United States v. Jason Zabel

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0112p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 21-5766
│
v. │
│
JASON ZABEL, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 1:20-cr-00022-1—Gregory N. Stivers, District Judge.
Decided and Filed: May 23, 2022
Before: SUTTON, Chief Judge; COLE and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Frank W. Heft, Jr., Donald J. Meier, OFFICE OF THE FEDERAL DEFENDER,
Louisville, Kentucky, for Appellant. Monica Wheatley, UNITED STATES ATTORNEY’S
OFFICE, Louisville, Kentucky, for Appellee.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Mammoth Cave National Park in
Kentucky is home to the world’s longest known cave system, spanning more than 400 miles.1
1A Universe Beneath Mammoth Cave National Park, NAT’L PARK FOUND, https://www nationalparks.org/
connect/explore-parks/mammoth-cave-national-park (last visited May 13, 2022).
No. 21-5766 United States v. Zabel Page 2
It is also where Jason Zabel committed abusive sexual contact against a female National Park
Service employee—a crime for which he pled guilty and received a sentence of 18 months’
imprisonment, followed by a life term of supervised release. On appeal, Zabel argues that the
district court erred in denying his pre-guilty-plea motion to suppress incriminating statements he
made to park rangers and that his sentence—both the term of incarceration and lifetime
supervision—was procedurally and substantively unreasonable. He also contends that his
statutory maximum term of supervised release violates the Eighth Amendment’s prohibition
against cruel and unusual punishment. For the following reasons, we affirm the district court’s
judgment and sentence.
I.
On August 4, 2020, United States Park Ranger William Jaynes responded to an incident
report at Mammoth Cave. When he arrived at the parking lot, he encountered a “slightly out of
breath” female archaeology technician whose job was to monitor a trail restoration project inside
the cave. She explained that Jason Zabel, one of the contractors working on the restoration
project, had just pinned her against a wall and attempted to kiss her, grabbed her buttocks and
breasts, and exposed his penis to her without her consent while she was leaving the cave. Armed
with a description of Zabel’s appearance and location, Ranger Jaynes and another park ranger
who arrived on the scene entered the cave to find him.
The park rangers used an elevator to enter the cave and then walked approximately
25 minutes through its dark, narrow passages until they heard a group of workers speaking.
Ranger Jaynes recorded the ensuing encounter from his body camera, which began with the park
rangers introducing themselves to the group as law enforcement officers. They then asked: “Is
there somebody here named Jason?” When Zabel raised his hand and confirmed his identity, the
rangers said: “Come this way and chat with us for a few minutes.”
Zabel followed the park rangers around the corner for less than 2 minutes where his
coworkers could not hear their conversation. There, Zabel asked if he could use the restroom,
and the park rangers replied: “Is there a bathroom around here?” Zabel stated there was a
No. 21-5766 United States v. Zabel Page 3
restroom near the cave’s entrance, but the rangers responded that “we’re quite a ways from
there” and “you’re going to have to hold it for a few minutes.”
Before the park rangers told Zabel about the accusations made against him, they
explained that he was “not under arrest,” that he was “free to go,” that he had “no warrants,” that
he did not have to talk to them, that it was his “option” to do so, and that they would much rather
he be quiet than lie to them. As an alternative to using the restroom near the cave’s entrance,
Zabel requested to walk to a nearby location where there were “a couple of empty buckets”
because he was unsure how “much further than that [he’d] be able to make it.” The park rangers
responded “alright, first,” and then proceeded to question Zabel about what happened with the
female employee that morning.
Zabel made several incriminating statements during the interview, including that he had
grabbed the female employee’s butt in the elevator, asked to kiss her, and showed her his penis,
during which he “may have been a little” erect or excited. The interview lasted less than 20
minutes, after which the park rangers told Zabel he would need to exit the cave with them. The
rangers frisked Zabel for weapons and eventually allowed him to use the restroom, but they did
not handcuff him until they reached the cave’s surface due to the potentially dangerous nature of
the walk out.
Zabel was later indicted for knowingly engaging in sexual contact with another person
without that other person’s permission, in violation of 18 U.S.C. § 2244(b). Zabel moved to
suppress his incriminating statements, arguing that the park rangers improperly solicited those
statements during a custodial interrogation without first advising him of his Miranda2 rights.
The magistrate judge recommended that the motion be denied in relevant part because Zabel was
not “in custody” for purposes of Miranda until the park rangers patted him down and told him to
exit the cave. The district court adopted the recommendation over Zabel’s objections, agreeing
that the park rangers were not required to provide Zabel the Miranda warnings because, under
the totality of the circumstances, he was not in custody during the interview. After failing to
2A suspect’s “Miranda rights” are: “the right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one
will be appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. 436, 479 (1966).
No. 21-5766 United States v. Zabel Page 4
suppress his incriminating statements, Zabel pled guilty, without a plea agreement, to the single
charge in the indictment, and admitted that he “intentionally grabbed the victim’s buttocks and
clothing with an intent to gratify his own sexual desire, all without the victim’s consent.”
