United States v. Reginald Lomenick , 404 F. App'x 7 ( 2010 )

Case: 10-5525 Document: 006110799232 Filed: 11/24/2010 Page: 1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0739n.06
No. 10-5525 FILED
Nov 24, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff - Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
REGINALD LOMENICK, )
) OPINION
Defendant - Appellant. )
______________________________ )
)
Before: KETHLEDGE and WHITE, Circuit Judges; and BECKWITH*, Senior District
Judge.
HELENE N. WHITE, Circuit Judge. Reginald Lomenick appeals the district-court order
revoking his supervised release and imposing an additional sentence of two months of incarceration,
followed by one year of supervised release, including an initial three-month period of home
detention. Lomenick admits to violating the terms of his original supervised release. However, he
challenges the sentence as unreasonable on the grounds that it was imposed just one week before the
expiration of his original supervised-release period, and is excessive in length. We affirm.
*
The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
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United States v. Lomenick
I.
In February 2001, Lomenick pleaded guilty to one count of selling or distributing a controlled
substance in violation of 21 U.S.C. § 841(a). He was sentenced in July 2001 to 73 months’
imprisonment followed by five years of supervised release. The supervised release terms contained
several special conditions, including that “defendant shall refrain from excessive use of alcohol and
shall not purchase, possess, use, distribute, or administer any controlled substance or any
paraphernalia related to any controlled substances, except as prescribed by a physician,” and that
“defendant shall not associate with any persons engaged in criminal activity and shall not associate
with any person convicted of a felony, unless granted permission to do so by the probation officer.”
Lomenick completed his prison sentence and commenced his supervised release on April 15, 2005.
The supervision period was scheduled to expire on April 14, 2010.
Following his release from prison, Lomenick secured a job with Aramark as a grill cook at
the University of Tennessee at Chattanooga. He has been continuously employed there since
February 2006, with the exception of the summer months during which he has either worked other
jobs, including training other Aramark employees and working as a landscaper, or collected
unemployment compensation.
Random drug testing during his supervised release yielded several positive tests for narcotics.
In 2005 and 2006, Lomenick tested positive for marijuana and cocaine in separate tests.
Additionally, a number of his urine samples were deemed diluted and invalid after laboratory
analysis. As a result, he was placed in substance-abuse counseling, then a halfway house, and finally
was ordered to spend 20 weekends in jail. After completing the last of these sanctions, Lomenick
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did not test positive for drug use again until late 2009. Lomenick tested positive for marijuana once
in December 2009 and once in January 2010. As a result, he was placed on home detention until
April 7, 2010.
On April 8, 2010, just one week before the end of his supervised-release period, Lomenick
again tested positive for marijuana. Lomenick was issued a summons and returned to court on April
22, where he admitted to violating the conditions of his supervised release prohibiting the use of
controlled substances and association with persons engaged in criminal activity or convicted of a
felony. The court imposed a two-month sentence, followed by supervised release for one year, the
first three months to be completed on home detention. The court explained that it limited
incarceration to two months, to be served during the summer, to allow Lomenick to return to work
at his job at Aramark in the fall.
The judgment was filed on April 23, 2010. Lomenick timely appealed.
II.
“[A]ppellate review of sentencing decisions is limited to determining whether they are
‘reasonable.’” United States v. Penson, 526 F.3d 331, 336 (6th Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 46 (2007)) (alteration in original). The parties agree that an abuse-of-discretion
standard governs our review of both the procedural and substantive reasonableness of Lomenick’s
sentence.
A. PROCEDURAL REASONABLENESS
Pursuant to 18 U.S.C. § 3583(e)(3), the district court has the power to “revoke a term of
supervised release, and require the defendant to serve [time] in prison . . . if the court . . . finds by
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a preponderance of the evidence that the defendant violated a condition of supervised release . . . .”
Lomenick admitted to violating conditions of his supervised release. Therefore, the only question
on appeal is whether the sentence imposed is reasonable. The Supreme Court has laid out typical
examples of procedural error in sentencing: “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.” See Gall, 552 U.S.
at 51; see also Penson, 526 F.3d at 336.
The district court properly calculated the Sentencing Guidelines range as between 5 and 11
months. Neither party disputes the applicability of this Guidelines range.
In addition to properly calculating the Guidelines range, courts must also adequately consider
the factors listed in 18 U.S.C. § 3553(a).1 United States v. Polihonki, 543 F.3d 318, 323 (6th Cir.
1
The factors to be considered under 18 U.S.C. §3553(a) include:
(1) the nature and circumstances of the offense and the history and characteristics of
the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for--
(A) the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines--
...
