United States v. Sears

• Decision Date: 26 April 2022
• Docket Number: 21-3545
• Citation: 32 F.4th 569
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eric SEARS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

32 F.4th 569

UNITED STATES of America, Plaintiff-Appellee,

v.Eric SEARS, Defendant-Appellant.

No. 21-3545

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 26, 2022

ON BRIEF: Marisa L. Serrat, Cleveland, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: SILER, GIBBONS, and STRANCH, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge.

The district court revoked Eric Sears's supervised release for a second time and sentenced him to a consecutive term of eighteen months of imprisonment. Sears appeals his sentence, arguing that it was procedurally unreasonable because the district court miscalculated his supervised release Guidelines range by exceeding the maximum length permitted by 18 U.S.C. § 3583(e)(3). He also contends that the new term of supervised release is substantively unreasonable because of its consecutive nature. We hold that under § 3583(e)(3), prior time served for violations of supervised release is not credited toward and does not limit the statutory maximum that a court may impose for subsequent violations of supervised release. Furthermore, the district court articulated its balancing of the relevant sentencing factors and imposed a sentence at the low-end of Sears's Guidelines range. Sears's sentence was procedurally and substantively reasonable, and accordingly we affirm.

I

On May 18, 2016, Sears was sentenced in the Western District of New York to fifteen months’ imprisonment followed by three years of supervised release after pleading guilty to Conspiracy to Possess with Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Sears's supervised release began on June 8, 2016, but was revoked on May 22, 2017, when he violated the terms of his release by possessing a controlled substance. Sears was sentenced to eight months in custody followed by twenty-eight months of supervised release. As he was serving this revocation sentence, he was convicted of Sexual Battery in state court in Ohio from an offense that occurred in 1996. Sears was sentenced to one year of incarceration followed by a term of parole. On November 19, 2018, Sears was released from state custody and began his parole in Ohio.

On July 24, 2020, law enforcement officers executed a search warrant at Sears's residence and found multiple bags of suspected crack cocaine, a bag of suspected heroin, and loaded firearms. Sears was arrested and placed into custody. In September 2020, an indictment was filed in the Northern District of Ohio charging Sears with two counts of possession of cocaine with intent to distribute; one count of possession of heroin and fentanyl with intent to distribute; one count of being a felon in possession of a firearm and ammunition; and one count of possession of a firearm in furtherance of drug trafficking crimes. Sears pled guilty to all of the counts, except the felon in possession of a firearm charge, which the government agreed to dismiss. The parties agreed to recommend that the district court impose a sentence within Sears's Guidelines range. With an offense level of 17 and a criminal history category of VI, Sears's combined adjusted Guidelines range on these charges was 111 to 123 months.

Because of Sears's July arrest and his indictment in the Northern District of Ohio, a supervised release violation warrant was issued by the Western District of New York. In December 2020, Sears's supervised release case was transferred from the Western District of New York to the Northern District of Ohio. Probation submitted a Violation Report outlining two violations of Sears's supervised release: first, a "New Law Violation" stemming from his July arrest and charges, and second, a violation for "Failure to Notify the Probation Officer of a Change of Address." The Guidelines range for revocation of Sears's supervised release was eighteen to twenty-four months’ imprisonment.

At a combined supervised release violation hearing and sentencing in June 2021, the district court concluded that Sears violated the term of his supervised release by committing the new law violation and failing to notify probation of his changed address. The government requested a within-Guidelines sentence for both Sears's supervised release violations and criminal offenses, to run consecutively. Sears requested a concurrent sentence, arguing for the court to consider his inability to work during the pandemic or receive government assistance as a mitigating circumstance. Sears also noted that he "immediately admitted and acknowledged his wrongdoing" as officers executed the search warrant, and he did not try "to hide his conduct or make excuses." DE 19, Tr., at Page ID 108.