On June 9, 2021, the probation office circulated a Presentence Investigation Report
(“PSR”) describing the offense conduct above based on Zabel’s admissions and what the victim
told Ranger Jaynes in the Mammoth Cave parking lot. On July 6, 2021, more than two weeks
before Zabel’s sentencing date, the probation office circulated a revised PSR that contained
“more detailed information regarding the victim’s account of the offense” than was included in
the initial report, indictment, or factual basis presented at the guilty-plea hearing. Zabel’s
counsel indicated that he discussed these “previously unknown allegations” from the revised
PSR with Zabel sometime on or before July 14, 2021, and that Zabel denied some of those
allegations.
Based on the revised PSR, the government’s July 12, 2021 sentencing memorandum
sought an upward variance and an upward departure under U.S.S.G. § 5K2.8 for Extreme
Conduct because Zabel’s behavior was more egregious than what constitutes a typical abusive
sexual contact. One day before the sentencing hearing, the government also sought to resolve
the parties’ remaining factual disputes by filing under seal Ranger Jaynes’ written incident report
and the victim’s videotaped interview from August 5, 2020. The government simultaneously
provided copies of these exhibits to Zabel’s counsel, but technical issues prevented him from
reviewing the victim’s recorded statement before the hearing.
As the district court noted at the July 22, 2021 sentencing hearing, the victim’s recorded
statement did not contradict anything in the indictment or the factual basis for the guilty plea, but
it certainly “paint[ed] a much more serious picture” of what happened in the cave. In it, the
victim described in detail that as she was attempting to leave the cave, Zabel (who she had only
seen in passing a few times) followed her, grabbed her arm, and made suggestive comments
towards her, including that he wanted to see her in a bikini. When the victim made it halfway
out of the cave, Zabel asked to touch her buttocks, asked where she lived, and said he wanted to
wake up next to her in the morning. Zabel then ran ahead of the victim, and his persistent
advances quickly turned physical. And before the victim could surface from the cave, Zabel had
No. 21-5766 United States v. Zabel Page 5
cornered her against a wall, attempted to kiss her, placed his arm around her, grabbed her
buttocks, breasts, and pubic area over her clothes, asked for oral sex, exposed his penis, and
masturbated in front of her, all while making repeated sexual comments. She said she felt
trapped in the cave and that Zabel’s advances were “very unwanted.” Ranger Jaynes included a
summary of these statements in his written report.
Before proceeding with sentencing, the district court recessed for over an hour so that
Zabel and his counsel could review the victim’s video-recorded statements. The district court
also provided Zabel an opportunity to testify if he disagreed with anything the victim said, but
Zabel declined to do so. As a result, the district court relied on the victim’s statements and
sentenced Zabel to 18 months’ imprisonment due to his background, the severity of his crime
and its impact on the victim, the need to punish him for the offense, and the need to deter others
from engaging in similar conduct. The criminal judgment reflects that this sentence was both an
upwards departure under U.S.S.G. § 5K2.8 and an upwards variance.3 The district court also
imposed a life term of supervised release following Zabel’s release from custody.
On appeal, Zabel now challenges: (1) the district court’s denial of his pre-guilty-plea
motion to suppress; (2) the procedural and substantive reasonableness of both his custodial
sentence and term of supervised release; and (3) whether his lifetime supervision violates the
Eighth Amendment’s prohibition against cruel and unusual punishment. We address each of
these arguments in turn.
II.
A. Motion to Suppress
Zabel appeals the district court’s denial of his motion to suppress incriminating
statements he made to park rangers while in Mammoth Cave, claiming he was in custody during
3A guidelines “departure” refers to “a sentence outside the advisory range or an assignment of a [different]
criminal history category” that “results from the district court’s application of a particular Guidelines provision, such
as [§ 5K2.8].” United States v. Grams, 566 F.3d 683, 686-87 (6th Cir. 2009). A “variance” refers to “a sentence
outside of the advisory Guidelines range based upon the district court’s weighing of one or more of the sentencing
factors of § 3553(a).” Id. Although these are distinct concepts, “the same facts and analyses can, at times, be used
to justify both a Guidelines departure and a variance[.]” Id.
No. 21-5766 United States v. Zabel Page 6
their interview and was not informed of his Miranda rights. As a preliminary matter, “[i]t is
elemental that a guilty pleading defendant may not appeal an adverse pre-plea suppression of
evidence motion unless he has preserved the right to do so by entering a conditional plea of
guilty in compliance with [Federal Rule of Criminal Procedure] 11(a)(2).” United States v.
Herrera, 265 F.3d 349, 352 (6th Cir. 2001). We have strictly construed Rule 11(a)(2)’s
requirement “that a conditional guilty plea must be in a writing that reserves the right to appeal
an earlier advance ruling on a pretrial motion and the writing must bear the government’s
consent.” Id. The problem for Zabel is that he did not have a plea agreement in this case, and
there is no evidence in the record of any writing preserving his right to appeal the district court’s
suppression ruling. Instead, there is only the oral discussion that took place between one of his
attorneys, Ms. Beyl, and the district court during the plea hearing:
MS. BEYL: Judge, just one thing. I know that this is an open plea, so he reserves
his right to appeal. Mr. Meier did make note that there was a suppression issue
that was decided, and Mr. Zabel lost, and that as part of his appellate rights, it
would encompass that suppression issue.
