RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0341p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-1986
v.
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Defendant-Appellant. -
KELLEY LASHELLE PEEBLES,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 08-00026-001—Robert Holmes Bell, District Judge.
Decided and Filed: November 4, 2010
Before: MARTIN and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*
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COUNSEL
ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,
Michigan, for Appellant. Daniel Y. Mekaru, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Defendant-appellant Kelley LaShelle
Peebles contends that the ten-month sentence that she received for violating the
conditions of her supervised release is unreasonable. Because the district court failed
to calculate the applicable Sentencing Guidelines range, we VACATE Peebles’s
sentence and REMAND for resentencing.
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The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 09-1986 United States v. Peebles Page 2
I. BACKGROUND
Peebles entered a guilty plea to one count of committing bank fraud in violation
of 18 U.S.C. § 1344 in the United States District Court for the District of North Dakota
on April 27, 2007. On August 31, she was sentenced to one month imprisonment
followed by three years of supervised release. After her release from prison, Peebles
spent four months in a Michigan halfway house. Jurisdiction over Peebles’s supervision
was transferred to the Western District of Michigan on October 30, 2008. Probation
Officer Stuart N. Chavis was assigned to her case.
One of the conditions of Peebles’s supervised release prohibited contact with
other felons without the permission of Officer Chavis. At some point, Peebles began a
romantic relationship with Paris Miller, a convicted felon. In October 2008, Officer
Chavis instructed Peebles that she was not allowed to have any contact with Miller. In
her required monthly reports from October 2008 through February 2009, Peebles stated,
falsely, that she had not had any contact with felons. But at a February 10, 2009 meeting
with Officer Chavis, she admitted that she had persisted in her relationship with Miller.
Peebles was pregnant at the time, and Miller was purportedly the prospective father. At
the meeting, Peebles was directed to submit a report explaining the rationale for the
condition that supervisees not associate with felons, but she never completed the report.
The pregnancy ended in a miscarriage in March 2009.
On May 19, 2009, the district court signed a warrant for Peebles’s arrest.
According to the supervised release violation report, Peebles violated ten conditions of
her supervised release between October 2008 and March 2009. The counts alleged that
Peebles: (1) failed to provide a written report to her probation officer in six different
months; (2) committed a crime by driving with a suspended license; (3) failed to report
contact with a law enforcement officer within seventy-two hours after she was arrested
for driving with a suspended license; (4) lied to her probation officer about continuing
to associate with Miller; (5) associated with a known felon by continuing to see Miller;
(6) failed to notify her probation officer within seventy-two hours after being questioned
by a law enforcement officer during a traffic stop; (7) associated with a convicted felon
No. 09-1986 United States v. Peebles Page 3
because Miller was present at the traffic stop; (8) refused to comply with her probation
officer’s direction to submit a one-page report explaining the no contact with felons rule;
(9) refused to attend a March 2009 moral reconation therapy session as directed by her
probation officer; and (10) failed to make any payments toward a special assessment and
fine assessed against her.
Peebles was arrested on July 20, 2009. She was in the early stages of a second
pregnancy, and Miller was again the prospective father. Peebles entered a guilty plea
to each of the ten violations at a July 29, 2009 hearing. The district court accepted the
guilty pleas to counts one and four through ten, revoked Peebles’s supervised release,
and proceeded to sentencing.
The district court did not calculate Peebles’s applicable Guidelines range, and
it is unclear what range the district court relied on in sentencing. Officer Chavis’s report
reflected a recommended Guidelines range of three to nine months. Both parties contend
that Peebles’s criminal history category was improperly calculated and her Guidelines
range should have been five to eleven months. However, an Amended Supervised
Release Violation Report indicates that the appropriate sentencing range was four to ten
months. Ultimately, however, under her actual Criminal History Category of III, the
appropriate sentencing range for a Grade B violation would have been eight to fourteen
months. U.S.S.G. § 7B1.4(a).
Peebles’s counsel argued for delayed reporting due to her “high-risk” pregnancy.
Her counsel asked the district court to suspend her custodial sentence until after the baby
was born. The prosecutor did not express opposition to the request, but the district court
concluded that Peebles’s conduct required a custodial sentence. Citing her unwillingness
to accept responsibility for her conduct, lack of truthfulness, and lack of respect for the
law and the directions of the court and her probation officer, the district court sentenced
Peebles to ten months in prison. Peebles filed a timely notice of appeal on August 4,
2009 and now contends that the sentence is unreasonable.
No. 09-1986 United States v. Peebles Page 4
II. ANALYSIS
Sentences imposed for supervised release violations are reviewed “under the
same abuse of discretion standard that we apply to sentences imposed following
conviction.” United States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009) (quoting
United States v. Bolds, 511 F.3d 568, 572–73, 578 (6th Cir. 2007)) (quotation marks
omitted). The sentence may be overturned only if it is procedurally or substantively
unreasonable. Id. (citing United States v. Houston, 529 F.3d 743, 753 (6th Cir. 2008)).
The first step in the review process is to determine, applying the abuse of
discretion standard, whether the sentence imposed by the district court is procedurally
reasonable. Bolds, 511 F.3d at 578–79. A sentence is procedurally unreasonable if the
district court fails to calculate or improperly calculates the Guidelines range, treats the
Guidelines as mandatory, fails to consider the section 3553(a) factors, selects a sentence
based on clearly erroneous facts, or fails to adequately explain the chosen sentence. Id.;
see also Gall v. United States, 552 U.S. 38, 51 (2007). The Guidelines are “the starting
point and the initial benchmark” for all sentencing decisions, Gall, 522 U.S. at 49,
including sentences imposed for supervised release violations, Bolds, 511 F.3d at 579.
We have repeatedly emphasized that the first step of reasonableness review is to “ensure
that the district court ‘correctly calculat[ed] the applicable Guidelines range.’” Id.
(quoting Gall, 522 U.S. at 49) (alterations in original); see also United States v. Grams,
566 F.3d 683, 686 (6th Cir. 2009) (concluding that the district judge “should have stated
in open court” whether he adopted the Guidelines range calculated by the probation
department in the presentence report); United States v. Blackie, 548 F.3d 305, 401–03
(6th Cir. 2009) (concluding that a sentence is procedurally unreasonable where it is
impossible to determine from the sentencing transcript what the calculated Guidelines
range was and whether the sentence was within the range).
Here, the transcript of the sentencing hearing does not reflect that the district
court addressed the Guidelines range at all. The applicable Guidelines range was not
discussed during the hearing by either attorney or by the judge. Therefore, it is
impossible to determine with certainty what sentencing range the district court relied on,
No. 09-1986 United States v. Peebles Page 5
and whether the district court meant to impose a sentence within or above that range.
Because the district court did not calculate the appropriate Guidelines range, Peebles’s
sentence is procedurally unreasonable. Thus, we vacate Peebles’s sentence and remand
the case to the district court for resentencing. We decline to address Peebles’s argument
that her sentence is also procedurally unreasonable because the district court failed to
address her request for delayed reporting in order to have her baby, as that issue is
clearly now moot.
III. CONCLUSION
Because the district court did not address the applicable Guidelines range, we
cannot determine whether it relied on the correct range or whether the sentence imposed
is within or above that range. We therefore VACATE Peebles’s sentence and
REMAND for resentencing.