NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0507n.06
Filed: July 18, 2007
No. 06-4509
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
LARRY HARRIS, )
) MEMORANDUM
Defendant-Appellant. ) OPINION
BEFORE: MARTIN and McKEAGUE, Circuit Judges; and GREER, District Judge.*
PER CURIAM. On December 4, 2003, defendant Larry Harris began serving a three-year
term of supervised release after serving a 17-year, 6-month term of imprisonment for conspiracy to
possess cocaine with intent to distribute it. On November 9, 2006, at a supervised release violation
hearing, defendant admitted having violated the conditions of his supervised release by using
cocaine. The district court accepted defendant’s admission of guilt, terminated his supervised
release, and sentenced him to 10 months’ incarceration. Defendant now appeals this sentence
contending it represents an abuse of discretion. Defendant acknowledges he has a longstanding drug
problem and contends that his admission of abuse reflects his need and desire for treatment.
_________________________
*Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 06-4509
United States v. Harris
Defendant contends the district court should have imposed a sentence of probation with remand to
a residential treatment program.
A district court’s revocation of supervised release is reviewed for abuse of discretion. United
States v. Carr, 421 F.3d 425, 429 (6th Cir. 2005). A sentence imposed for violation of supervised
release will be affirmed “if it shows consideration of the relevant statutory factors and is not plainly
unreasonable.” Id. (quoting United States v. McClellan, 164 F.3d 308, 309 (6th Cir. 1999)).
Inasmuch as defendant admitted he had repeatedly violated the conditions of his supervised
release by using cocaine, revocation of supervised release can hardly be deemed an abuse of
discretion. The district court’s order revoking supervised release does not include explicit
consideration of the policy statements set forth in the Sentencing Guidelines or the sentencing factors
listed in 18 U.S.C. § 3553. Yet, the 10-month sentence imposed in this case is undisputedly within
the applicable advisory guideline range of 8 to 14 months. It is therefore presumptively reasonable.
Rita v. United States, — U.S. — , 127 S.Ct. 2456, 2462-63 (2007); United States v. Cage, 458 F.3d
537, 540-41(6th Cir. 2006). Moreover, the sentencing court’s consideration of the probation
officer’s violation report warrants the presumption that the court considered the policy statements
and factors contained therein. Carr, 421 F.3d at 431-32; McClellan, 164 F.3d at 310; United States
v. Sloboda, 162 F. App’x 550, 552-53 (6th Cir. 2006) (unpublished). Defendant has made no
showing tending to rebut either of these presumptions.
Considering that defendant had tested positive for cocaine use when he attempted to register
for residential treatment in September 2006, and was for that reason rejected from the program, the
district court’s decision to impose a term of incarceration rather than remand for continued
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No. 06-4509
United States v. Harris
residential treatment is not plainly unreasonable. Defendant’s preference for a sentence of probation
and a second chance in the residential treatment program, though understandable, is no grounds for
finding that the district court committed a clear error of judgment or otherwise abused its discretion.
We find no error.
The judgment of the district court is therefore AFFIRMED.
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