U.S. v. Polihonki

• Decision Date: 24 September 2008
• Docket Number: No. 07-2106.,07-2106.
• Citation: 543 F.3d 318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Zachariah POLIHONKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

543 F.3d 318

UNITED STATES of America, Plaintiff-Appellee, v. Zachariah POLIHONKI, Defendant-Appellant.

No. 07-2106.

United States Court of Appeals, Sixth Circuit.

Submitted: September 15, 2008.

Decided and Filed: September 24, 2008.

ON BRIEF: David L. Kaczor, Ray S. Kent, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Phillip J. Green, Christopher M. O'Connor, Assistant United States Attorneys, Grand Rapids, Michigan, for Appellee.

Before: GILMAN, KETHLEDGE, and

ALARCÓN, Circuit Judges.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Zachariah Polihonki pled guilty in 2005 to federal conspiracy charges involving cocaine. He was subsequently sentenced to 18 months in prison, to be followed by 3 years of supervised release. After serving his prison sentence, Polihonki was twice reported for violating the conditions of his supervised release. On the second occasion, the district court revoked his supervised release and sentenced him to 6 months in prison, to be followed by a new supervised-release term of 30 months.

Polihonki served the 6-month prison term and, in July of 2007, began his second term of supervised release. But he violated its conditions twice within 2 months after the term had commenced, causing the district court to once again revoke his supervised release. This time Polihonki was sentenced to 13 months in prison, a term that is 2 months longer than the applicable U.S. Sentencing Guidelines range of 5 to 11 months' imprisonment. Polihonki argues on appeal that the sentence is both procedurally and substantively unreasonable. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

The parties do not dispute the relevant facts. In May of 2005, Polihonki (who was then less than 21 years of age) pled guilty to conspiring to (1) distribute cocaine, and (2) possess cocaine with the intent to distribute the drug. These offenses, in violation of 18 U.S.C. §§ 841 and 846, carry a prison term of up to 20 years. He was sentenced in September of 2005 to 18 months in prison and 3 years of supervised release, in addition to monetary fines not at issue in this appeal.

Polihonki's term of supervised release commenced in March of 2006. Five months later, his probation officer reported that Polihonki had violated the conditions of his supervised release by failing to attend a group counseling meeting and missing three urinalysis test dates. The district court shortly thereafter entered an order modifying Polihonki's supervised release to require 40 hours of community service, in addition to the original conditions imposed on him.

In January of 2007, Polihonki again violated the conditions of his supervised release, this time by missing a urinalysis test, not appearing for both a mental-health assessment and a counseling meeting, failing to complete his court-ordered community-service hours, failing to pay the monetary penalties imposed as part of his sentence, and failing to report his encounter with the police that occurred when he was cited for being a minor in possession of alcohol. Polihonki admitted the foregoing violations. The district court subsequently revoked his term of supervised release and sentenced him to 6 months in prison, with the recommendation that Polihonki receive both alcohol-abuse and mental-health counseling. It also imposed a new, 30-month term of supervised release to follow completion of the 6-month prison term. The new term of supervised release commenced on July 1, 2007.

In August of 2007, Polihonki (now more than 21 years old) was reported for two supervised-release violations. He admitted to the district court that he drank alcohol on July 19, 2007 and again on August 16, 2007, in violation of a supervised-release condition that prohibited him from drinking alcohol. At his revocation hearing before the district court, Polihonki pled guilty to those violations.

Prior to the revocation hearing, a probation officer submitted to the district court a Supervised Release Violation Report (SRVR), which recommended revocation of Polihonki's term of supervised release and a new term of imprisonment. Polihonki's Guidelines range was calculated to be 5 to 11 months of imprisonment, with a recommended sentence of 11 months. The district court revoked Polihonki's supervised release pursuant to 18 U.S.C. § 3583(e)(3) and sentenced him to 13 months in prison, with orders for alcohol-abuse and mental-health counseling, to be followed by 22 months of supervised release accompanied by ongoing alcohol-abuse treatment. Polihonki filed a timely appeal of his sentence.

