehabilitation. Finally, the twenty-four-month sentence implicitly included both the
additional eight months of imprisonment under § 7B1.3(d) recommended by the probation officer
and a two-month upward variance from the guidelines. Under the circumstances, the sentence was
not greater than necessary to comply with the purposes of § 3553(a).
Accordingly, we affirm the district court’s judgment.
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