United States v. Johnson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0117p.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. 09-4293
v.
,
>
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Defendant-Appellant. -
JAMES JOHNSON,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 06-00099-002—S. Arthur Spiegel, District Judge.
Decided and Filed: May 11, 2011
Before: MOORE and WHITE, Circuit Judges; VARLAN, District Judge.*

_________________

COUNSEL
ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,
Ohio, for Appellant. Anthony Springer, ASSISTANT UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellee.
_________________

OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. James Johnson was convicted of
conspiracy to commit bank fraud and sentenced by the district court to one day of
incarceration and three years of supervised release. His supervised release was revoked,
however, after he was convicted in state court of aggravated robbery and voluntary
manslaughter. He also admitted to possessing and discharging a firearm during the

*
The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.

1
No. 09-4293 United States v. Johnson Page 2

commission of the robbery. When imposing sentence upon revocation of supervised
release, the district court sentenced Johnson to thirty-six months of imprisonment, which
constituted a fifteen-month upward departure from the advisory Guidelines range of
fifteen to twenty-one months. The district court also ordered that the sentence run
consecutively to Johnson’s twelve-year sentence for his state convictions.

Johnson appeals on the grounds that the sentence imposed by the district court
upon revocation of his supervised release was both procedurally and substantively
unreasonable. Reviewing for procedural reasonableness, we conclude that the district
court properly calculated the Guidelines range, appropriately considered the applicable
sentencing factors and the arguments of the parties, and provided an adequate
explanation for the sentence imposed, including a specific reason for the upward
departure. We also conclude that, under the totality of the circumstances, Johnson’s
sentence is substantively reasonable. Therefore, we AFFIRM the sentence imposed by
the district court.

I. BACKGROUND

On November 9, 2006, Johnson entered a plea of guilty pursuant to a plea
agreement to one count of conspiring to commit bank fraud. The plea agreement
stipulated that Johnson conspired with two others—Travelle Grigsby and Frances
Roberson—to commit bank fraud by producing and using counterfeit checks. At the
direction of Grigsby, the leader of the conspiracy, Roberson would produce the
counterfeit checks, and the three co-conspirators would go together to stores such as
Lowe’s and Home Depot to make large purchases using the checks.

Although the Guidelines range for the bank-fraud conviction was eighteen to
twenty-four months, the district court departed downward and sentenced Johnson to only
one day of imprisonment, to be followed by thirty-six months of supervised release. The
supervised-release sentence included three months to be served in a halfway house and
six months of home confinement. Johnson served his one-day sentence, and, on March
27, 2007, began his term of supervised release. Initially, Johnson’s adjustment to
No. 09-4293 United States v. Johnson Page 3

supervised release was satisfactory— he successfully completed his halfway-house and
home-confinement terms, and, in December 2007, he completed a substance-abuse
program. He was also employed full-time until November 2007 and pursuing a degree
in engineering at “Cincinnati State.”

Johnson’s supervised release was revoked, however, in September 2009 after he
participated in an aggravated robbery that resulted in the shooting death of the robbery
victim. On June 20, 2008, two days after the incident, Johnson was arrested and charged
with aggravated murder. While in the custody of the Cincinnati Police Department,
Johnson admitted to possessing and discharging a .40-caliber Smith & Wesson
semiautomatic handgun during the commission of the robbery. After Johnson’s arrest,
the grand jury of the Hamilton County Court of Common Pleas issued a three-count
indictment against him: Count One charged him with aggravated murder with two
specifications, Count Two charged him with voluntary manslaughter with two
specifications, and Count Three charged him with aggravated robbery with one
specification. On January 29, 2009, Johnson entered a plea of guilty to voluntary
manslaughter with a firearm specification, and aggravated robbery with a firearm
specification. Johnson was sentenced on February 25, 2009, to a total of twelve years
in the Ohio Department of Corrections.