THE COURT: All right.
MS. BEYL: So I just wanted to make sure that was clear for the record.
THE COURT: All right. Thank you. Well, you do understand, Mr. Zabel, that
you have a right to appeal -- you will have the right to appeal that suppression
ruling notwithstanding your plea of guilty?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Thank you, Ms. Beyl, for making sure we got that on
the record.
To be clear, this colloquy did not preserve Zabel’s appellate rights because “neither [Zabel’s]
belief nor the district court’s misstatement of the law are enough to trump the plain language of
Rule 11” requiring a writing. Herrera, 265 F.3d at 352. Without such a writing, Zabel waived
his right to appeal the district court’s denial of his pre-plea motion to suppress. Id. Unlike in
Herrera, however, the government has expressly declined to assert Zabel’s waiver as an
affirmative defense in this case. And given that we are not required to enforce non-jurisdictional
appellate waivers sua sponte, we have decided to consider Zabel’s suppression challenge on the
merits. See Jones v. United States, 689 F.3d 621, 624 n.1 (6th Cir. 2012).
No. 21-5766 United States v. Zabel Page 7
Where, as here, the district court denies a defendant’s motion to suppress, we review the
court’s findings of fact (viewed in the light most favorable to the government) for clear error and
its conclusions of law de novo. United States v. Young, 847 F.3d 328, 342 (6th Cir. 2017)
(citations omitted). Whether Zabel was “in custody” during the park rangers’ interview is a
mixed question of law and fact that we review de novo. United States v. Levenderis, 806 F.3d
390, 399 (6th Cir. 2015) (citation omitted).
The Fifth Amendment requires law enforcement officers to advise a person of their so-
called Miranda rights, including the right to remain silent, before interrogating them while they
are “in custody.” See United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009); Miranda,
384 U.S. at 444-45. Because there is no dispute that park rangers questioned Zabel without
advising him of his Miranda rights, the only issue is whether Zabel was “in custody” when he
made incriminating statements. In determining whether someone is “in custody” for purposes of
Miranda, courts focus on “the objective circumstances of the interrogation” and “how a
reasonable person in the position of the individual being questioned would gauge the breadth of
his or her freedom of action.” Panak, 552 F.3d at 465 (citation omitted). “The ultimate inquiry
is whether, under the totality of the circumstances, the interviewee’s freedom of movement was
restrained to a degree associated with formal arrest.” United States v. Luck, 852 F.3d 615, 621
(6th Cir. 2017) (citing Panak, 552 F.3d at 465). We have identified four, non-exhaustive factors
to help guide this inquiry: “(1) the location of the interview; (2) the length and manner of the
questioning; (3) whether there was any restraint on the individual’s freedom of movement; and
(4) whether the individual was told that he or she did not need to answer the questions.” United
States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010).
Having reviewed the body camera footage of the encounter, we agree with the district
court that the circumstances surrounding Zabel’s interview would not lead a reasonable person to
believe that he was in custody until the park rangers frisked him and informed him that he would
be placed under arrest. To start, the location of the interview was inside Mammoth Cave—
Zabel’s place of employment for the prior 6-7 months. Zabel was also familiar with the exact
location of the interview, as it was only a short walk from where he was speaking with his
coworkers, and he knew about a couple of buckets that were nearby. We have noted that “police
No. 21-5766 United States v. Zabel Page 8
questioning taking place in the suspect’s . . . place of work is likely to be less intimidating than
questioning taking place at the police station,” United States v. Protsman, 74 F. App’x 529, 533
n.6 (6th Cir. 2003), where the goal is to “isolat[e] the suspect in unfamiliar surroundings ‘for no
purpose other than to subjugate the individual to the will of his examiner,’” Beckwith v. United
States, 425 U.S. 341, 346 n.7 (1976) (quoting Miranda, 384 U.S. at 457). That the interview
took place at Zabel’s jobsite weighs against him being “in custody.” See United States v.
Crossley, 224 F.3d 847, 861-62 (6th Cir. 2000); United States v. Mahan, 190 F.3d 416, 421-22
(6th Cir. 1999).
The length and manner of the interview also weigh against a finding of custody. For
example, the park rangers questioned Zabel for less than 20 minutes, and we have held that
suspects questioned for longer lengths of time were not in custody. See Levenderis, 806 F.3d
390, 400 (6th Cir. 2015) (suspect not in custody during 30-minute interview and second, shorter
interview); see also Mahan, 190 F.3d at 420 (suspect not in custody during 90-minute interview).
The park rangers may have occasionally interrupted Zabel when he was speaking, but, as the
district court noted, their questioning and demeanor was not hostile. At one point during the
interview, a group of Zabel’s coworkers walked by and the park rangers—at Zabel’s request—
even stopped asking questions until those coworkers were out of earshot. Consistent with the
respectful nature of the interview, Zabel also asked if he could shake the park rangers’ hands
when the questioning was over.