II. ANALYSIS

A. Standard of review

The district court may revoke a defendant's term of supervised release and require the defendant to serve a new term of imprisonment pursuant to 18 U.S.C. § 3583(e). In this circuit, "[s]entences imposed following revocation of supervised release are to be reviewed under the same abuse of discretion standard that we apply to sentences imposed following conviction." United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007). The district court's sentencing determination is reviewed "under a deferential abuse-of-discretion standard" for reasonableness, which has both a procedural and a substantive component. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 591, 598, 169 L.Ed.2d 445 (2007); see also United States v. Carter, 510 F.3d 593, 600 (6th Cir.2007).

We must first ensure that the district court committed no procedural error in sentencing the defendant. Id. at 597; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). A district court necessarily abuses its sentencing discretion if it

commit[s][a] significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.

Gall, 128 S.Ct. at 597.

If the district court's sentencing decision is procedurally sound, we must "then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard[,] ... tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Id. This court applies a presumption of substantive reasonableness in reviewing sentences that are within the Guidelines range. United States v. Wilms, 495 F.3d 277, 280-81 (6th Cir.2007). We may not, however, apply "a presumption of unreasonableness" to sentences that fall outside of the Guidelines range. Gall, 128 S.Ct. at 597. If the sentence is outside of the Guidelines range, we must instead give "due deference" to the district court's decision that the § 3553(a) factors justify the variance. Id. "The fact that [this court] might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Id.

Polihonki did not raise any objections to his 13-month sentence at the conclusion of his revocation hearing, although he was invited to do so by the district court. Because he failed to object, any errors that he now alleges regarding the length of his sentence must be reviewed under the plain-error standard. See United States v. Lalonde, 509 F.3d 750, 757 (6th Cir.2007) (citing United States v. Vonn, 535 U.S. 55, 66, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) ("A defendant's right to review of error he let pass in silence depends upon the plain error rule.")). "The defendant bears the burden of proof on plain error review" and, in order to prevail, he

must show that there is (1) error, (2) that is plain, and (3) that affects [his] substantial rights. If all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or reputation of judicial proceedings.

Id. at 757-58.

B. Procedural reasonableness

Polihonki argues that his sentence is procedurally unreasonable because the district court failed to adequately explain the basis for the sentence imposed. He specifically cites the court's failure to (1) refer to the recommended Guidelines range set forth in Polihonki's SRVR, and (2) address his argument that he had been employed and had a job waiting for him.

1. Consideration of the § 3553(a) factors and the Guidelines range

"This court has held that in sentencing for revocation of supervised release, district courts must sentence in a manner that reflects consideration of certain factors listed in 18 U.S.C. § 3553." United States v. Johnson, 403 F.3d 813, 815 (6th Cir.2005) (internal quotation marks omitted); see also United States v. Washington, 147 F.3d 490, 491 (6th Cir. 1998) (explaining that Chapter 7 of the Guidelines applies to sentences imposed following a supervised-release revocation, but that both the policy statements contained therein and the corresponding sentencing range "are merely advisory and do not bind the district court"); § 3583(e) (providing that the district court may revoke a term of supervised release upon consideration of the factors set forth in § 3553(a)). The relevant factors in this case, as in Johnson, are "the nature of the offense; the need to deter criminal conduct, to protect the public, and to provide Defendant with appropriate treatment; any guideline range for sentencing; guideline policy statements; and avoidance of unwarranted disparities." See Johnson, 403 F.3d at 815.

At Polihonki's second revocation hearing in September of 2007, the district court noted the nature of his original offenses and reminded Polihonki that they subjected him to a sentence of up to 20 years in prison. It then discussed Polihonki's repeated violations of the various conditions of his two supervised-release terms, his ongoing alcohol abuse, the...