(5) any pertinent policy statement--
...
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2008); see also 18 U.S.C. § 3583(e) (specifically applying § 3553 factors to revocation of supervised
release). “[A]lthough explicit mention of [the § 3553(a)] factors may facilitate review, this court
has never required the ritual incantation of the factors to affirm a sentence.” Polihonki, 543 F.3d at
324 (quoting United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005)). Here, the district court
noted that it “consider[ed] [the Guidelines] as well as various factors mentioned in . . . Section
3553(a).” It discussed several relevant considerations, including Lomenick’s continuing “substance
abuse problem” evidenced by the repeated positive tests for marijuana, and commented that the
problem “is not being addressed,” noting that “I’m considering your personal characteristics, your
need for treatment.” The court also discussed Lomenick’s positive work history, and acknowledged
that Lomenick had “made it on supervised release up until the last week.” Finally, the court stated
that “[t]here have to be some sanctions, because you’ve just kind of cruised along, and we’ve tried
to work with you.”
Although the court did not explicitly tie the above considerations to specific § 3553(a)
factors, its general invocation of the factors and its discussion of considerations relevant to
Lomenick’s personal characteristics, his history of marijuana use over the course of his term of
supervised release, the circumstances of his violation of supervised release, and his positive work
history and near-completion of the original period of supervised release, all evidence consideration
of the factors sufficient to overcome a procedural unreasonableness challenge. See Polihonki, 543
F.3d at 324. The court also attempted to structure Lomenick’s sentence such that it would minimally
(6) the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
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interfere with his job at Aramark by limiting jail time to two months during the summer, and
provided for a program of testing and/or treatment for drug abuse, further evidencing consideration
of relevant factors.
The court also adequately explained its chosen sentence. “[D]istrict courts are entitled to a
great deal of deference in explaining a sentence that falls within the Guidelines.” United States v.
Simmons, 587 F.3d 348, 360 (6th Cir. 2009). A court must explain its reasoning so as to enable
appellate review, but once it has “explain[ed] why it imposed a particular sentence, especially one
within the advisory Guidelines range, we do not further require that it exhaustively explain the
obverse–why an alternative sentence was not selected–in every instance.” United States v. Gale, 468
F.3d 929, 940 (6th Cir. 2006). The district court sufficiently explained the sentence imposed.
Lomenick’s procedural reasonableness challenge thus fails.
B. SUBSTANTIVE REASONABLENESS
If the sentence imposed is deemed procedurally reasonable, this court next looks to whether
the sentence is substantively reasonable–that is, whether the sentence given is “greater than necessary
to comply with the purposes of sentencing.” United States v. Houston, 529 F.3d 743, 755 (6th Cir.
2008). The “touchstone for our review is whether the length of the sentence is reasonable in light
of the § 3553(a) factors.” United States v. Recla, 560 F.3d 539, 549 (6th Cir. 2009) (quoting United
States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008)). A sentence will be considered substantively
unreasonable if it is arbitrary, based on impermissible factors, or based on the unreasonable
weighting of any factor. Id. “This court applies a presumption of substantive reasonableness in
reviewing sentences that are within the Guidelines range.” Polihonki, 543 F.3d at 322 (citing United
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States v. Wilms, 495 F.3d 277, 280-81 (6th Cir. 2007)). Here, Lomenick’s sentence was within the
5 to 11 month Guidelines range: two months of imprisonment plus three months of home detention,
amounting to five months of confinement. See U.S.S.G. § 7B1.3(c)(1). The one year of supervised
release also falls within the Guidelines range. See U.S.S.G. § 7B1.3(g)(2).
Lomenick argues that his sentence is unreasonable because it is “purely punitive, for the
relatively minor offense of contact with marijuana and people using marijuana” and that a “lesser
sentence . . . would have been appropriate.” He also argues that the sentence was “especially
unreasonable considering Mr. Lomenick was only one week away from completing his supervised
release term.” These considerations are insufficient to rebut the presumption of reasonableness of
the sentence. The court took into account that Lomenick substantially complied with the terms of
his original period of supervised release and nearly completed that period of supervision. It also
considered the countervailing evidence of Lomenick’s marijuana use and his admission to violating
the terms of his release. Consideration of the latter factors does not render the sentence unduly
punitive. Such a conclusion is undermined by the court’s efforts to structure the confinement to have
minimal impact on Lomenick’s ability to work and to facilitate continued drug testing or treatment.
III.
We conclude that the district court’s revocation of Lomenick’s supervised release and
imposition of an additional sentence was procedurally and substantively reasonable. Therefore, we
AFFIRM.