United States v. Williams , 214 F. App'x 552 ( 2007 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 07a0055n.06
    Filed: January 23, 2007
    No. 06-1492
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                                )
    )         ON APPEAL FROM THE
    Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
    )         COURT FOR THE EASTERN
    v.                                                       )         DISTRICT OF MICHIGAN
    )
    TAMAR DESHAWN WILLIAMS,                                  )            MEMORANDUM
    )              OPINION
    Defendant-Appellant.                              )
    BEFORE:        SUHRHEINRICH, SUTTON and McKEAGUE, Circuit Judges.
    PER CURIAM. This is an appeal from a judgment of sentence revoking defendant’s
    supervised release and sentencing him to an additional prison term of 36 months. Defendant
    contends the sentence, almost three times longer than the upper end of the advisory guidelines range,
    is procedurally and substantively unreasonable. For the reasons that follow, we affirm the judgment.
    I
    On November 17, 1999, defendant-appellant Tamar Deshawn Williams, having pleaded
    guilty to possession of cocaine base with intent to distribute, was sentenced in the Middle District
    of Florida to a prison term of 63 months, followed by four years of supervised release. Following
    his release from prison, jurisdiction over defendant during supervised release was transferred to the
    Eastern District of Michigan on January 24, 2005. In April 2005, defendant’s supervising probation
    No. 06-1492
    United States v. Williams
    officer charged him with violating the conditions of supervised release and petitioned the district
    court for issuance of an arrest warrant. The petition averred that defendant had been arrested by the
    Detroit Police Department on February 8, 2005 and charged with kidnaping and assault and battery,
    and that defendant had not timely notified his probation officer of the arrest. The state court
    complaint on the kidnaping and assault charges had been dismissed without prejudice on February
    22, 2005, when the complaining witness failed to appear. Defendant did not report the arrest to his
    probation officer until March 21, 2005, and then falsely explained that the charges had been
    dismissed due to “mistaken identity.”
    Specifically, defendant was charged with five violations of the conditions of his supervised
    release: (1) commission of another crime, i.e., kidnaping and assault and battery; (2) submission of
    an untruthful written report to the probation officer; (3) failure to truthfully answer an inquiry by the
    probation officer; (4) failure to maintain employment; and (5) failure to notify the probation officer
    within 72 hours of being arrested. Defendant was arrested and a contested hearing on the charged
    violations was conducted on May 24, 2005.
    The district court received testimony from two probation officers and two police officers.
    As to violations two through five, defendant essentially conceded that technical violations had been
    made out, but he argued for leniency. As to violation one, two police officers testified regarding the
    fruits of their investigation at the scene of the alleged kidnaping and assault and battery. They
    testified to their personal observations as well as to statements received by them from witnesses at
    the scene. Their testimony tended to establish that defendant Williams had taken a woman, Christal
    Sugg, by the neck and forced her into a vehicle and transported her against her will to his residence.
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    United States v. Williams
    In fact, the officers found Ms. Sugg at defendant’s residence in a traumatized state: “frightened. .
    . . highly distraught, physically shaking.” Sgt. Jason Sloan, Hearing Tr. p. 46, JA 86. The officers’
    testimony was based partly on hearsay, admitted over defendant’s objection, because, as the district
    court observed, the rules of evidence are “somewhat relaxed’ in supervised release revocation
    proceedings. Defendant’s counsel cross-examined the police officer witnesses, but defendant offered
    no evidence in defense of the violation one charge.
    At the conclusion of the hearing, the district court declined, for the sake of efficiency, to
    make a ruling on the violation one charge. The court found that the other four violations were clearly
    established by a preponderance of the evidence and, in themselves, warranted revocation of
    supervised release. As it proceeded to sentence defendant, the court noted, however, that it had
    heard the testimony relating to violation one and deemed it “important as it relates to his answer
    mistaken identity and so forth.” Sentencing Tr. p. 68, JA 108. Defendant declined to make
    allocution, citing Fifth Amendment concerns. The district court then rejected defendant’s request
    to treat his violations as Grade C violations under U.S.S.G. § 7B1.4, and proceeded to sentence him
    as though he had committed a Grade A violation. The court found the advisory guidelines range did
    not adequately account for defendant’s “horrible record.” Concluding that violations two through
    five were “indicative of his total disregard for the rules of this Court, the rules of society,” the court
    imposed a sentence of 36 months in prison. Id. at 70, JA 110.
    In defendant’s initial appeal to this court, the parties jointly moved to vacate the sentence
    because the district court had erroneously treated the supervised release violations as including a
    Grade A violation. On December 19, 2005, a panel of this court granted the motion, vacated the
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    United States v. Williams
    original sentence and remanded for resentencing. United States v. Williams, No. 05-1862. The
    resentencing occurred on February 15, 2006. The district court treated defendant’s violations as
    Grade C violations and determined that an advisory guidelines range of 7 to 13 months applied.
    Still, the court imposed the same 36-month sentence. The court explained its reasoning as follows:
    I think this matter goes way outside the heartland of America based upon his record
    and I think he’s a danger to society. I think that based upon his prior record, his
    actions throughout the years have been very assaultive, very aggressive, very – he’s
    a menace to society and to people specifically.
    Resentencing Tr. p. 7, JA 118. In evaluating the sentencing factors under 
    18 U.S.C. § 3553
    (a), the
    court cited the importance of punishment, deterrence, rehabilitation, and protection of the public.
    
