NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0109n.06
No. 12-3234
FILED
UNITED STATES COURT OF APPEALS Jan 30, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
WILSON DOMINGUEZ, ) DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.*
LUDINGTON, District Judge. Wilson Dominguez was sentenced to 30 months in custody
to be followed by three years’ supervised release after he pled guilty to selling 3,000 ecstasy pills in
violation of 21 U.S.C. § 841(a). After being released and deported to the Dominican Republic in
August 2008, Dominguez returned to the United States. In April 2009, he violated the conditions
of his supervised release, admitted the violations, and was sentenced to six months in prison with
credit for time served. The court then imposed a term of supervised release until August 2012,
stating it was “extend[ing] for one year the terms of [Dominguez’s] supervised release.” Oct. 19,
2009 Hr’g. Tr. 9. Twenty-three months later, in September 2011, Dominguez again violated his
supervised release when he was arrested for trafficking three kilograms of cocaine.
For his second supervised release violation, Dominguez received an eighteen-month custodial
sentence. On appeal, he claims the district court did not expressly revoke his supervised release term
*
The Honorable Thomas L. Ludington, United States District Judge for the Eastern
District of Michigan, sitting by designation.
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United States v. Dominguez
in October 2009 when the six-month custodial sentence was imposed, and as a result, improperly
extended it. Dominguez concludes he was therefore not subject to supervised release at the time of
his arrest in September 2011. He also argues that the eighteen-month sentence he received for the
second violation is procedurally and substantively unreasonable because the court did not expressly
address the 18 U.S.C. § 3553(a) factors.
Dominguez’s attack on the October 2009 sentence is untimely and therefore cannot be
reviewed. Further, the district court’s attention to the § 3553(a) factors was legally sufficient, and
his 18-month sentence is both procedurally and substantively reasonable. We affirm.
I
In 2006, Dominguez pled guilty to selling 3,000 ecstasy pills. A Class C felony, the court
was authorized to impose a term of imprisonment up to 20 years. 21 U.S.C. § 841(b)(1)(C). In
addition, upon any sentence of imprisonment, the court was required to establish “a term of
supervised release of at least 3 years.” Id. Pursuant to that authority the court sentenced Dominguez
to 30 months in custody and three years of supervised release.
Dominguez’s supervised release commenced on August 14, 2008 when he was transferred
from the custody of the Federal Bureau of Prisons into the custody of Immigration and Customs
Enforcement (ICE) pending removal. Dominguez was then deported to his native Dominican
Republic. At that time, his supervised release was slated to end on August 13, 2011.
Dominguez then attempted to re-enter the United States, and on April 20, 2009 he was
arrested and charged in the Southern District of Texas with illegal re-entry in violation of 8 U.S.C.
§ 1326. This charge would later be dismissed after it was discovered that Dominguez’s father was
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a naturalized U.S. citizen. Dominguez was, however, alleged to have committed two other
supervised-release violations: failing to notify the Probation Office within 72 hours of his arrest for
illegal re-entry, and failing to pay a portion of the special assessment fee charged for his original
conviction. After the April arrest in Texas, Dominguez waited five months in custody until a
supervised release hearing was held in Ohio, where the original drug conviction occurred.
On September 29, 2009, Dominguez’s supervised release hearing commenced. When the
court raised the two alleged supervised release violations, Dominguez acknowledged his guilt. His
counsel explained, “With regard to the supervised release violations stemming from the failure to
pay the special assessment and the failure to contact law enforcement, we would enter an admission
with regard to those violations.” Sep. 29, 2009 Hr’g. Tr. 8. At that time, the investigation regarding
Dominguez’s citizenship status was still pending. The court noted that Dominguez’s citizenship
status would weigh heavily on its decision, and the hearing was continued for three weeks.
On October 19, 2009, the parties reconvened for the continued hearing. The court began by
establishing that Dominguez had admitted to the two supervised release violations outlined above,
and that the charge against him for illegal re-entry had been dismissed. Oct. 19, 2009 Hr’g. Tr. 3–4.
The court established that the remaining violations were “both grade C violations” with a Guidelines
range for imprisonment of “three to nine months.” Id. at 10. Defense counsel requested the court
to impose a sentence of six months, crediting the time Dominguez had already served in custody,
with the understanding that “he would remain on supervised release” afterwards. Id. at 5.
The court did just that. It imposed a term of six months’ incarceration, with credit for time
served, and “extend[ed] for one year the terms of the defendant’s supervised release.” Id. at 9.
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When the court asked if Dominguez had anything else to offer, defense counsel responded “No, Your
Honor. Thank you very much.” Id. at 10. In fact, no objections were raised during the hearing.
Dominguez was then released from the Bureau of Prisons on supervised release for a term ending
on August 13, 2012.
On September 9, 2010, pursuant to the conditions of his supervised release, Dominguez
submitted to a drug test. He tested positive for cocaine. Three weeks later a supervision report was
filed, indicating that Dominguez had violated the terms and conditions of his supervised release by
testing positive for drugs. The Probation Office requested a modification of the original supervised
release conditions, suggesting outpatient drug counseling and testing for Dominguez, as well as
continued personal supervision. The report also requested a reduction of the term of supervised
release imposed by the court in October 2009 to conform with 18 U.S.C. § 3583(b)(2).1 The United
1
Both parties apparently believe that 18 U.S.C. § 3583(b)(2) controls Dominguez’s term of supervised release.
