United States v. Gerald Sturgill

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0620n.06
No. 11-5974 FILED
UNITED STATES COURT OF APPEALS
Jun 13, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
GERALD D. STURGILL, ) DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)
BEFORE: KEITH, BOGGS, and MOORE, Circuit Judges.
PER CURIAM. Gerald D. Sturgill appeals through counsel a district-court judgment
revoking his supervised release and sentencing him to twelve months of imprisonment.
In 2009, Sturgill entered a guilty plea to a charge of conspiring to distribute oxycodone. He
was sentenced in 2010 to three months of imprisonment, based on a downward departure for
cooperation with the government, and two years of supervised release.
In 2011, Sturgill was charged with violating terms of his supervised release that prohibited
him from committing another crime, lying to his probation officer, and associating with criminals.
A preliminary hearing was held before a magistrate judge. There, Sturgill’s probation officer
testified that, during a visit to Sturgill’s home, he found notes, computer searches, and cell phone
texts demonstrating that Sturgill was selling pain relievers. Sturgill also told the probation officer
that his pain-medicine prescription had been stolen, but the probation officer soon found the bottles,
although with far fewer pills left than indicated by the date of the prescription. Finally, evidence
No. 11-5974
United States v. Sturgill
suggested that Sturgill’s son, who occasionally lived with Sturgill, had been selling controlled
substances and that Sturgill was aware of this. The magistrate judge determined that there was
probable cause to believe that Sturgill had violated his supervised release conditions. A hearing was
then held before the district judge. Sturgill admitted violating the three provisions above. The
parties had agreed to a sentence of twelve months of imprisonment. The district court found this
sentence sufficient and adopted it.
On appeal, Sturgill argues that there was an insufficient factual basis to find him guilty of
violating his supervised release, and that the sentence is unreasonable.
A party cannot agree to a course of action in the district court and then challenge it as error
on appeal. United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002). Sturgill admitted
that he violated the conditions of his supervised release. Therefore, he cannot argue that there was
an insufficient factual basis to find that he committed the violations.
We review the sentence imposed upon a revocation of supervised release for reasonableness
under an abuse-of-discretion standard. See United States v. Polihonki, 543 F.3d 318, 322 (6th Cir.
2008). Because Sturgill did not challenge the sentence below, his procedural issues are reviewed
for plain error. See United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005). Sturgill argues that
his sentence is procedurally unreasonable because the district court did not have a new presentence
report prepared, mention the guideline range, or consider the relevant sentencing factors. See Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Sedore, 512 F.3d 819, 822-23 (6th Cir.
2008). However, the original presentence report was very recent and Sturgill admits that his
situation had not changed. Furthermore, both the supervised-release-violation report and the
magistrate judge stated a guideline range of twelve to eighteen months, with a statutory maximum
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United States v. Sturgill
of twenty-four months. The district court can be presumed to have considered this information. See
Polihonki, 543 F.3d at 324. Finally, review of the sentencing transcript shows that the district court
did consider the relevant sentencing factors. Sturgill also attacks the substantive reasonableness of
his sentence for violating his release conditions, noting that it is four times longer than his original
sentence. Again, because this was the sentence Sturgill agreed to below, he may not challenge it on
appeal. See Aparco-Centeno, 280 F.3d at 1088.
For all of the above reasons, the district court’s judgment is affirmed.
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