The court discussed the 18 U.S.C. § 3553(a) factors and imposed eighteen months’ imprisonment, to be served consecutively to the 111-month sentence imposed on the new charges in case 1:20-CR-471 for a total of 129 months. The court noted that Sears "has tried not to make any excuses," but observed that "the pandemic hit all of us" and "there are lots of ways to have made a living ... without slinging poison in our community." Id. at 108–10. The court explained:

And I will impose, Mr. Sears, the low end, 18 months, and I will impose it consecutively to, in addition to the 111 months imposed for Counts 1, 2, 3 and 5.

And I do it for this reason: You've not given me a single reason today that you didn't have before today, before the first of the many charges that you've pled guilty to by way of the indictment, all of which occurred in July of 2020, not to break the law.

What you've told me today about your parents being old, they were old then. Your children existed then. You've broken the law and suffered consequences then, but yet you did it again. Eighteen additional months. And we'll pay the true price for that because we'll take care of you.

But I want you to respect the law. And the only way I can do it, sir, is to make an example of you based on your own individual conduct.

So 18 months consecutive to the 111. That is 129 months total.

DE 19, Tr., at Page ID 122–23.

After imposing the sentence, the court asked Sears to "please tell me first what I may have missed." Id. at 132. The court granted Sears's request that the court recommend him to a specific facility, then asked "What else before your objections[?]" Id. at 133. Sears then objected to the consecutive nature of the supervised release violation sentence. The court acknowledged the objection and referenced the Sentencing Guidelines policy statement in 7B1.3(f), which suggests that terms of imprisonment imposed upon the revocation of supervised release shall be ordered to be served consecutively. The court accordingly overruled the objection.

On appeal, Sears argues the district court erred in imposing the eighteen-month consecutive supervised release violation sentence because it is procedurally and substantively unreasonable.

II

We review criminal sentences for procedural and substantive reasonableness under an abuse-of-discretion standard. Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). "[A] sentence is procedurally reasonable where ‘the trial court follows proper procedures and gives adequate consideration to [the 18 U.S.C. § 3553(a) ] factors.’ " United States v. Perez-Rodriguez , 960 F.3d 748, 753 (6th Cir. 2020) (quoting Holguin-Hernandez v. United States , ––– U.S. ––––, 140 S. Ct. 762, 766, 206 L.Ed.2d 95 (2020) ). A sentence is substantively reasonable when the length of the sentence conforms with the goals of § 3553(a) to impose a sentence that is sufficient but not greater than necessary to serve the purposes of sentencing. Id. (citing Holguin-Hernandez , 140 S. Ct. at 766 ). "A claim that a sentence is substantively unreasonable is ... a complaint that the court placed too much weight on some of the § 3553(a) factors and too little on others ...." United States v. Rayyan , 885 F.3d 436, 442 (6th Cir. 2018). Because the district court's weighing of the § 3553(a) factors "is a matter of reasoned discretion, not math," we are highly deferential in our review. Id. When a sentence is within the range recommended by the Sentencing Guidelines, "we presume the sentence was reasonable." United States v. West , 962 F.3d 183, 187 (6th Cir. 2020) (citing United States v. Vonner , 516 F.3d 382, 389 (6th Cir. 2008) (en banc)). "The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall , 552 U.S. at 51, 128 S.Ct. 586.

Although we ordinarily review claims of procedural and substantive unreasonableness for an abuse of discretion, a procedural claim that was not raised as an objection before the district court is subject only to plain error review. West , 962 F.3d at 191. To satisfy plain error review, Sears must show "(1) an error, (2) that was obvious or clear, (3) that affected his substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Price , 901 F.3d 746, 749–50 (6th Cir. 2018) (internal quotation marks and citation omitted). Such an error is found "only in exceptional circumstances," such as "where the error is so plain that the trial judge was derelict in countenancing it." Vonner , 516 F.3d at 386 (cleaned up).

A

Sears first argues that the district court improperly calculated his supervised release Guidelines range. He asserts that the statutory maximum sentence for this violation should have been reduced by the time he already served for his 2017 violation of supervised release—for which he was sentenced to eight months in custody and twenty-eight months of supervised release. Sears argues the statutory maximum sentence of twenty-four months should have been reduced by eight months for a statutory maximum of sixteen months’ imprisonment—thus rendering the...