NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0670n.06
Filed: November 4, 2008
No. 07-2109
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 WESTERN
v. ) DISTRICT OF MICHIGAN
)
TOMMY WAYNE MCKINNEY, )
)
Defendant-Appellant. )
__________________________________________
BEFORE: MOORE, GRIFFIN, and BRIGHT,* Circuit Judges.
GRIFFIN, Circuit Judge.
After repeatedly violating the terms of his supervised release by continuing to use cocaine,
failing to submit to urinalysis testing, and refusing to attend substance abuse treatment, the district
court revoked defendant Tommy Wayne McKinney’s supervised release and sentenced him to
eighteen months of incarceration – six months above the Guidelines range. On appeal, McKinney
argues that his sentence is procedurally and substantively unreasonable. We disagree and affirm.
I.
Following his guilty plea for being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), defendant was sentenced to forty-eight months of incarceration, followed by three years
*
The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit,
sitting by designation.
No. 07-2109
United States v. McKinney
of supervised release. The supervised release contained the standard conditions, including a
requirement that defendant “not purchase, possess, use, distribute, or administer any controlled
substance or any paraphernalia related to any controlled substances” and directing defendant to
“participate in a program of testing and treatment for substance abuse, as directed by the probation
officer . . . .”
McKinney completed his term of incarceration and began serving his supervised release on
April 7, 2006. On May 15, 2006, the district court entered the first of several modifications to the
terms of McKinney’s supervised release due to defendant’s continued use of cocaine. After the first
violation, the district court ordered defendant to enter into a six-month community alternative
program, abide by an 11:00 p.m. curfew, avoid using or possessing body armor, avoid the use or
possession of alcohol, as well as avoid places whose primary purpose is the sale of alcohol, perform
twenty hours of community service per week if he was unemployed, and avoid possessing or having
primary use of a cellular telephone.
Less than two months later, on July 12, 2006, the district court again modified the terms of
supervised release as a result of defendant’s continued use of cocaine. This modification required
McKinney to spend an additional six months at the community center. Defendant again tested
positive for cocaine when he reported to the probation office on July 24, 2007. McKinney also failed
to comply with the requirement that he attend regularly scheduled urinalysis appointments; he missed
four such appointments. Additionally, defendant refused to participate in the required substance
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United States v. McKinney
abuse treatment, stating that he did not need treatment. After testing positive for cocaine in July
2007, McKinney finally submitted to treatment.
McKinney pleaded guilty to four counts of violating the terms of his supervised release. The
probation office noted that defendant’s use of cocaine was a Grade B violation, with a corresponding
Guidelines range of six to twelve months of incarceration, and defendant’s failures to report for
urinalysis were Grade C violations, with a corresponding Guidelines range of one to six months. The
probation office calculated defendant’s total Guidelines range as six to twelve months according to
U.S.S.G. § 7B1.4(a), with a statutory maximum of two years pursuant to 18 U.S.C. § 3583(e)(3).
The probation office recommended an upward variance to eighteen months of incarceration and
suggested that the court “may wish to consider recommending Mr. McKinney for participation in
the 500 Hour Residential Drug Abuse Program while in the custody of the Bureau of Prisons.”
The district court sentenced McKinney to eighteen months of incarceration, followed by
eighteen months of supervised release, but did not recommend McKinney for the residential drug
abuse program. Defendant did not object to his sentence at the time it was given, but now appeals,
arguing that the sentence is unreasonable.
II.
McKinney argues that the sentence is procedurally and substantively unreasonable because
of its upward variance from the Guidelines range. We review sentencing decisions under a
deferential abuse-of-discretion standard for procedural and substantive reasonableness. United
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United States v. McKinney
States v. Gray, 521 F.3d 514, 542 (6th Cir. 2008) (citing United States v. Bolds, 511 F.3d 568, 578
(2007)); see also Gall v. United States, 128 S. Ct. 586, 594 (2007).
A district court imposes a procedurally unreasonable sentence if it fails to properly calculate
the Guidelines range, treats the Guidelines as mandatory, fails to consider the 18 U.S.C. § 3553
factors, or fails to explain its rationale for imposing a particular sentence. Bolds, 511 F.3d at 581.
When imposing a sentence, a district court does not need to recite the § 3553 factors; the court
merely needs to provide enough of an explanation to show that it has considered the parties’
arguments and has a reasoned basis for exercising its authority. United States v. Jeross, 521 F.3d
562, 583 (6th Cir. 2008) (citing Rita v. United States, 127 S. Ct. 2456, 2468 (2007)).
Defendant argues that the sentence was procedurally unreasonable because the district court
did not explain why an upward variance was necessary and “did not give a clear reason for its choice
of sentence.” This is simply incorrect. The district court stated its reasons for the variance at the
sentencing hearing:
So the sentence is that you be committed to the Federal Bureau of Prisons for a term
of 18 months, which is a departure from the guidelines, I realize that. And the
departure is, again, so the record is clear, in case there is the necessity for review, the
reasons for the departure are the fact that you have repeatedly, number one, used
drugs, failed to participate by complying with the required [urinalysis tests], and only
at a very late date begun to participate in treatment after I think some fairly extensive
attempts by your probation officer to convince you to do that.
So the sentence is, again, a departure. The guidelines are six to 12 months. The
sentence is 18 months, with an 18-month period of supervised release after that.
It is clear that the district court understood the Guidelines range, its authority to deviate from it, and
articulated a reason for doing so. McKinney argues that the basis for this variance was unreasonable,
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United States v. McKinney
but this is a substantive disagreement, not a matter of procedure. We conclude that the sentence was
procedurally reasonable.
Defendant argues that the variance from the Guidelines was substantively unreasonable
because the probation office recommended a variance in order for defendant to be eligible for
participation in the 500-hour drug treatment program, but the district court specifically refused to
recommend defendant for the program. The district court explained its reasons for doing so: “I
would make a recommendation for treatment if I thought it would make a difference in your case,
but, frankly, I don’t. And so I won’t make any recommendation to the Bureau of Prisons.”1
McKinney has shown that he disagrees with the district court’s decision to impose a sentence six
months beyond the Guideline range, but has not demonstrated that it was an abuse of discretion. See
Rita, 127 S. Ct. at 2467 (“appellate courts may not presume that every variance from the advisory
Guidelines is unreasonable.”) Following our thorough review, we hold that defendant’s sentence
is substantively reasonable.
III.
For the reasons stated above, we affirm.
1
The district court made no recommendation for the drug treatment program but left any such
decision up to the Bureau of Prisons. The Bureau of Prisons should evaluate defendant to determine
his eligibility for the program.
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