On June 24, 2008, based on Johnson’s arrest and his admission to possessing and
discharging a firearm, the U.S. Probation Department filed a petition for a warrant and
revocation of supervised release. Following Johnson’s state convictions, a supervised-
release-violation report was prepared alleging that Johnson violated two mandatory
conditions of his federal supervised release: 1) the condition to “not commit another
federal, state, or local crime,” violated by virtue of his state convictions, and 2) the
condition to “not possess a firearm or destructive device,” violated by virtue of his
admission to possessing and discharging a handgun during the robbery. Supervised
Release Violation Report (“SRVR”) at ¶¶ 1–6. The report classified the violation
conduct as Grade A and Johnson’s criminal-history category as level II. Based on these
factors, Johnson’s advisory Guidelines range was calculated to be fifteen to twenty-one
No. 09-4293 United States v. Johnson Page 4

months of imprisonment. The report also noted that, pursuant to 18 U.S.C. § 3583(e)(3),
Johnson could be sentenced to no more than three years in prison upon revocation of
supervised release because his original federal offense of conviction was a Class B
felony. See 18 U.S.C. § 3583(e)(3). Additionally, the report advised that, pursuant to
Application Note 4 of the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 7B1.4
(2009), because Johnson’s original sentence was the result of a downward departure, an
upward departure for the revocation sentence may be warranted. It also noted that,
pursuant to U.S.S.G. § 7B1.3(f), any sentence imposed upon revocation of supervised
release should run consecutively to any other sentence of imprisonment. In light of the
relevant policy statements and the nature of Johnson’s violations, the report
recommended that Johnson be sentenced to thirty-six months of imprisonment, the
statutory maximum, and that the sentence run consecutively to his state sentence.

At his hearing before the district court, Johnson did not challenge any of the facts
in the SRVR and admitted to violating the conditions of his supervised release. When
the court asked whether Johnson wished to make a statement or present any information,
Johnson, through counsel, requested a sentence within the fifteen to twenty-one months
Guidelines range, to run concurrently with his state sentence. Johnson argued that a
concurrent, Guidelines-range sentence was appropriate because of his low criminal-
history category and the efforts he made on supervised release to better himself. Johnson
also noted that his underlying federal conviction did not involve firearms or violence,
but was a fraud-related crime for which he received a four-level reduction for playing
a minimal role in the offense. In light of these considerations, he argued that additional
punishment beyond his twelve-year sentence for his state offenses was unnecessary.
Finally, Johnson noted that he had significant community and family support, and
presented two of his cousins and his grandmother to speak on his behalf.

When Johnson’s counsel described the circumstances of Johnson’s underlying
fraud offense, and the reduction he received for his minimal role, the district court
responded, “You know, he didn’t seem to learn from his experience, did he?” Sent. Tr.
No. 09-4293 United States v. Johnson Page 5

at 6. Prior to imposing sentence, the district court explained what it considered to be the
pertinent circumstances:

And you understand the role of the judge is to, in this case, he got a break
when he got sentenced to here and he was under certain conditions, and
the conditions that as soon as the pressure was off, he lost out at school
or whatever reason, he committed the crime for which he was convicted
in state court and for which is a violation of his supervised release over
here.

Id. at 10–11. The court also discussed its responsibility at sentencing:

And the sentence that we impose has got to be fair and reasonable under
the circumstances, no more than necessary. And about the only thing I
can do, as I see in this case, is this young man didn’t learn. He had his
chance, and he commits a violent crime like this. I have a responsibility
to impose a sentence that I think is appropriate under the circumstances.

Id. at 11. Johnson himself then addressed the court in mitigation and claimed that he was
not a violent person but rather “just made a few wrong choices in life.” Id. at 13. The
court responded, “Well, one of the choices was that you had a weapon. You knew you
were not even supposed to have a weapon, much less use one.” Id. The court then
commended Johnson for having been in school, but stated that he showed poor judgment
though his involvement in a violent robbery.

After Johnson presented factors in mitigation, the government took the position
that, because of the severity of the crimes underlying the violation, an upward departure
from the fifteen to twenty-one month Guidelines range was warranted. Concurring with
the SRVR, the government recommended the imposition of a thirty-six-month term, to
run consecutively to Johnson’s state sentence. The district court adopted the position of
the government and probation department and imposed a consecutive thirty-six-month
term of imprisonment. The court also recommended that Johnson be designated to an
institution that will “give him the maximum opportunity to access vocational training.”
Sent. Tr. at 15.

When Johnson objected to the upward departure and consecutive sentence, the
district court responded:
No. 09-4293 United States v. Johnson Page 6

You raised those objections before. . . . I recognize I have the discretion
to do pretty much everything I’ve done here. And I have the discretion
to make the sentence run concurrent or consecutive. And based on the
facts of the situation as detailed by the U.S. Attorney as well as by the
pretrial statement that I’ve reviewed, I believe that the sentence that I’ve
imposed reflects the seriousness of his offense in violating his supervised
release in the fashion that he did. I hope it will promote respect for the
law; obviously he didn’t have any at the time that he became involved.