    Id. at 7-8
    , JA 118-19.
    On appeal, defendant contends the district court erroneously relied on evidence of the assault
    and kidnaping despite having stopped short of finding such conduct proven by a preponderance of
    the evidence. Defendant contends the sentence is unreasonable because the district court either
    failed to consider all the relevant sentencing factors or improperly exaggerated the significance of
    one factor.
    II
    The revocation of supervised release and sentence of imprisonment will ordinarily be
    affirmed if the district court considered the relevant statutory factors and the sentence is not “plainly
    unreasonable.” United States v. Kirby, 
    418 F.3d 621
    , 625-26 (6th Cir. 2005). In the wake of the
    Supreme Court’s decision in United States v. Booker, 
    543 U.S. 220
     (2005), there is some question
    whether we should evaluate the sentence only in terms of whether it is “unreasonable,” rather than
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    United States v. Williams
    “plainly unreasonable.” The question has not been resolved in the Sixth Circuit. See Kirby, 
    418 F.3d at 625, n.3
    ; United States v. Morrow, 
    2006 WL 3488769
     (6th Cir. Dec. 4, 2006) (unpublished);
    United States v. Reid, 
    2006 WL 3314556
     (6th Cir. Nov. 15, 2006) (unpublished). Yet, we need not
    resolve the question in this case either. For even if defendant’s burden is deemed to be the lighter
    of the two, i.e., to show that the sentence is simply unreasonable, as opposed to plainly unreasonable,
    it is clear that the burden has not been met.
    Under this lighter standard, the district court’s sentence must be vacated if it is found to be
    either procedurally or substantively unreasonable. United States v. Collington, 
    461 F.3d 805
    , 808
    (6th Cir. 2006). A sentence may be held procedurally unreasonable if the district court (1) did not
    appreciate the non-mandatory nature of the guidelines, (2) did not correctly calculate the sentencing
    range under the guidelines, or (3) did not consider the 
    18 U.S.C. § 3553
    (a) factors. United States
    v. Davis, 
    458 F.3d 491
    , 495 (6th Cir. 2006). Here, defendant nominally relies on the third ground,
    yet the record makes it clear that the district court adequately considered the § 3553 factors,
    expressly referring to defendant’s criminal history, as well as the need for punishment, deterrence,
    rehabilitation and protection of society. The gravamen of defendant’s challenge goes to substantive
    reasonableness.
    Defendant contends the sentence is substantively unreasonable because the district court erred
    by relying on evidence of a crime he was not found to have committed and by placing too much
    weight on this consideration. But for the district court’s improper consideration of the kidnaping
    evidence, defendant insists there is no plausible justification for the dramatic upward variance from
    the advisory guidelines range.
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    United States v. Williams
    We agree that there is nothing inherent in defendant’s failure to maintain employment and
    failure to timely and truthfully report the fact that he was arrested that would reasonably justify a
    prison sentence of 36 months. Yet, though the district judge declined to find defendant responsible
    for having committed the charged felony offenses, he was not required to close his eyes to evidence
    of the reasons for which defendant failed to timely and truthfully report his arrest. Defendant had
    indisputably been arrested for serious felony offenses, kidnaping and assault and battery. The
    evidence presented in the supervised release revocation hearing, though inclusive of hearsay,
    strongly suggested that defendant had committed the offenses. The evidence was unrefuted. The
    evidence helped explain why defendant had been less than forthcoming with his probation officer
    and was appropriately deemed probative of defendant’s culpability.
    Hence, as the district court observed in the initial sentencing, although defendant was not
    sentenced for having committed kidnaping and assault and battery, the evidence of his involvement
    in such offenses was nonetheless “certainly important” in considering the § 3553(a) factors. It was
