U.S. v. Yopp, 05-1807.

Decision Date19 July 2006
Docket NumberNo. 05-1807.,05-1807.
Citation453 F.3d 770
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gregory YOPP, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Loren E. Gross, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Susan E. Gillooly, Assistant United States Attorney, Detroit, Michigan, for Appellee.

ON BRIEF:

Andrew N. Wise, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Susan E. Gillooly, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: MARTIN, MOORE, and ROGERS, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which MOORE, J., joined. ROGERS, J. (p. 774), delivered a separate dissenting opinion.

MARTIN, JR., Circuit Judge.

The defendant, Gregory Yopp, pled guilty to violating the terms of his supervised release. The district court sentenced Yopp to the statutory maximum of twenty-four months imprisonment in order to force Yopp to participate in the Federal Bureau of Prisons 500 hour drug treatment program. Yopp now appeals, arguing that his sentence is unreasonable because the district court did not consider the policy statements in Chapter Seven of the Sentencing Guidelines, that the district court failed to sufficiently consider the 18 U.S.C. § 3553(a) factors, and that the sentence was greater than necessary to provide Yopp with treatment.1 For the following reasons, we VACATE Yopp's sentence and REMAND for resentencing.

I.

Having just served twenty-four months imprisonment for distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1), Yopp unwisely and almost immediately began violating the terms of his supervised release. These violations included failed drug tests, missed counseling sessions, and missed testing appointments. The violations were numerous. Yopp had also been referred to the Lincoln Behavioral Center where he was diagnosed with paranoid schizophrenia and ordered to report twice per month. He stopped doing this too. Finally, Yopp failed to report to his probation officer three times. As a result of these violations, the district court issued a warrant for Yopp's arrest. A search incident to Yopp's arrest revealed a knife in his waistband and Yopp was given an instant drug test which returned positive for marijuana, cocaine, and opiates.

Eventually a supervised release hearing was held where Yopp pled guilty to most of the charges. Before imposing sentence, the district court stated that allowing Yopp to remain free or in a halfway house would be unlikely to help Yopp, but that enrollment in the prison drug program could "turn him around." The district court thoughtfully continued the sentencing hearing for two weeks in order to determine Yopp's eligibility for the 500 hour program.

Venturing its opinion, the probation office submitted a report suggesting that Yopp "would benefit from a 500 Hour Residential Drug Treatment Program that addresses both his substance abuse and mental health needs." The probation office determined that the program lasts "nine months, however, it may take three months to designate and screen the needs of the individual." The probation office then recommended a sentence of twenty-four months incarceration, which the district court adopted.2

Eager to challenge the sentence, defense counsel attempted to argue that a twelve-month sentence would be sufficient to allow Yopp to participate in the 500 hour program. The district court stated that "there's no way it can be done in 12 months" and refused to decrease the twenty-four month sentence. Yopp now appeals, arguing that his sentence is unreasonable because the district court did not consider the Chapter Seven policy statements, that the district court did not adequately consider the section 3553(a) factors, and that the sentence was greater than necessary to provide Yopp with drug and mental health treatment.

II.

Last year the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which, among other things, held that we now review sentences for reasonableness. See also United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005) (holding that "we may conclude that a sentence is unreasonable when the district judge fails to `consider' the applicable guidelines range or neglects to `consider' the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such consideration"). Prior to Booker, however, in United States v. Washington, we held that a defendant could appeal a sentence that "was imposed for an offense for which there is no sentencing guideline [i.e., a revocation sentence] and is plainly unreasonable." 147 F.3d 490, 491 (6th Cir.1998) (citing 18 U.S.C. § 3742(a)(4)) (emphasis added); see also United States v. Carr, 421 F.3d 425, 429 (6th Cir.2005) (reviewing a sentence imposed after revocation of supervised release to see "if it shows consideration of the relevant statutory factors and is not plainly unreasonable"). Booker excised section 3742(e) and replaced it with the reasonableness standard. Since that time, other circuits have adopted the new reasonableness standard for sentences imposed after revocation of supervised release, see, e.g., United States v. Fleming, 397 F.3d 95, 99 (2d Cir.2005); United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005), or held that the two standards are the same, see, e.g., United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005). On the facts of the case before us today, we believe that the sentence must be vacated under either standard.

Viewing the transcripts and record, there is no evidence of the district court's consideration of the Chapter Seven policy statements.3 For this reason, the sentence must be vacated. Furthermore, the twenty-four month sentence, in our opinion, is substantively plainly unreasonable because it is "greater than necessary to comply with the purposes set forth in [§ 3553(a)(2)]." 18 U.S.C. § 3553(a).

"Even though policy statements contained in Chapter Seven of the Sentencing Guidelines are merely advisory, a court must still consider them prior to imposing sentence for revocation of supervised release." Carr, 421 F.3d at 431 (internal quotations omitted). Pursuant to the policy statements, Yopp committed Grade C violations of his supervised release because none of his violations constituted a federal, state, or local offense punishable by a term of imprisonment exceeding one year. U.S.S.G. § 7B1.1. With a Grade C violation and a criminal history category of I, Yopp's recommended sentence was three to nine months imprisonment.

The district court, however, did not mention the policy statements or the advisory guideline range at either of the two revocation hearings. We have, in the past, presumed that the district court considered the policy statements where the district court reviewed a probation report that contained the recommended sentencing range. See United States v. McClellan, 164 F.3d 308, 310 (6th Cir.1999). Yopp's report, however, did not contain any such reference, and the presumption would be inappropriate under these circumstances. Thus, in the absence of this evidence in the record, the sentence must be vacated and the case remanded for resentencing.

Hopeless is the government's counter-argument — that this Court can infer that the district court considered the policy statements because the district court stated that it had "spent considerable time discussing" the case with the probation officer. As stated above, the report contains no reference to the policy statements and thus there is no evidence that the probation officer considered them. If there is no evidence that the probation officer considered the statements, we cannot infer that the district court considered them from the fact that the court discussed the case with the probation officer.

As we conclude that the district court erred by not considering the policy statements, we need not reach the question of whether the sentence was unreasonable in light of the statutory factors. Nevertheless, because we believe that the sentence is also substantively unreasonable, we therefore address the argument.

Many times we have emphasized that a district court's mandate is to "impose a sentence sufficient, but not greater than necessary to comply with the purposes set forth in [§ 3553(a)(2)]." 18 U.S.C. § 3553(a). In that vein, we have also emphasized that reasonableness is the appellate standard of review. See United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2005). In order to determine whether a district court has complied with the statute, we have stated that there must be "sufficient evidence in the record to affirmatively demonstrate the court's consideration" of the relevant section 3553(a) factors. United States v. McBride, 434 F.3d 470, 476 n. 3 (6th Cir....

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