Id. at 16. After considering the § 3553(a) factors, the district court concluded that,
“finally, since I think the sentence is within the guidelines, it is proportional with other
sentences that are imposed in similar situations.” Id. at 17. No additional objections
were noted. Johnson timely appealed.

II. ANALYSIS

A. Standard of Review

We review for abuse of discretion the sentence imposed by a district court upon
revocation of supervised release. United States v. Polihonki, 543 F.3d 318, 322 (6th Cir.
2008). In reviewing for procedural reasonableness, a district court abuses its 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 v. United States, 552 U.S. 38, 51 (2007).

In reviewing for substantive reasonableness, we must consider the sentence
imposed in light of “the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. For sentences within the Guidelines range, we
may apply a rebuttable presumption of reasonableness; but we may not apply a
presumption of unreasonableness to sentences outside the Guidelines range. Id.; United
States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). “[We] may consider the extent of the
deviation,” when reviewing for substantive reasonableness, “but [we] must give due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify
No. 09-4293 United States v. Johnson Page 7

the extent of the variance.” Gall, 552 U.S. at 51. “The fact that [we] might reasonably
have concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.” Id.

B. Procedural Reasonableness

1. Guideline Range

When reviewing a sentence for procedural reasonableness, “[f]irst, we must
ensure that the district court ‘correctly calculate[ed] the applicable Guidelines range’”
because it is “‘the starting point and initial benchmark’ of its sentencing analysis.”
Bolds, 511 F.3d at 579 (second alteration in original) (quoting Gall, 552 U.S. at 49).
Johnson notes that, in response to defense counsel’s objections to the upward departure,
the district court remarked that “the sentence is within the guidelines, it is proportional
with other sentences that are imposed in similar situations.” Sent Tr. at 17. Johnson
interprets this comment to mean that “the district court imposed a 36 month sentence . . .
based on an erroneous understanding that the 36 month sentence was actually within the
Guidelines range.” Appellant Br. at 11.

Johnson’s argument, however, is belied by the record. The district court did not
say that it had imposed a sentence within the Guidelines range, but rather that the
sentence was within the Guidelines. Significantly, the relevant policy statement in the
Guidelines does provide for an upward departure under these circumstances:
Application Note 4 of U.S.S.G. § 7B1.4, as noted by the probation department in the
SRVR, states that “an upward departure” upon revocation of supervised release “may
be warranted” when, as in this case, “the original sentence was the result of a downward
departure.” The fifteen to twenty-one month advisory range, moreover, was discussed
several times during the hearing. The government and probation department both
recommended an upward departure; the district court concurred with their
recommendations and overruled defense counsel’s objections. Furthermore, the court’s
remarks were made in response to Johnson’s objection to the upward departure
specifically. Given the context of the district court’s statements, it is clear that the
No. 09-4293 United States v. Johnson Page 8

district court considered the fifteen to twenty-one month advisory Guidelines range and
departed upward deliberately.

2. Consideration of the Section 3553(a) Factors

We must next “ensure that the district judge gave ‘both parties the opportunity
to argue for whatever sentence they deem appropriate’ and then ‘considered all of the
[cross-referenced] § 3553(a) factors to determine whether they support the sentence
requested by [each] party.” Bolds, 511 F.3d at 579–80 (alteration in original) (quoting
Gall, 552 U.S. at 49). The statute governing supervised release, 18 U.S.C. § 3583(e),
requires the district court to consider a subset of the § 3553(a) factors.1 The district
court “need not explicitly reference each of the [§] 3553(a) factors” in its sentencing
determination; but there must be “sufficient evidence in the record to affirmatively
demonstrate the court’s consideration of them.” United States v. McBride, 434 F.3d 470,
475 n.3 (6th Cir. 2006).