Zabel nonetheless argues that he was in custody during the interview because the park
rangers physically restrained his freedom of movement on several occasions. He claims that
when the rangers first contacted him and said “come this way and chat with us for a few
minutes,” they limited his movement by ordering (not requesting) him to follow them to a new
location away from his coworkers. While we agree with Zabel about what the rangers said, we
also note that they did not place Zabel in handcuffs during the interview and they “at no time
made any show of force or brandished a firearm or handcuffs, or any other equipment ordinarily
associated with formal arrest or custody” until after he made incriminating statements. See
Mahan, 190 F.3d at 422. It also appears that the rangers wanted to separate Zabel from his
coworkers before asking questions due to the sensitive subject of the interview and to avoid
No. 21-5766 United States v. Zabel Page 9
letting his coworkers hear about the victim’s then-unsubstantiated allegations, not out of a desire
to restrain him physically. See United States v. Salvo, 133 F.3d 943, 951 (6th Cir. 1998).
The strongest factor in Zabel’s favor is that the park rangers did not immediately allow
him to use the restroom upon request. It appears that when Zabel first asked to relieve himself,
the rangers said “you’re going to have to hold it for a few minutes” because the nearest restroom
was 25-30 minutes away by the cave’s entrance. But distance could not have been the only
factor because they also ignored his second request to use the restroom in some nearby buckets.
After being twice denied the ability to use the restroom, it is entirely possible that a reasonable
person in Zabel’s position may have felt temporarily restrained in their freedom of movement.
Although there are factors that both support and undermine the custodial nature of the
interview, what undoubtedly tips the scales against Zabel is that the park rangers explicitly told
him that he was not under arrest and did not have to talk to them before describing the
allegations against him. No one factor is dispositive, but “[w]hether investigators inform a
suspect that he is free to leave or to refuse to answer questions is the most important
consideration in the Miranda custody analysis.” United States v. Martinez, 795 F. App’x 367,
371 (6th Cir. 2019) (citing Howes v. Fields, 565 U.S. 499, 515 (2012)). In fact, we have held
that when law enforcement officers provide clear assurances that a person is free to leave or
terminate questioning, those assurances “likely would . . . guarantee[] the noncustodial nature” of
the interview. See Panak, 552 F.3d at 468. Thus, even if a reasonable person in Zabel’s position
may have felt restrained when the park rangers denied his requests to use the restroom, their
repeated assurances that he was free to leave and was not required to speak with them negated
any notion he was restrained to a degree associated with formal arrest or that the interview was
custodial in nature. See Protsman, 74 F. App’x at 535.
In sum, the totality of the circumstances indicate that Zabel was not “in custody” for
purposes of Miranda when he made incriminating statements to park rangers before his formal
arrest, and therefore the district court properly denied his motion to suppress.
No. 21-5766 United States v. Zabel Page 10
B. Reasonableness of Sentence
Next, we address Zabel’s challenges to his 18-month custodial sentence and life term of
supervised release. We review a district court’s chosen sentence for whether it is procedurally
and substantively reasonable. Young, 847 F.3d at 370 (citing Gall v. United States, 552 U.S. 38,
51 (2007)). A sentence is procedurally reasonable if the district court did not commit any
significant procedural errors, such as failing to “properly calculate the guidelines range, treat that
range as advisory, consider the sentencing factors in 18 U.S.C. § 3553(a),4 refrain from
considering impermissible factors, select the sentence based on facts that are not clearly
erroneous, and adequately explain why it chose the sentence.” United States v. Rayyan, 885 F.3d
436, 440 (6th Cir. 2018) (citing Gall, 552 U.S. at 51). Where, as here, the defendant failed to
object after the district court pronounced the sentence and asked for any objections, we review
the procedural reasonableness of the sentence only for plain error. See United States v. Bostic,
371 F.3d 865, 872-73 (6th Cir. 2004). To demonstrate plain error, the defendant-appellant must
“prove: (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or
clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact
seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United
4The § 3553(a) factors that district courts should consider when imposing a sentence are:
(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 . . . the applicable category of
offense committed by the applicable category of defendant as set forth in the guidelines . . . ;
(5) any pertinent policy statement . . . issued by the Sentencing Commission . . . ;
(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.
18 U.S.C. § 3553(a).
No. 21-5766 United States v. Zabel Page 11
States v. Coppenger, 775 F.3d 799, 803 (6th Cir. 2015) (citing United States v. Vonner, 516 F.3d
382, 386 (6th Cir. 2008) (en banc)).
If we agree that the sentence is procedurally sound, we then consider whether the
sentence is substantively reasonable and not “too long (if a defendant appeals) or too short (if the
government appeals).” Rayyan, 885 F.3d at 442. “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 § 3553(a).’” Young,
847 F.3d at 371 (quoting United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). We review
the substantive reasonableness of a sentence for abuse of discretion, with the ultimate inquiry
being whether the district “court placed too much weight on some of the § 3553(a) factors and
too little on others in sentencing the individual.” Rayyan, 885 F.3d at 442. In this context, our
review is “highly deferential” because weighing sentencing factors “is a matter of reasoned
discretion, not math.” Id. An abuse of discretion exists only if we are “left with a definite and
firm conviction that the district court committed a clear error of judgment.” United States v.
