United States v. Eugene Powell ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0526n.06
FILED
No. 10-1561
Jul 29, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
EUGENE POWELL, )
)
Defendant-Appellant. )
)
BEFORE: ROGERS and McKEAGUE, Circuit Judges; DONALD,* District Judge.
DONALD, District Judge. Defendant Eugene Powell appeals the district court order
revoking his supervised release and imposing a sentence of thirty-three months’ imprisonment to run
concurrent with his state sentence, without an additional term of supervised release. Powell pled
guilty to two violations of his terms of supervised release. Powell challenges the sentence as
procedurally unreasonable on the grounds that the district court treated the Sentencing Guidelines
(“Guidelines”) as mandatory and neglected to consider the sentencing factors set forth under 18
U.S.C. § 3553(a).
We AFFIRM the sentence for the reasons described below.
BACKGROUND
*
The Honorable Bernice B. Donald, United States District Judge for the Western District of
Tennessee, sitting by designation.
No. 10-1561
United States v. Powell
Powell pled guilty to conspiracy to distribute and possess with intent to distribute a controlled
substance. On April 30, 1999, he was sentenced to 108 months of imprisonment, followed by six
years of supervised release. Powell began his supervised release on August 31, 2006. On March 16,
2010, a petition for warrant for offender under supervision was filed in the district court. At the
supervised release violation hearing on April 15, 2010, Powell admitted and pled guilty to two
violations of his supervised release: 1) conviction of a controlled substance offense under state law
during the term of supervised release; and 2) failure to notify his probation officer of the arrest within
72 hours.
Powell argued that the Guidelines range of 33 to 41 months was too high and that a non-
custodial sentence with conditions of home confinement or electric tether would be sufficient to meet
the sentencing objectives of 18 U.S.C. § 3553(a). Counsel made several points in support of this
argument: that Powell had already been charged and sentenced to probation in state court for the
conduct that also served as the basis for his supervised release violation petition; that there was a
discrepancy as to the quantity of heroin seized from Powell’s home; and that imprisoning Powell
would be a significant hardship on his family due to Powell’s role as primary care-giver to his
mother. The district court imposed a 33 month sentence.
The judgment was filed on April 22, 2010. Powell timely appealed.
ANALYSIS
This Court reviews a sentence for both procedural and substantive reasonableness “under a
deferential abuse of discretion standard.” United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007)
(quoting Gall v. United States, 552 U.S. 38, 41 (2007)).
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No. 10-1561
United States v. Powell
Pursuant to 18 U.S.C. § 3583(g)(1), the district court “shall revoke the term of supervised
release and require the defendant to serve a term of imprisonment . . . if the defendant possesses a
controlled substance in violation of the condition set forth in subsection (d) . . . .” Powell admitted
to violating conditions of his supervised release, one of which was being convicted in state court for
possession of a controlled substance. Therefore, the only question on appeal is whether the sentence
imposed is reasonable.
A sentence is procedurally unreasonable if the district court “fails to calculate (or improperly
calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. Powell challenges the procedural reasonableness of the sentence
on two grounds: 1) the district court treated the Guidelines as mandatory, and 2) the district court
neglected to consider the § 3553(a) factors. Powell does not raise any substantive reasonableness
arguments.
The district court properly calculated the Guideline range as 33 to 41 months. Neither party
disputes that the Guideline range was calculated correctly.
In support of his argument that the district court treated the Guidelines as mandatory, Powell
relies on the court’s review of his file with his probation officer only as it related to the Sentencing
Guideline Manual and the court’s statement that it had “little, if any, discretion and very little wiggle
room.” After review of the record, the district court’s comment of having little discretion clearly
referred to the revocation of Powell’s supervised release and not to the imposition of his sentence.
The district court judge stated that “. . . the Court is directed to revoke supervised release. The word,
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United States v. Powell
shall, appears, and that, as I understand it, leaves the Court with little, if any, discretion.” Tr. at 16.
The district court correctly stated that it was directed to revoke supervised release in a case such as
this one. Further, the court’s statement that it had “very little wiggle room,” clearly referred to the
district court’s position on Powell’s “career of violating the law,” as the district court judge’s
statement was, “It seems that I have very little wiggle room, noting, Mr. Powell, that beginning at
the age of 17 you began a career of violating the law.” Tr. at 16. None of Powell’s citations to the
record and nothing in the record shows that the district court treated the Guidelines as mandatory.
Section 3553(a) requires a district court to consider the following factors when imposing a sentence:
1) the nature and circumstances of the offense and the history and characteristics of defendant; 2)
the need for the sentence imposed; 3) the kinds of sentences available; 4) the sentencing guidelines;
5) any pertinent policy statement issued by the Sentencing Commission; 6) the need to avoid
unwarranted sentencing disparities; and 7) the need to provide restitution to any victims of the
offense. 18 U.S.C. § 3553(a) (2000). When reviewing a district court’s consideration of the §
3553(a) factors, we have never required “the ‘ritual incantation’ of the factors to affirm a sentence.”
United States v. Cage, 458 F.3d 537, 543 (6th Cir. 2006).
The record shows that the district court considered the § 3553(a) factors. The district court
stated that it had reviewed the Guidelines and had determined that a custodial sentence was
warranted. The district court gave a detailed list of Powell’s extensive criminal history including
an incident in 2007, while Powell was on supervised release, where Powell was caught attempting
to obtain a driver’s license under an alias. The court also noted that possession of a controlled
substance was a “substantial” violation. The court inquired about Powell’s employment and noted
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No. 10-1561
United States v. Powell
that Powell received an 80-month reduction on his original sentence, yet Powell was before the court
again with a similar charge. Further, the court imposed the 33 month sentence recognizing that
Powell’s mother relies on him for care, and also questioning Powell as to why he would continue
to jeopardize the health and welfare of his mother by involving himself in illegal activity. The
district court clearly considered Powell’s sentencing arguments, and the § 3553(a) factors, such as
the nature and circumstances of the offense and the history and characteristics of Powell, the need
for the sentence imposed, the kind of sentences available, and the sentence range recommended by
the Guidelines. For these reasons, we conclude that Powell’s sentence is procedurally reasonable.
The district court’s judgment is affirmed.
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