Johnson contends that in imposing sentence, the district court failed to consider
the offense of conviction.2 The district court must indeed consider, among the other
applicable § 3553(a) factors, “the nature and circumstances of the offense” when
sentencing upon revocation of supervised release. 18 U.S.C. §§ 3553(a)(1) (emphasis
added), 3583(e). The “offense” so referenced is the original offense of conviction: the
United States Supreme Court has specifically explained that “postrevocation penalties
relate to the original offense,” rather than the violation conduct. Johnson v. United
States, 529 U.S. 694, 701 (2000) (emphasis added). Postrevocation sanctions are part
of the penalty for the original offense because “construing revocation and

1
The § 3553(a) factors cross-referenced by the supervised-release statute include: the nature and
circumstances of the offense and the history and characteristics of the defendant; the need to deter criminal
conduct; the need to protect the public; the need to provide the defendant appropriate treatment; the
pertinent Guidelines or policy statements; the need to avoid unwarranted sentencing disparities; and the
need to provide restitution to victims. See 18 U.S.C. §§ 3553(a), 3583(e).
2
Johnson’s challenge can be construed as a challenge to procedural reasonableness, even though
he presents this claim as grounds for “substantive[] unreasonable[ness].” Appellant Br. at 18, 20
(emphasis added) (citing United States v. Caver, 470 F.3d 220, 248 (6th Cir. 2006)); see United States v.
Herrera-Zuniga, 571 F.3d 568, 579 (6th Cir. 2009) (“[T]he procedural and substantive components of our
reasonableness inquiry appear to overlap.”) (internal quotation marks omitted).
No. 09-4293 United States v. Johnson Page 9

reimprisonment as punishment for the violation of the conditions of supervised release”
raises “serious constitutional questions.” Id. at 700. When the violations are criminal
and the subject of a separate prosecution, as in this case, the defendant may be placed
in double jeopardy if punished for the same conduct in both proceedings. See id. at
700–01.

The Sentencing Guidelines confirm this view. The violations of a defendant’s
term of supervised release are properly characterized as “breach[es] of trust” which may
be “sanctioned” upon revocation. U.S.S.G. Ch. 7, Pt. A. But the sanction for failing to
abide by conditions of supervised release is to be distinguished from “the imposition of
an appropriate punishment for any new criminal conduct” which may occur only
following a conviction in a separate criminal proceeding. Id. (emphasis added); see
United States v. Malone, 404 F. App’x 964, 972 (6th Cir. 2010) (Moore, J., dissenting);
United States v. Johnson, 356 F. App’x 785, 791 (6th Cir. 2009) (unpublished opinion);
United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006). Thus, 18 U.S.C. § 3583(e)
required the district court to consider, among other factors, the nature and circumstances
of Johnson’s original offense—conspiracy to commit bank fraud.

Contrary to Johnson’s claim, however, the import of the district court’s remarks
is that the court considered the original offense. In particular, when defense counsel
noted that Johnson had received a reduction in the original fraud offense for his minimal
role, the district court concluded, not that this weighed in favor of a more lenient
sentence on revocation, but rather that Johnson “didn’t seem to learn from his [first]
experience.” Sent. Tr. at 6. Again, later in the hearing, the district court noted, “this
young man didn’t learn. He had his chance, and he commits a violent crime like this,”
and explained, “I have a responsibility to impose a sentence that I think is appropriate
under the circumstances.” Id. at 11. It appears, therefore, from “sufficient evidence in
the record,” McBride, 434 F.3d at 475 n.3, that the district court considered Johnson’s
violation conduct to be a very serious breach of the trust embodied by the original
sentence—which included only one day of imprisonment due to a downward
departure—and concluded that the severity of the breach, in light of the leniency in trust
No. 09-4293 United States v. Johnson Page 10

the court had extended him, outweighed the non-violent nature of the bank fraud and
Johnson’s limited role.

Johnson also argues that his sentence was procedurally unreasonable because
“the court failed to consider or address specific mitigating factors” that he raised at
sentencing. Appellant Br. at 12. In particular, Johnson contends that he presented the
following mitigating factors in support of a concurrent, within-Guidelines sentence, and
that the district court failed to address any of them:

(1) [Johnson] was punished by the state court 12 years for the conduct
underlying the supervised release violation, (2) [his] young age, (3) his
compliance with the terms of supervised release, (4) his pursuit of a
degree at college, (5) his relatively low criminal history, (6) [his] minor
and limited role in the offense of conviction, (7) that the offense of
conviction did not involve violence, and (8) that a concurrent Guidelines
sentence was sufficient punishment for the offense.

Appellant Br. at 13–14.