Perez-Rodriguez, 960 F.3d 748, 753 (6th Cir. 2020) (quoting Coach, Inc. v. Goodfellow,
717 F.3d 498, 505 (6th Cir. 2013)).
1. 18-Month Term of Imprisonment
Procedural Reasonableness. Zabel first argues that the district court committed
procedural error by not adequately explaining why it imposed an 18-month, above-guidelines
sentence, and by not considering any of the § 3553(a) factors except his age, the nature and
circumstances of his offense, and the need for punishment. We have “held that although a
sentence should reflect the considerations listed in § 3553(a), ‘there is no requirement that the
district court engage in a ritualistic incantation of the § 3553(a) factors it considers.’” United
States v. McBride, 434 F.3d 470, 474 (6th Cir. 2006) (quoting United States v. Chandler,
419 F.3d 484, 488 (6th Cir. 2005)). Instead, the district court need only “set forth enough to
satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis
for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007) (citation omitted). And as explained above, we review Zabel’s procedural-
reasonableness challenges only for plain error.
No. 21-5766 United States v. Zabel Page 12
Here, the district court accurately calculated the guidelines range and treated it as
advisory by imposing a sentence above that range. It then explicitly addressed most of the
§ 3553(a) factors, including the “history and characteristics of the defendant,” the “nature and
circumstances of the crime,” the need to “protect the public from Mr. Zabel,” and the need “to
deter others from engaging in this kind of conduct.” See 18 U.S.C. § 3553(a)(1)-(2).
Expounding on these factors, the district court further explained that Zabel’s age and non-
criminal background weighed in favor of a lower sentence, but the “paramount” need to punish
his “incredibly outrageous conduct,” “the profound impact on the victim,” and the importance of
deterring others from thinking his behavior “wasn’t really a big deal” justified an above-
guidelines sentence. It also noted that it would not impose a 24-month sentence—the statutory
maximum—because Zabel “did not attempt to remove the victim’s clothing” or “use[] actual
force.” “Taking all of these factors into account,” the district court determined that “a sentence
of 18 months’ custody is sufficient but not greater than necessary to punish [Zabel] for his
actions.” On this record, we find that “the district court explained its reasoning to a sufficient
degree to allow for meaningful appellate review—the touchstone of procedural reasonableness.”
United States v. Zobel, 696 F.3d 558, 569 (6th Cir. 2012) (citation and internal quotation marks
omitted).
Zabel next argues that his above-guidelines sentence is procedurally unreasonable
because the district court did not explain how his conduct was atypical for abusive sexual
contact. This argument is misplaced because the district court clearly explained at the sentencing
hearing that Zabel’s conduct “is not within the heartland of abusive sexual contact” because,
among other things, he made repeated and increasingly aggravated sexual advances “that went
on and on and on in the cave, where [he and the victim were] alone and separated from society,”
with nowhere for the victim to run or call for help. The district court provided a similar
explanation in its written statement of reasons. Whether the district court’s explanation justified
an 18-month sentence is a question for the substantive reasonableness inquiry. United States v.
Arnold, 838 F. App’x 985, 988 (6th Cir. 2021).
Changing course slightly, Zabel complains that he was prejudiced and unfairly surprised
when the district court relied on Ranger Jaynes’ written report and the victim’s recorded
No. 21-5766 United States v. Zabel Page 13
statements—which were produced only one day before the sentencing hearing—to impose an
upwards departure and variance. A sentence may be procedurally unreasonable if “the facts or
issues on which the district court relied to impose a variance came as a surprise and [the
defendant’s] presentation to the court was prejudiced by the surprise.” Coppenger, 775 F.3d at
804 (citation omitted). Here, there is no question that the district court relied on Ranger Jaynes’
report and the victim’s statement as important factors in imposing an above-guidelines sentence.
However, a district court does not commit reversible procedural error if it relies on allegedly
surprising facts that were “reasonably foreseeable,” thus providing the defendant or his counsel
“a meaningful opportunity to contest the veracity or relevance of the information.” See United
States v. Hatcher, 947 F.3d 383, 391 (6th Cir. 2020) (quoting United States v. Fleming, 894 F.3d
764, 769 (6th Cir. 2018)). Zabel and his counsel could have reasonably anticipated that the
victim’s statements would be relevant and important considerations at sentencing, especially
because they appeared in the July 6, 2021 revised PSR and were quoted extensively in the
government’s July 12, 2021 sentencing memorandum. Zabel’s counsel also discussed this
information with Zabel more than one week before the sentencing hearing, and there is nothing
suggesting that Zabel’s counsel would have handled the sentencing hearing differently if he
received the recorded statements earlier. And even if Zabel disagreed with some of the
statements, the district court’s reliance on that information was not plain error because Zabel
refused his opportunity to provide his version of events or challenge the victim’s statements on
the stand. Accordingly, it was not procedurally unreasonable or surprising for the district court
to rely on Ranger Jaynes’ report and the victim’s videotaped statements at sentencing.
Zabel also contends that the district court failed to comply with Federal Rule of Criminal
Procedure 32(h) by not notifying him that it was considering an upward departure based on the
victim’s statements. Rule 32(h) provides:
[b]efore the court may depart from the applicable sentencing range on a ground
not identified for departure either in the presentence report or in a party’s
prehearing submission, the court must give the parties reasonable notice that it is
contemplating such a departure.
