United States v. Anthony Portee

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0557n.06
No. 15-1244 FILED
Aug 07, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
Plaintiff-Appellee, ) THE WESTERN DISTRICT OF
) MICHIGAN
v. )
) OPINION
ANTHONY PORTEE, )
)
Defendant-Appellant. )
Before: SUTTON and DONALD, Circuit Judges; and ZOUHARY, District Judge.*
ZOUHARY, District Judge. Defendant-Appellant Anthony Portee appeals the four-
month sentence imposed by the district court for his violation of the conditions of his supervised
release. The sole issue on appeal is whether the district court erred in sentencing Portee to a
period of incarceration instead of drug treatment, pursuant to 18 U.S.C. § 3583(d). We find the
district court considered alternative sentencing options and therefore affirm.
BACKGROUND
In September 2011, the district court sentenced Portee to twenty-four months of
imprisonment to be followed by three years of supervised release for mail fraud. Portee was
released from custody and began his term of supervised release in July 2013. In September
2014, the Probation Officer filed a petition to revoke Portee’s supervised release after he tested
positive for cocaine in April and August 2014. The district court convened a hearing in October
*
The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
2014, but adjourned it and directed Probation to assess Portee’s treatment needs and prepare a
supplemental report. In December 2014, the Probation Officer filed an amended petition, which
included details of an additional positive drug test in November 2014. The amended petition
charged the following violations: (1) commission of a state crime by possessing cocaine in
violation of M.C.L. § 333.7403(2)(a)(V); (2) possession of a controlled substance; (3) failure to
refrain from drug use; and (4) failure to participate in drug testing and treatment program.
On February 19, 2015, the district court held a supervised release violation hearing, at
which Portee was present with counsel. Portee pled guilty to the first three violations based on
his April and August positive drug tests, but would not admit to using cocaine in November. He
denied the facts as to the alleged fourth violation, and the Government dismissed the fourth
violation since it did not affect the applicable Guidelines range. The district court accepted
Portee’s guilty plea and determined, without objection, that Portee committed Grade B violations
and had a criminal history category of I. Based on this determination, the district court
concluded, and counsel agreed, that the applicable Guidelines range was four to ten months of
imprisonment. The district court sentenced Portee to four months of imprisonment and eighteen
months of supervised release, of which the first six months was to be spent at a residential
reentry center. Portee timely appealed.
STANDARD OF REVIEW
We review a district court’s sentence of imprisonment upon revocation of supervised
release “‘under a deferential abuse of discretion standard’ for reasonableness.” United States v.
Bolds, 511 F.3d 568, 575 (6th Cir. 2007) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).
But when, as here, defendant is asked whether he has any objections to the proposed sentence
pursuant to United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004), and fails to object, we
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review the sentence for plain error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir.
2008) (en banc).
To establish plain error, a defendant must show that the district court (1) made an error,
(2) that “was obvious or clear,” (3) that “affected defendant’s substantial rights” and (4) that
“affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. (quoting
United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
ANALYSIS
The district court did not err by failing to explicitly discuss at the hearing its discretion to
consider substance abuse treatment in lieu of incarceration, pursuant to 18 U.S.C. § 3583(d). See
United States v. Metcalf, 292 F. App’x 447, 450 (6th Cir. 2008); United States v. Johnson, 54 F.
App’x 426, 429 (6th Cir. 2002). The district court was aware of its obligation to consider
whether the exception in Section 3583(d) to mandatory revocation was warranted and referenced
the Violation Worksheet prepared by Probation, which expressly noted the Section 3583(d)
requirement (see R. 130, Violation Worksheet, at 652).
At the hearing, the district court reviewed Portee’s extensive history of drug abuse and
rehabilitation efforts, which included a drug testing program and group counseling. Although
the court’s initial reaction was to “just end it, put in an appropriate period of custody to punish
because that’s all that’s left and there’s no reasonable hope that Mr. Portee is going to take
advantage of what’s offered,” the court ultimately decided to “at least provide one opportunity
. . . for Mr. Portee to find a pathway here to help that I think he sorely needs” (R. 152, Transcript
of Hearing, at 710–11). The court believed Portee required a structured environment to assist in
drug rehabilitation, and adequately explained its rationale for imposing a sentence consisting of a
“combination of punishment” to account for “the ongoing sequence of actual use and possession
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of cocaine and the inability . . . to take advantage of the opportunities offered” and ongoing
supervision, including a stay at a residential reentry center (id. at 713–14). “[W]e do not require
magic words in the record of the sentencing hearing indicating that substance abuse treatment
was considered in order to uphold the district court’s prison sentence.” United States v. Crace,
207 F.3d 833, 836 (6th Cir. 2000); see also United States v. Williams, 333 F. App’x 63, 71 (6th
Cir. 2009) (affirming sentence where district court “obviously considered defendant’s need for
drug treatment”). The record in this case is sufficient to permit the conclusion that the district
court considered and rejected substance abuse treatment as an alternative to incarceration.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s sentence.
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