We have held that “[a]lthough the district court is not required to give the reasons
for rejecting any and all arguments made by the parties for alternative sentences, . . .
when a defendant raises a particular, nonfrivolous argument in seeking a lower sentence,
the record must reflect both that the district judge considered the defendant’s argument
and that the judge explained the basis for rejecting it.” United States v. Gapinski, 561
F.3d 467, 474 (6th Cir. 2009) (internal quotation marks, internal citations, and alterations
omitted). Contrary to Johnson’s claim, however, the record reveals that the district court
“‘listened to each argument,’ ‘considered the supporting evidence,’ was ‘fully aware’ of
the defendant’s circumstances and took ‘them into account’ in sentencing him.” United
States v. Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en banc) (quoting Rita v. United
States, 551 U.S. 338, 358 (2007)). Our unpublished decision in Johnson, which the
defendant cites for support, is of little help to him—the panel in Johnson vacated
sentence because “the district court failed to address any” of the defendant’s mitigating
arguments. Johnson, 356 F. App’x at 795 (emphasis added).
No. 09-4293 United States v. Johnson Page 11

We have already established that here the district court considered the nature and
circumstances of the offense of conviction. As to Johnson’s other arguments in
mitigation, the record shows that the district court was well aware of Johnson’s
conviction and sentence in state court for the underlying violation conduct and
determined that the severity of the breach of trust merited a sentence above the
applicable Guidelines range. Although Johnson argued that his low criminal-history
category weighed in favor of a Guidelines-range sentence, the district court observed that
Johnson had chosen to carry and use a weapon. In spite of Johnson’s initial compliance
with the terms of supervised release, the district court considered that he ultimately
violated those terms by committing a violent crime. The district court commended
Johnson for having been in school, but observed that he showed poor judgment by his
involvement in a violent robbery. Finally, as will be discussed in Part II.B.3.b., infra,
the record clearly shows that the district court properly exercised its discretion to impose
a consecutive sentence. We are therefore satisfied that the district court was aware of
and sufficiently considered Johnson’s mitigating arguments.

3. Adequate Explanation

a. Upward Departure

When imposing a procedurally reasonable sentence, the district court must
“adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range.”3 Gall, 552 U.S. at 51 (emphasis added); see Bolds, 511 F.3d
at 580. “Our analysis is the same regardless of whether the sentence enhancement
constitutes a Guidelines departure or a § 3553(a) variance.” United States v. Vowell, 516
F.3d 503, 510 (6th Cir. 2008); see Herrera-Zuniga, 571 F.3d at 586–88 (explaining that
a “deviation” from the advisory Guidelines range may be “based on a departure or a

3
The Supreme Court has explained that “[t]he sentencing courts, applying the Guidelines in
individual cases may depart []either pursuant to the Guidelines”—a departure—“or, since Booker, by
imposing a non-Guidelines sentence”—a variance. Rita, 551 U.S. at 350. Then, “[t]he judges will set
forth their reasons. The Courts of Appeals will determine the reasonableness of the resulting sentence.”
Id. Cf. Irizarry v. United States, 553 U.S. 708, 714 (2008) (“‘Departure’ is a term of art under the
Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the
Guidelines.”).
No. 09-4293 United States v. Johnson Page 12

variance,” and an “adequate explanation” is required in either case) (emphasis added).
“First, a district court must explain the reasons justifying a departure, and, second,
evidence of those reasons must appear in the record. Such explanation allows
meaningful appellate review.” United States v. Smith, 474 F.3d 888, 894 (6th Cir. 2007),
abrogated on other grounds by Gall, 552 U.S. at 38; see United States v. Barahona-
Montenegro, 565 F.3d 980, 984–86 (6th Cir. 2009) (vacating sentence when district
court failed to explain adequately the chosen sentence, including the application of an
upward departure based on underrepresented criminal history).

In particular, when sentencing outside the advisory range, the district court must
“consider the extent of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.” Gall, 552 U.S. at 50. Indeed, if a
sentence is outside the advisory range, the court is required by statute to state “the
specific reason for the imposition of a sentence different from that described [in the
applicable Guidelines or policy statements.]” 18 U.S.C. § 3553(c)(2) (emphasis added).4
The Guidelines make clear that, when a district court exercises its discretion to depart,
the resulting sentence may be outside the advisory range,5 and thus, a “specific reason”
must be provided for the departure. We have held accordingly that a sentence is
procedurally unreasonable when the district court “fail[s] to provide its specific reasons
for an upward departure or variance.” United States v. Blackie, 548 F.3d 395, 401 (6th
Cir. 2008). In this case, the sentencing range described by the applicable Guidelines or