No. 21-5766 United States v. Zabel Page 14
Fed. R. Civ. P. 32(h) (emphasis added).5 “Only ‘reasonable notice’ is required, and what
constitutes reasonable notice will vary depending on the circumstances of the particular case.”
United States v. Erpenbeck, 532 F.3d 423, 443 (6th Cir. 2008) (citations omitted). It is true, as
Zabel argues, that the PSR did not recommend a departure or above-guidelines sentence. But
Rule 32(h) also explicitly refers to “a party’s prehearing submission,” and the government’s
prehearing sentencing memorandum put Zabel on notice that it was recommending an upwards
departure under § 5K2.8 based, at least in part, on the victim’s statements. Accordingly, the
district court did not “depart from the applicable sentencing range on a ground not identified for
departure,” and therefore it had no independent duty under Rule 32(h) to provide Zabel
reasonable notice that it was considering an above-guideline sentence. See United States v.
Quinlan, 473 F.3d 273, 279-80 (6th Cir. 2007) (holding that the government satisfied the
requirements of Rule 32(h) because its sentencing memorandum recommended an above-
guidelines sentence).
In a final effort to demonstrate his sentence was procedurally unreasonable, Zabel makes
some ancillary arguments that are foreclosed by binding Sixth Circuit precedent. For example,
Zabel claims that the district court committed procedural error by not considering whether a
Kentucky state court would have imposed a potentially lower sentence under Kentucky law.
This ignores our well-settled holding that a district court commits reversible error and imposes a
procedurally unreasonable sentence if it “consider[s] the defendant’s likely state court sentence
as a factor in determining his federal sentence.” United States v. Malone, 503 F.3d 481, 486 (6th
Cir. 2007); United States v. Boucher, 937 F.3d 702, 712 (6th Cir. 2019). Zabel also argues that
the district court erred by not considering collateral consequences of his sentence, including that
he would have to register as a sex offender and face difficulties securing future employment and
providing financial support to his family. Again, our precedent bars district courts from
considering the collateral consequences of a defendant’s conviction when determining an
appropriate sentence in light of the § 3553(a) factors. United States v. Musgrave, 761 F.3d 602,
5Rule 32(h)’s notice requirement does not apply to variances. Irizarry v. United States, 553 U.S. 708, 714
(2008).
No. 21-5766 United States v. Zabel Page 15
608 (6th Cir. 2014); United States v. Adkins, 744 F. App’x 292, 299-300 (6th Cir. 2018). For
these reasons, we find that there was no plain error and Zabel’s sentence was procedurally sound.
Substantive Reasonableness. Zabel also challenges the substantive reasonableness of his
sentence for many of the same reasons he challenged the district court’s procedures, namely that
the district court (1) afforded too much weight to the need for punishment, (2) did not consider
several § 3553(a) factors, and (3) imposed an arbitrary sentence by not considering state law or
the collateral consequences of his conviction. We have already explained why his third
argument is contrary to law, and we do not need to address his second argument here because
“[t]he point [of substantive unreasonableness] is not that the district court failed to consider a
factor or considered an inappropriate factor; that’s the job of procedural unreasonableness.”
Rayyan, 885 F.3d at 442. Instead, we must consider only whether the district court abused its
discretion by placing unduly disproportionate weight on some of the § 3553(a) factors in
imposing an above-guidelines sentence.
Unlike sentences falling within the guidelines range, a sentence outside the guidelines
range is not presumed substantively reasonable. Zobel, 696 F.3d at 569 (citing United States v.
Bolds, 511 F.3d 568, 581 (6th Cir. 2007)). Of course, that does not mean that an above-
guidelines sentence is presumed unreasonable, it just means that the district court must “consider
the extent of the deviation and ensure that the justification is sufficiently compelling to support
the degree of the variance.” Gall, 552 U.S. at 50. The larger the variance, the more significant
the justification needs to be. Id. Moreover, even if one factor (here, punishment) appears to be
the driving force behind the sentence, “[a] district court does not commit reversible error simply
by attaching great weight to a single factor.” Zobel, 696 F.3d at 571 (citations and internal
quotation marks omitted). If the district court considered and weighed all relevant § 3553(a)
factors, then the defendant bears “a much greater burden in arguing that the court has given an
unreasonable amount of weight to any particular one.” Id. (citation omitted).
In its statement of reasons, the district court provided the following justification for
imposing a sentence that was 6 months (or 50 percent) more than the top of the guidelines range:
The defendant’s conduct occurred in an isolated location at the victim’s place of
work, a federal park. The sexual conduct itself was egregious. The defendant
No. 21-5766 United States v. Zabel Page 16
made unwanted sexual advances towards the victim, a federal employee;
assaulted the victim by grabbing the victim’s buttock; and exposed his genitals
and masturbated in front of the victim without consent. The defendant’s conduct
persisted. The defendant followed the victim and continued masturbating while
the victim sought to remove himself/herself from the defendant. The event has
caused long-term negative consequences for the victim at the victim’s workplace
and for the victim’s career. A sentence within the advisory guideline range would
depreciate the seriousness of the offense and the offense conduct, which is
extreme. An upward departure/variance is warranted.
