United States v. Tyrone Dumas ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0127n.06
No. 10-3013 FILED
Feb 25, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
TYRONE DUMAS, )
)
Defendant-Appellant. )
Before: GILMAN, GIBBONS, and COOK, Circuit Judges.
COOK, Circuit Judge. Tyrone Dumas appeals his sentence of ten months’ imprisonment for
violating the conditions of his supervised release. We affirm.
I.
Dumas pleaded guilty to conspiracy to possess with intent to distribute cocaine in violation
of 21 U.S.C. § 846 and received 15 months’ imprisonment and 48 months’ supervised release. Three
years into his supervised release, Dumas tested positive for cocaine, prompting the district court to
order chemical-dependency treatment. Eight months later, after failing to attend treatment sessions,
Dumas again tested positive for cocaine.
No. 10-3013
United States v. Dumas
These transgressions spawned a supervised-release revocation hearing. At the hearing, the
district court began by asking Dumas general questions about his drug use. Neither Dumas nor his
counsel objected to this questioning. Dumas readily conceded to using drugs during his supervised
release. When asked whether he wished to admit the violations or to proceed to hearing, Dumas
admitted the violations.
After discussing Dumas’s personal circumstances at length, the court revoked his supervised
release. It noted that it could sentence Dumas to a maximum of two years of prison, calculated his
guidelines range as four to ten months, and analyzed each of the relevant 18 U.S.C. § 3553(a)
factors. The court then sentenced Dumas to ten months’ imprisonment and two years of supervised
release, a sentence it characterized as “sufficient but not greater than necessary . . . to comply with
all the sentencing purposes of 3553(a).”
Once the court delivered its sentence, it asked whether “there [were] any legal
objections . . . not previously raised.” Dumas’s counsel objected to the length of the sentence, and
suggested supervised release in its place. When the court asked counsel to clarify whether she
objected on procedural or substantive grounds, she replied, “My objection is that [the sentence] is
substantively unreasonable.” Addressing this objection, the court further explained the
appropriateness of the sentence and the necessity of imprisonment.
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United States v. Dumas
II.
Dumas now challenges his sentence on both procedural and substantive grounds.
A.
Dumas contends that the district court committed procedural error in two ways. First, he
argues that the court neglected his mitigation arguments that treatment was preferable to
imprisonment; that he had transportation and financial problems; and that he complied with the terms
of his release for several years. Second, he claims that the court violated Federal Rule of Criminal
Procedure 32.1(a)(3) by questioning him without informing him of his right to a hearing. Because
Dumas failed to raise these procedural objections to the district court, even after it properly invited
them, we review only for plain error. See United States v. Lalonde, 509 F.3d 750, 757 (6th Cir.
2007).
This standard of review poses a problem for Dumas. Although he alleges two errors, he
neglects to argue that the errors “[are] plain[,] . . . affect[] substantial rights[,] . . . [and] seriously
affect[] the fairness, integrity, or reputation of judicial proceedings.” Id. at 757–58 (internal
quotation marks and citation omitted). But even if Dumas had properly put forth a plain-error
argument, his claims would still fall short. The first alleged error is no error at all: the district court
considered each of Dumas’s mitigating arguments, and even cited Dumas’s prior compliance as a
reason for imposing a sentence under the maximum. And the second alleged error did not adversely
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United States v. Dumas
affect his substantial rights. Even if we assume, without deciding, that the district court violated
Rule 32.1 when it questioned Dumas before he waived his right to a hearing, there is no basis to
conclude that his admissions affected his ultimate sentence. Dumas never contested his drug use,
nor could he have: he tested positive for cocaine on three different occasions, and he admitted his
cocaine use to his probation officer.
B.
Dumas also claims that the district court committed substantive error because his within-
guidelines sentence was longer than necessary to satisfy § 3553(a)’s sentencing purposes. Reviewing
the sentence “under a deferential abuse-of-discretion standard for reasonableness,” Lalonde, 509 F.3d
at 769 (internal quotation marks and citation omitted), we disagree.
Dumas received a sentence of ten months’ imprisonment because he continued to violate the
conditions of his supervised release. In sentencing Dumas, the court extensively evaluated his
personal circumstances and applied each of the relevant § 3553(a) factors. Because Dumas continued
his drug use despite the court’s prior leniency, the court reasonably viewed a sentence toward the high
end of the guidelines range as necessary to induce his compliance with the law. We discern no abuse
of discretion in the district court’s thoroughly reasoned analysis.
III.
For these reasons, we affirm.
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