4
Subsection (c)(2) provides that, if the sentence imposed “is not of the kind, or is outside the
range, described in subsection (a)(4),” the court must state “the specific reason for the imposition of a
sentence different from that described.” 18 U.S.C. § 3553(c)(2). The range described in subsection (a)(4)
is established by, “in the case of a violation of . . . supervised release, the applicable guidelines or policy
statements.” 18 U.S.C. § 3553(a)(4)(B). Thus, a court must state “the specific reason” for imposing a
sentence “outside the range” described by “the applicable guidelines or policy statements.”
5
The Application Instructions to the Guidelines define “Departure” to mean “imposition of a
sentence outside the applicable guideline range or of a sentence that is otherwise different from the
guideline sentence; and . . . for purposes of 4A1.3 (Departures Based on Inadequacy of Criminal History
Category), assignment of a criminal history category other than the otherwise applicable criminal history
category, in order to effect a sentence outside the applicable guideline range.” U.S.S.G. § 1B1.1, cmt.
n.1(E) (emphasis added).
No. 09-4293 United States v. Johnson Page 13

policy statements was the initial, pre-departure range of fifteen to twenty-one months,
and the district court departed upward to an outside-range sentence.6

There has been some debate in this circuit regarding whether the requirement of
§ 3553(c)(2) to state “the specific reason” for varying or departing from the advisory
Guidelines range applies to supervised-release violations, as distinguished from initial
sentences. Compare Malone, 404 F. App’x at 967–69 (majority opinion), with id. at
970–72 (Moore, J., dissenting). However, the plain language of 18 U.S.C. § 3553
provides that § 3553(c)(2) applies to supervised-release-revocation proceedings:
§ 3553(c)(2) requires a specific statement of reasons for all outside-advisory-range
sentences that fall under § 3553(a)(4), which in turn explicitly includes sentences for
supervised-release violations. 18 U.S.C. § 3553(a)(4)(B), (c)(2). Accordingly, this
circuit has previously applied the explanation requirement of § 3553(c)(2) to supervised-
release-revocation proceedings, see United States v. Manning, 317 F. App’x 517, 523–24

6
It is not always obvious what counts as a sentence “outside the range” described by “the
applicable guidelines or policy statements.” Compare United States v. Pembrook, 609 F.3d 381, 384–87
(6th Cir. 2010) (holding that, for resentencing purposes, the applicable range is the pre-departure range,
and not the range to which the court departed), with United States v. Hameed, 614 F.3d 259, 268 (6th Cir.
2010) (“Nowhere have we ruled out the possibility that there might be multiple guideline ranges applicable
to a single defendant’s sentencing.”). A departure, like the initial sentencing range, is provided for by the
Guidelines. Thus, when a court applies a departure, the sentence may remain within the Guidelines
framework, even if not the Guidelines range. Furthermore, when a district court determines, pursuant to
U.S.S.G. § 4A1.3, that the applicable criminal-history category is inadequate, the Guidelines advise courts
to consider an adjusted sentencing range. But see Herrera-Zuniga, 571 F.3d at 588 (“There is no
requirement that, after concluding that a departure is warranted, the court must specify a new, adjusted
sentencing range.”).
It appears from the Guidelines that in this case, however, the relevant “range” for purposes of
§ 3553(a)(4) and (c)(2) is the pre-departure range. In the context of supervised-release revocation, the
Chapter Seven Policy Statement provides a table from which to calculate “[t]he range of imprisonment
applicable upon revocation,” U.S.S.G. § 7B1.4, and offers separate guidance in the Application Notes
regarding when to depart upwardly “from the applicable range,” id. at cmt. n.2. The district court here,
after calculating the initial sentencing range, applied a discretionary departure to an outside-range sentence,
and considered no other relevant range.
The Application Instructions, moreover, establish the order in which courts are to apply the
Guidelines provisions to determine “the guideline range.” U.S.S.G. § 1B1.1(a). Only after “the guideline
range” is determined pursuant to those steps is the court referred to “Parts H and K of Chapter Five,
Specific Offender Characteristics and Departures, and any other policy statements or commentary in the
guidelines that might warrant consideration in imposing sentence.” Id. § 1B1.1(b) (emphasis added); see
Pembrook, 609 F.3d at 385–87 (interpreting the Application Instructions to mean that discretionary
departures do not alter the applicable sentencing range); see also U.S.S.G. Supp. to App. C, amend. 741
(effective Nov. 1, 2010) (“After determining the guideline range, the district court should refer to the
Guidelines Manual and consider whether the case warrants a departure.”) (first emphasis added). We need
not and do not determine, however, whether the pre-departure range is always the only relevant range for
purposes of § 3553(a)(4) and (c)(2).
No. 09-4293 United States v. Johnson Page 14

(6th Cir. 2009) (unpublished opinion); Johnson, 356 F. App’x at 793–95;7 see also
Malone, 404 F. App’x at 970–71 (Moore, J., dissenting) (explaining the application of
§ 3553(c)(2) to supervised-release-revocation proceedings and summarizing cases
applying it accordingly), and we so hold today.