The district court’s statement of reasons, combined with its explanation at the sentencing
hearing, demonstrates that it considered all relevant § 3553(a) factors, attached significant but
not unreasonable weight to punishment concerns, and imposed a modest above-guideline
sentence to account for Zabel’s extreme conduct and its long-lasting impact on the victim. We
cannot say that was an abuse of discretion.
Accordingly, we will affirm Zabel’s 18-month term of imprisonment.
2. Life Term of Supervised Release
Procedural Reasonableness. We now consider Zabel’s argument that the district court
committed a procedural error by not adequately explaining why it imposed a life term of
supervised release. Zabel did not raise this objection at sentencing, so our review for procedural
reasonableness is again limited to plain error.
There is no question that the district court had authority to impose a life term of
supervised release. “Congress insists that lifetime supervision be available to courts in
sentencing sexual offenders,” like Zabel. United States v. Kennedy, 499 F.3d 547, 553 (6th Cir.
2007). We see this insistence in 18 U.S.C. § 3583(k), which provides that “the authorized term
of supervised release for any offense under . . . [§] 2244 . . . is any term of years not less than 5,
or life.” We also see it reflected in the guidelines, which both authorize lifetime supervision and
recommend that district courts impose the maximum term of supervised release for sex
offenders. See U.S.S.G. § 5D1.2(b)(2). The parties do not dispute that a life term falls within
the relevant range here.
No. 21-5766 United States v. Zabel Page 17
“Although the Guidelines counsel a lifetime of supervision, the district court still had to
explain why it chose this term.” United States v. Babcock, 753 F.3d 587, 593 (6th Cir. 2014)
(citing United States v. Inman, 666 F.3d 1001, 1004 (6th Cir. 2012) (per curiam)). We
acknowledge that the district court’s stated reasons for imposing lifetime supervision were
sparse. Indeed, the entirety of the district court’s oral explanation at the sentencing hearing was
as follows:
Upon release from imprisonment, [Zabel] should be placed on supervised release
for the remainder of his life. Frankly, because I don’t understand how this could
have happened, I don’t see what in his background caused that to happen, I’m not
comfortable giving him a term of supervision less than life.
Nor did the district court elaborate in its written statement of reasons why lifetime supervision,
as opposed to a lesser amount of time, was appropriate. But the district court was not required to
provide an “extensive explanation” in this case “[b]ecause the life term of supervised release was
consistent with guideline recommendations.” United States v. Harmon, 593 F. App’x 455, 468
(6th Cir. 2014) (citing Rita, 551 U.S. at 346). What matters here is that the district court fully
explained why the § 3553(a) factors supported an 18-month, above-guideline sentence.
See Babcock, 753 F.3d 593. “In outlining its reasons for imposing the sentence of incarceration
. . . the district court was also outlining the reasons supporting the [term] of supervised release.”
Zobel, 696 F.3d at 572; United States v. Presto, 498 F.3d 415, 419 (6th Cir. 2007) (affirming
lifetime supervision as procedurally reasonable because “the district court . . . engaged in a single
consideration of the sentencing factors, which embraced both the incarceration sentence and the
supervised release term”). It is worth repeating that procedural reasonableness simply requires
the district court to consider the relevant § 3553(a) factors and explain its sentencing decisions in
a way that permits “reasonable appellate review.” Zobel, 696 F.3d at 569. The district court
complied with those requirements here.
Zabel’s procedural-reasonableness challenge relies heavily on our decision in Inman,
where we held that the district court committed plain error by not explaining why it imposed a
life term of supervised release over the parties’ joint recommendation for a ten-year term.
Inman, 666 F.3d at 1004. The district court in that case also imposed several burdensome
conditions of supervised release without explanation or factual support—an issue that does not
No. 21-5766 United States v. Zabel Page 18
apply here. Id. at 1004-06. In Inman, we also determined that the district court’s error affected
the defendant’s substantial rights “[b]ecause both the length of supervised release and the special
conditions were likely more severe than if the district court followed the correct procedure.” Id.
at 1007. That makes this case readily distinguishable because Zabel does not even mention that
he would have likely received a lesser term of supervised release if the district court’s allegedly
inadequate explanation—to the extent it was deficient at all—were more substantial. Nor would
he succeed on that argument because the district court clearly demonstrated familiarity with the
facts, the record evidence, the parties’ arguments, the revised PSR, and Zabel’s criminal
background (or lack thereof), and fully considered that information in sentencing Zabel to a life
term of supervised release. Harmon, 593 F. App’x at 469. Because Zabel has not met his
burden to show that either his rights or the fairness of the proceedings were affected by the
district court’s brief explanation, we do not find that the district court committed plain error in
this case.
