901 F.3d 746 (6th Cir. 2018), 17-2432, United States v. Price

Docket Nº:17-2432
Citation:901 F.3d 746
Opinion Judge:RALPH B. GUY, JR., Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Andre Lamar PRICE, Defendant-Appellant.
Attorney:Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Jennifer L. McManus, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
Judge Panel:Before: GUY, BATCHELDER, and BUSH, Circuit Judges. GUY, J., delivered the opinion of the court in which BUSH, J., joined, and BATCHELDER, J., joined in part. BATCHELDER, J. (pages 752-53), delivered a separate opinion concurring in part and dissenting in part. ALICE M. BATCHELDER, Circuit Judge, ...
Case Date:August 28, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 746

901 F.3d 746 (6th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Andre Lamar PRICE, Defendant-Appellant.

No. 17-2432

United States Court of Appeals, Sixth Circuit

August 28, 2018

Page 747

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:12-cr-00068-2— Robert J. Jonker, Chief District Judge.

ON BRIEF:

Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant.

Jennifer L. McManus, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: GUY, BATCHELDER, and BUSH, Circuit Judges.

GUY, J., delivered the opinion of the court in which BUSH, J., joined, and BATCHELDER, J., joined in part. BATCHELDER, J. (pages 752-53), delivered a separate opinion concurring in part and dissenting in part.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Page 748

The district court revoked Andre Price’s supervised release for a second time and sentenced him to 24 months of imprisonment to be followed by a 12-month term of supervised release. Price appeals his sentence, arguing that it was substantively unreasonable to have imposed a term of incarceration rather than ordering residential inpatient substance abuse treatment. Price also contends that the new term of supervised release was procedurally unreasonable because it exceeded the maximum length permitted by 18 U.S.C. § 3583(h). We agree that § 3583(h) must be interpreted to require that the maximum term of supervised release be reduced by the aggregate of all post-revocation terms of imprisonment related to the same underlying offense. There is no dispute that, under this interpretation, 10 months was the maximum term of supervised release that could follow the 24-month term of imprisonment imposed in this case. After careful review, we affirm Price’s custodial sentence, vacate the term of supervised release, and remand for the district court to impose a new term of supervised release not to exceed the maximum permitted under § 3583(h).

I.

Andre Price pleaded guilty to one of four counts of bank robbery and was sentenced to 60 months of imprisonment to be followed by three years of supervised release. Price completed that custodial sentence and began his first term of supervised release on July 21, 2017. Two urine samples collected the next week tested positive for cocaine, and Price admitted that he had used crack cocaine over the weekend of July 22, 2017. At the recommendation of the probation officer, however, the district court took no action with respect to those violations of the conditions of his supervised release.

But when Price tested positive for cocaine use twice more on July 28 and August 7, the probation officer recommended revocation in a petition filed on August 11, 2017. During the first revocation hearing, Price admitted using cocaine prior to those dates and pleaded guilty to violating two conditions of his supervised release. Through counsel, Price asked that he be allowed to participate in inpatient substance abuse treatment in lieu of incarceration. In support of that request, Price submitted a letter from the intake coordinator for the Salvation Army Adult Rehabilitation Center in Grand Rapids, Michigan, which stated that Price would be a "good fit" for their inpatient alcohol and drug rehabilitation program. Given Price’s admitted "Grade B" violation and his criminal history category of VI, his applicable policy-statement Guidelines range was 21 to 24 months of imprisonment. See U.S.S.G. § 7B1.4 (Policy Statement).1 The district court considered alternative sentencing options, revoked Price’s supervised release,

Page 749

and imposed a substantially below-Guidelines sentence of two months of imprisonment to be followed by a 34-month term of supervised release. The conditions of Price’s supervised release were the same as before, with an additional requirement that Price spend six months in a halfway house. Price served that custodial sentence and began his new term of supervised release on October 17, 2017.

Two weeks later, on October 29 and 30, Price violated the conditions of his supervised release by: (1) being absent from the halfway house overnight without permission; (2) possessing crack cocaine in violation of state law; and (3) using crack cocaine in violation of the terms of his supervised release. Although drug testing was not performed, Price admitted all three violations during the revocation hearing held November 13, 2017. Price again argued for substance abuse treatment in lieu of incarceration.

The record confirms that the district court considered that to be an option but denied the request as inappropriate under the circumstances. Having admitted a "Grade B" violation, the applicable policy-statement Guidelines range was again 21 to 24 months of imprisonment. After considering the relevant sentencing factors, the district court revoked Price’s supervised release for a second time and imposed the sentence that is at issue in this appeal: a 24-month term of imprisonment to be followed by a new 12-month term of supervised release. The district court imposed the same conditions of supervised release as before— including six months in a halfway house— but added the possibility that Price could substitute inpatient substance abuse treatment for time in the halfway house "on a month-for-month basis." Defense counsel indicated that there were no other objections, and this appeal followed.

II.

Sentences imposed following the revocation of supervised release are reviewed for procedural and substantive reasonableness under the same abuse-of-discretion standard that applies to post-conviction sentences. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). A district court commits significant procedural error by "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." Id. at 579 (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). "A sentence is substantively unreasonable if the district court ‘selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.’ " United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009) (citation omitted). A rebuttable presumption of substantive reasonableness applies to sentences imposed within a properly calculated Guidelines range. Id.

Although a defendant need not raise a substantive reasonableness claim in the district court to preserve it for appeal, a claim of procedural error is reviewed for plain error if the defendant fails to object when properly invited at the conclusion of the sentencing hearing. See

United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (discussing United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004) ). Because there was no objection to the length of the supervised release term, Price must demonstrate (1) an error, (2) that was obvious or clear, (3) that affected his substantial rights, and (4) that "seriously affected the fairness, integrity, or

Page 750

public reputation of the judicial proceedings." United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (quoting United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001) ).

A. Procedural Unreasonableness

"When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment." 18 U.S.C. § 3583(h). Moreover, "[t]he length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release ." Id. (emphasis added). We have held that this last clause plainly mandates that the court subtract "the...

To continue reading

FREE SIGN UP