Moreover, even if the statutory requirement of a “specific reason” were not
believed to apply here, this circuit has held that “sentences 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.” Polihonki, 543 F.3d at 322
(internal quotation marks and alteration omitted) (emphasis added). That inquiry
requires “an explanation for any deviation from the Guidelines range.” Gall, 552 U.S.
at 51; see also id. at 46 ( “[A] district judge must give serious consideration to the extent
of any departure from the Guidelines and must explain his conclusion that an unusually
lenient or an unusually harsh sentence is appropriate in a particular case with sufficient
justifications.”).

We established, supra, that the district court properly considered the relevant
§ 3553(a) factors in sentencing, and we are also satisfied that the district court provided
a “specific reason” for departing upward. In response to Johnson’s objection to the
upward departure, the district court explained that:

[B]ased on the facts of the situation . . . , I believe that the sentence that
I’ve imposed reflects the seriousness of his offense in violating his
supervised release in the fashion that he did. I hope it will promote
respect for the law; obviously he didn’t have any at the time he became
involved.

Sent. Tr. at 16. The district court then explained that the sentence was intended to
provide just punishment, adequate deterrence, and opportunities for education and
vocational training. As demonstrated by the record, the district court justified the

7
Notably, in United States v. Dawe, 362 F. App’x 436 (6th Cir. 2010) (unpublished opinion), we
vacated a sentence imposed upon probation revocation when a district court departed upward and failed
at the sentencing hearing to explain “the specific reason” for the upward departure, id. at 439–40. The
district court in Dawe departed upward in accordance with Application Note Four to § 7B1.4, the same
policy statement at issue here; at the hearing, however, the court did not reference the relevant policy
statement or otherwise provide its reasons for disagreeing with the applicable Guidelines range. Id.
No. 09-4293 United States v. Johnson Page 15

sentence imposed based on its review of the relevant § 3553(a) factors and provided a
specific reason for the upward departure—namely, the gravity of Johnson’s breach of
trust. Thus, when deciding to depart upwardly, the district court considered, among
other factors, the nature and circumstances of the original offense, including the
downward departure in the original sentence, and Johnson’s history and characteristics,
including the violation conduct. Review of the record therefore establishes that the
district court “adequately explain[ed] the chosen sentence” and provided “an explanation
for [the] deviation from the Guidelines range.” Gall, 552 U.S. at 51. We hold, therefore,
that the district judge complied with his duties to review the relevant § 3553(a) factors
and to state “the specific reason” for departing upward.

b. Consecutive Sentence

Johnson also argues that his sentence is procedurally unreasonable because the
district court failed to provide reasons for imposing a consecutive rather than concurrent
sentence. At his sentencing hearing, Johnson requested that the district court impose the
federal sentence concurrent to his twelve-year state sentence in light of the mitigating
factors he presented to the court. The district court denied his request and ordered his
thirty-six month sentence to be served consecutively to his state sentence, overruling
Johnson’s subsequent objection.

When a defendant is subject to an undischarged sentence of imprisonment, the
district court generally has authority to impose a term of imprisonment on the current
offense to run concurrently with or consecutively to the prior undischarged term.
18 U.S.C. § 3584(a). Exercise of that authority, however, is predicated on the district
court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any
applicable Guidelines or policy statements issued by the Sentencing Commission.
18 U.S.C. § 3584(b). Specifically, when imposing sentence upon revocation of
supervised release, the policy statement in U.S.S.G. § 7B1.3(f) provides that:

Any term of imprisonment imposed upon the revocation of . . .
supervised release shall be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving, whether or not
No. 09-4293 United States v. Johnson Page 16

the sentence of imprisonment being served resulted from the conduct that
is the basis of the revocation of . . . supervised release.

