United States v. Clifford Visage

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0655n.06
No. 12-6401
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jul 16, 2013
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CLIFFORD DALE VISAGE, ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
BEFORE: BOGGS and McKEAGUE, Circuit Judges; BECKWITH, District Judge.*
PER CURIAM. Clifford Dale Visage appeals his sentence.
In 2004, Visage pleaded guilty to possessing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court sentenced him to 21 months in prison, to be followed by two
years of supervised release. In 2007, Visage admitted that he violated the conditions of his
supervised release in several ways, including by having sexually explicit communications with
minors and by viewing sexually explicit photographs of minors. The district court revoked Visage’s
supervised release and sentenced him to 12 months in prison, to be followed by eight years of
supervised release. In 2010, Visage again admitted that he violated the conditions of his supervised
release in several ways, including by having unauthorized contact with minors and by failing to
*
The Honorable Sandra S. Beckwith, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 12-6401
United States v. Visage
notify a third party that he is a sex offender. The district court revoked Visage’s supervised release
and sentenced him to 23 months in prison, to be followed by a life term of supervised release.
In 2012, Visage admitted for a third time that he violated the conditions of his supervised
release in several ways, including by having unauthorized contact with minors. The district court
revoked Visage’s supervised release and sentenced him to 23 months in prison, to be followed by
a life term of supervised release.
On appeal, Visage argues that his sentence is unreasonable because the district court failed
to acknowledge his guidelines range of imprisonment and failed to adequately explain the basis for
the sentence. We review sentences imposed following revocation of supervised release under an
abuse-of-discretion standard for reasonableness, which has both a procedural and a substantive
component. United States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009). A sentence may be
procedurally unreasonable where a district court fails to calculate the defendant’s guidelines range
of imprisonment or fails to adequately explain the chosen sentence. Gall v. United States, 552
U.S. 38, 51 (2007). A sentence may be substantively unreasonable where a district court selects the
sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor. United States
v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008).
Visage’s sentence is both procedurally and substantively reasonable. During the revocation
hearing, the district court acknowledged that it had received a copy of the probation officer’s report
that identified the guidelines range, and the court heard arguments from defense counsel that Visage
should receive a within-guidelines sentence and from the government that Visage should receive an
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No. 12-6401
United States v. Visage
above-guidelines sentence of 23 months. While the district court did not explicitly discuss Visage’s
guidelines range of three to nine months in prison, it is reasonably clear from the record that the court
was aware of the guidelines range and exercised its discretion to vary upward. Further, the court
adequately explained that the above-guidelines sentence and life term of supervised release were
necessary based on Visage’s repeated violations while on supervised release, the fact that he had
made an effort to act on his sexual interest in minors, and the need to protect the public. Finally,
Visage’s sentence is substantively reasonable because the record does not show that the district court
selected the sentence arbitrarily, considered an impermissible factor, or failed to properly weigh the
relevant sentencing factors.
Accordingly, we affirm Visage’s sentence.
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