    also reasonable and appropriate for the district court to view this evidence as significant in light of
    defendant’s prior convictions for crimes of violence, including three separate batteries in 1998. The
    evidence of defendant’s continuing involvement, shortly after his release from federal prison, in
    assaultive behavior similar to several batteries he committed shortly before the federal imprisonment,
    could hardly be ignored. The district court was obviously, and not unreasonably, alarmed that a 63-
    month term of imprisonment appeared not to have resulted in any change in defendant’s violent
    manner of dealing with other persons. Due to this intractability, the district court, on resentencing,
    expressly viewed defendant as a “menace to society,” from whom the public needed continuing
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    United States v. Williams
    protection. These considerations were reasonably viewed as taking defendant “way outside the
    heartland” of cases represented by the advisory guidelines range applicable to the violations
    defendant was formally found to have committed.
    Defendant objects, contending the alleged kidnaping and assault and battery were never
    proven—either in the state court or in the district court. It appears the district court refrained from
    finding defendant responsible for violation one only because the evidence presented included
    hearsay. In order to obviate the need to hear arguments and make rulings on the extent to which the
    hearsay was reliable and admissible, the district court side-stepped violation number one.
    There was no need to do so. It is well-settled that hearsay may be considered in a supervised
    release revocation hearing if it is shown to be reliable. Kirby, 
    418 F.3d at 626-27
    ; United States v.
    Donald, 106 F. App’x 429, 432, 
    2004 WL 1826648
    , at *3 (6th Cir.) (unpublished). Here, the
    hearsay evidence presented to the district court had greater indicia of reliability than that found to
    be properly considered in Kirby. We are satisfied the evidence was appropriately considered in
    determining defendant’s sentence.
    Further, it is also well-settled that relevant unconvicted conduct, even acquitted conduct, may
    be considered in determining a defendant’s sentence. See United States v. Milton, 
    27 F.3d 203
    , 208-
    09 (6th Cir. 1994) (“This circuit clearly allows district courts to consider acquitted conduct at
    sentencing.”); United States v. Harris, 
    149 F.3d 1185
    , 
    1998 WL 344052
    , at *2 (6th Cir.)
    (unpublished) (same). The unrefuted evidence of defendant’s involvement in the alleged kidnaping
    and assault and battery of Christal Sugg was certainly relevant to the motivation underlying several
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    United States v. Williams
    of defendant’s uncontested violations of the conditions of his supervised release. It was also relevant
    to the district court’s required consideration of all the § 3553(a) sentencing factors.
    Having carefully reviewed the transcripts of the supervised release revocation hearing and
    both sentencing hearings, we remain unpersuaded that the sentence imposed by the district court is
    substantively unreasonable. The district court did not base the sentence on any impermissible factor.
    Nor has defendant demonstrated that the district court placed unreasonable weight on any one
    sentencing factor. The district court’s upward variance from the advisory guidelines range is
    substantial. Yet, in light of defendant’s evident continuing propensity for violence, the variance is
    premised on compelling reasons. The district court’s explanation of its reasoning, though succinct,
    demonstrates appropriate consideration of defendant’s history and characteristics, the need for just
    punishment, the need for deterrence, the need to protect the public, and the need to provide defendant
    with correctional treatment. See 
    18 U.S.C. § 3553
    (a).
    III
    Accordingly, finding no error, we AFFIRM the judgment of the district court.
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Document Info

Docket Number: 06-1492

Citation Numbers: 214 F. App'x 552

Judges: Suhrheinrich, Sutton, McKeague

Filed Date: 1/23/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024