U.S.S.G. § 7B1.3(f). This policy statement is not binding on the district court, and
construing it to be mandatory would be reversible error. See United States v. Sparks,
19 F.3d 1099, 1101–02 & n.3 (6th Cir. 1994). Nonetheless, the district court must
consider § 7B1.3(f) when it is applicable and may exercise its discretion to apply it when
determining whether to impose a consecutive sentence. Id. at 1102; see United States
v. Balli-Solis, No. 09-5238, 2010 WL 3724605, at *6–7 (6th Cir. Sept. 15, 2010)
(unpublished opinion); United States v. Olivo, 127 F. App’x 880, 882–83 (6th Cir. 2005)
(unpublished opinion).

When sentencing Johnson, the district court properly noted that it “ha[d] the
discretion to make the sentence run concurrent or consecutive” and then exercised that
discretion to order that the federal sentence be served consecutively to Johnson’s state
sentence. Sent. Tr. at 16. The district court’s determination of the length of Johnson’s
sentence and his decision to impose the sentence consecutively to the undischarged state
sentence were intertwined. As required by § 3584(b), the district court indicated that it
believed a consecutive sentence to be appropriate in light of several § 3553(a) factors.8
U.S.S.G § 3584(a), (b). There is no requirement that the district court state a “specific
reason” for a consecutive sentence, and the relevant Guidelines and policy statements
presume that multiple terms of imprisonment imposed at different times are consecutive.
U.S.S.G. § 7B1.3(f); 18 U.S.C. § 3584(a); United States v. McCree, 299 F. App’x 481,
483 (6th Cir. 2008) (unpublished opinion). “Where, as here, the court makes generally
clear the rationale under which it has imposed the consecutive sentence . . . , it does not

8
Johnson also urges that the district court failed to consider additional factors provided by
U.S.S.G. § 5G1.3(c) and the relevant commentary—such as “[t]he type . . . and length of the prior
undischarged sentence”—in its determination of whether to impose a concurrent or consecutive sentence.
See U.S.S.G. § 5G1.3 cmt. n.3(A)(ii); United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009). However,
§ 5G1.3(c) does not apply to this sentencing proceeding. The § 5G1.3(c) factors must be considered “in
cases in which the defendant was on federal or state . . . supervised release at the time of the instant offense
and has had such . . . supervised release revoked. . . . [in which case] the sentence for the instant offense
[should] be imposed consecutively to the sentence imposed for the revocation.” U.S.S.G. § 5G1.3 cmt.
n.3(C). But the “sentence imposed for the revocation” is the sentence being imposed here. Essentially,
§ 5G1.3(c) applies to the reverse of this situation—the sentencing for the criminal conduct underlying the
violation, not upon revocation of the supervised-release portion of the original sentence for the initial
offense.
No. 09-4293 United States v. Johnson Page 17

abuse its discretion.” United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998)
(emphasis added). We are therefore satisfied that the district court did not abuse its
discretion in imposing a consecutive sentence.

C. Substantive Reasonableness

Given Johnson’s lenient initial sentence for his original conviction, the severity
of the violations of the terms of his supervised release, and the § 3553(a) factors
considered by the district court in sentencing, the length of Johnson’s sentence—thirty-
six months of imprisonment, incorporating a fifteen-month upward departure—is not
substantively unreasonable. See, e.g., United States v. Brown, 501 F.3d 722, 726 (6th
Cir. 2007) (affirming imposition of ten-month upward departure upon revocation of
supervised release following multiple drug and alcohol-related violations). “[We] may
consider the extent of the deviation, but must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall,
552 U.S. at 51. Committing a violent crime and using a firearm constituted serious
breaches of the trust invested in Johnson by virtue of his supervised-release sentence,
and the relevant policy statement endorsed departing upward upon revocation in light
of the downward departure applied to his original sentence. We conclude, therefore, that
“tak[ing] into account the totality of the circumstances,” including the fifteen-month
upward departure, the district court did not abuse its discretion in sentencing Johnson to
thirty-six months of imprisonment. Bolds, 511 F.3d at 581.

III. CONCLUSION

Reviewing for procedural reasonableness, we conclude that the district court
properly calculated the Guidelines range, appropriately considered the applicable
sentencing factors and the arguments of the parties, and provided an adequate
explanation for the sentence imposed, including a specific reason for the upward
departure. We also conclude that, under the totality of the circumstances, Johnson’s
sentence is substantively reasonable. Therefore, we AFFIRM the sentence imposed by
the district court.