Substantive Reasonableness. Zabel also argues that his term of supervised release is
substantively unreasonable because it is greater than necessary to comply with the purposes of
the sentencing laws and creates unwarranted disparities among offenders convicted of abusive
sexual contact. Zabel’s challenge faces two immediate hurdles. First, because lifetime
supervision is a within-guidelines sentence, we are entitled to afford that sentence a rebuttable
presumption of reasonableness. Bolds, 511 F.3d at 581 (citations omitted). Second, and more
generally, we must defer to the district court’s sentence if it is justified by the relevant § 3553(a)
factors, even if we would not have imposed the same sentence. United States v. Herrera-Zuniga,
571 F.3d 568, 591 (6th Cir. 2009) (citations omitted).
Applying this highly deferential standard of review, we do not find that the district court
abused its discretion in imposing a life term of supervised release. As we stated above, the
district court fully considered and discussed the relevant § 3553(a) factors, focusing on the need
to punish Zabel for his “incredibly outrageous conduct,” the need to deter others from engaging
in similar behavior, and the lasting and profound impact suffered by the victim. The court had
difficulty understanding why Zabel—who is in his thirties, had a robust employment history, has
been married for twelve years, has multiple children, and has no prior background of sexual or
No. 21-5766 United States v. Zabel Page 19
violent offenses—would have engaged in such serious conduct. While Zabel argues that there is
nothing in his background suggesting he will commit any future offenses, there is also nothing in
his background explaining why he isolated a female employee in a cave and committed repeated,
abusive sexual contact. The district court, therefore, properly exercised its discretion in
imposing a life term of supervision, which included a special condition preventing him from ever
contacting the victim again.
To Zabel’s disparity argument, one of the § 3553(a) factors is “the need to avoid
unwarranted sentence disparities among defendants with similar records who have been found
guilty of similar conduct[.]” 18 U.S.C. § 3553(a)(6) (emphasis added). Zabel argues that his
lifetime supervised release is unreasonable because such a lengthy term should be reserved only
for defendants convicted of sexual offenses against children. But while life terms of supervised
release may also be appropriate for child-related offenses, the need to avoid unwarranted
sentence disparities in this case refers to disparities between those convicted of abusive sexual
contact under § 2244(b). Aside from citing some general statistics regarding the length of
supervised release for those convicted of “sexual abuse,” Zabel has not identified any individuals
who engaged in similarly egregious conduct, with backgrounds as disconnected as his, that
received more lenient sentences. See United States v. Richardson, 349 F. App’x 38, 43 (6th Cir.
2009). Accordingly, we defer to the district court’s reasoned discretion that Zabel’s life term of
supervision will not create unwarranted sentence disparities amongst other similarly-situated
defendants.
Although we will affirm Zabel’s supervised release term as both procedurally and
substantively reasonable, that does not mean Zabel is left without any recourse for the remainder
of his natural life. Assuming Zabel rehabilitates himself, complies with his supervised release
conditions, and exhibits conduct commensurate with those who can exist in society without
sexually abusing others or committing crimes, he may be eligible for a modification of his
supervised release term under 18 U.S.C. § 3583(e)(1). That section provides that the district
court may, after considering the § 3553(a) factors, “terminate a term of supervised release and
discharge the defendant released at any time after the expiration of one year of supervised
release, . . . if it is satisfied that such action is warranted by the conduct of the defendant released
No. 21-5766 United States v. Zabel Page 20
and the interest of justice.” 18 U.S.C. § 3583(e)(1). Of course, we express no opinion regarding
whether Zabel will ever qualify for a modification of his release, we just note that he may have
that potential procedural option sometime in the future.
C. Eighth Amendment
Last, Zabel argues that his life term of supervised release is “grossly disproportionate” to
the crime for which he pled guilty, and therefore, his sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment. Zabel did not raise this challenge before the
district court, so we review for plain error whether his sentence is cruel and unusual. See Fed. R.
Crim. P. 52(b); Young, 847 F.3d at 363.
A sentence violates the Eighth Amendment only if it is “extreme” and “grossly
disproportionate to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.
concurring in part and concurring in the judgment). To determine whether a sentence violates
the Eighth Amendment, the Sixth Circuit has adopted the “narrow proportionality principle” set
forth by a plurality of the Supreme Court in Harmelin. See United States v. Layne, 324 F.3d 464,
473-74 (6th Cir. 2003). Consequently, we have recognized that the Eighth Amendment “does
not require strict proportionality between crime and sentence” and instead “forbids only extreme
sentences that are ‘grossly disproportionate’ to the crime.” Id. at 473.
Given these standards, “[a] defendant challenging [a] sentence under the Eighth
Amendment has a tremendously difficult burden to meet.” United States v. Hughes, 632 F.3d
956, 959 (6th Cir. 2011). And this tremendous burden becomes even heavier if the challenged
sentence falls within the relevant statutory range, as we must “grant substantial deference to the
. . . legislatures . . . in determining the types and limits of punishments for crimes.” Layne,
324 F.3d at 473. Practically speaking, “[a] sentence within the maximum set by statute generally
does not constitute cruel and unusual punishment.” Id. (quoting Austin v. Jackson, 213 F.3d 298,
302 (6th Cir. 2000)).
For the same reasons that Zabel’s life term of supervised release is substantively
reasonable, it is also constitutional under the Eighth Amendment. Sure, Zabel received a stiff,
statutory maximum term of supervised release for his conviction, but that does not make his
No. 21-5766 United States v. Zabel Page 21
sentence unconstitutional. Affording substantial deference to Congress’ decision and guided by
plain-error review, we do not find that Zabel’s lifetime supervision is so extreme and grossly
disproportionate to his conviction that it violates the Eighth Amendment.
III.
For the foregoing reasons, we AFFIRM Zabel’s sentence and the district court’s denial
of his motion to suppress.