However, 21 U.S.C. § 841(b)(1)(C) outlines the penalties for the crime Dominguez pled guilty to in 2006. It reads in
pertinent part, “Notwithstanding section 3583 of Title 18, any sentence imposing a term of imprisonment under this
paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 3 years in
addition to such term of imprisonment.” Id. (emphasis added). Section 841(b) has been interpreted as providing no
ceiling for the length of supervised release terms under that section. United States v. Chiles, 137 F. App’x 870, 874 (6th
Cir. 2005) (unpublished table opinion); see also United States v. Gibbs, 58 F.3d 36, 37S38 (2d Cir. 1995) (§
841(b)(1)(C) provides “no maximum term of supervised release” and therefore “the statutory maximum term of
supervised release is a life term.”).
Further, the Sixth Circuit has consistently concluded § 3583(b) was not meant to override the supervised release
requirements in § 841(b). In United States v. Page, 131 F.3d 1173, 1180 (6th Cir. 1997), abrogated on other grounds
by Johnson v. United States, 529 U.S. 694, 700 (2000), the court held,
[T]he specific provisions of section 841(b)(1)(C) prevail over the general provisions of section
3583(b)(2) when there is an apparent conflict. In regard to the present case, section 841(b)(1)(C)
provides for a term of supervised release of “at least three years,” not simply “three years.” W e believe
that this language indicates an intent on the part of Congress to allow terms of supervised release of
more than three years. There is no language in section 841(b) to suggest that Congress intended the
authorized terms of supervised release to be limited by section 3583(b).
See also United States v. Newborn, 71 F. App’x 557, 564 (6th Cir. 2003) (citations omitted) (“the majority of the other
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States Attorney’s Office did not object, and Dominguez’s supervised release was reduced by four
months, with a new expiration date of April 18, 2012. On October 4, 2010, the modification was
docketed. Dominguez also visited the Probation Office on April 26, 2011, was informed about his
new end-date of supervised release, and signed a form indicating his acknowledgment of the change.
Feb. 14, 2012 Hr’g. Tr. 7.
Then on September 14, 2011 Dominguez and three others gathered in a parking lot to sell
several kilograms of cocaine to an undercover agent for $30,000. When confronted with the buyer’s
true identity, Dominguez attempted to evade arrest on foot. Id. at 26. He failed, and was arrested
and charged in the Summit County Court of Common Pleas with trafficking cocaine in violation of
the Ohio Revised Code. Dominguez pled guilty on December 5, 2011 and was sentenced to seven
years in Ohio state prison. Id. Dominguez’s state conviction became the basis for an additional
violation hearing before the district court on January 9, 2012. There, for the first time, Dominguez
questioned the October 2009 sentence. He argued that the court had no authority to “extend” the
original supervised release term of three years, and that the term of supervised release ended in
August 2011. Dominguez concluded the court could not impose a sanction for a supervised release
violation one month later. The court requested briefing on the issue, and the hearing was continued
to February 2012.
circuits to have addressed this issue has held that § 3583(b) does not limit the term of supervised release a district court
may impose under § 841(b)(1)(C).”). But because Dominguez’s appeal of his October 2009 sentence is untimely, this
distinction is not critical to our analysis.
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On February 14, 2012, the supervised release violation hearing resumed. Although
Dominguez admitted to the new supervised release violation, he disputed whether he was lawfully
subject to supervised release at the time of his arrest. The court explained that “while the court’s
order does not specifically note that the defendant’s supervised release [was] revoked, obviously the
court could not have sentenced the defendant to a term in the Bureau of Prisons if, in fact, revocation
had not occurred.” Id. at 16. The court went on, “There was no objection by counsel to the court’s
imposition of the order. So it was obvious to all involved, including counsel for the defendant, that
the court had, in fact, revoked the defendant’s supervised release.” Id. at 16–17.
The court also found that while the new supervised release term had originally been extended
beyond the 36-month maximum, this was identified by the Probation Office and modified to conform
with § 3583(b)(2). Dominguez was then properly informed of the change. Id. at 17. The court
concluded that at the time of his September 2011 violation, Dominguez was “on supervised release,
and as borne out by the testimony, was continuing to be supervised at the time of the new law
violation which brings him before the court today for purposes of sentencing.” Id. at 18.
The court turned to the imposition of a sentence, and indicated it had reviewed the
presentence investigation report from the original sentencing, as well as various probation reports.
Id. at 23. The court established that the advisory Guidelines range was between 12 and 18 months
after revoking Dominguez’s supervised release because of his September 2011 violation. Defense
counsel “concur[red] with the court’s analysis.” Id. at 28.
The court was not pleased with Dominguez’s conduct. He had previously been given “the
benefit of the doubt” with the hope that his previous transgression was an “isolated incident and not
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likely to reoccur. That, unfortunately, was not the case.” Id. at 28–29. The court noted that
Dominguez had attempted to sell three kilograms of cocaine for $30,000, and then had attempted
to flee from police. “All of that leads the court to nothing but the conclusion, sir, that you have not
learned from any earlier sanction that has been imposed, and there is a need for just punishment,
adequate deterrence, to protect the public, for a lengthy term of incarceration.” Id. at 29. For those
reasons, the court imposed an 18-month sentence, at the top of the advisory Guidelines range, to run
consecutive and not concurrent to the state sentence. Id. Defense counsel asked the court to
reconsider the consecutive nature of the sentence, but did not raise any objections to the court’s
application of the § 3553(a) factors. Id. at 30. The court explained that it would not reconsider the
sentence — that a consecutive sentence was appropriate given Dominguez’s conduct. Id. at 30–31.
Dominguez was then sentenced, and raised this appeal.
II
Dominguez did not protest the term of supervised release imposed on October 19, 2009 until
January 9, 20122 — well over two years later. The government objects that the attack is therefore
untimely. We agree.
Federal Rule of Appellate Procedure 4(b) requires that a criminal defendant file notice of
appeal within 14 days after “the entry of either the judgment or the order being appealed.” Fed. R.
App. P. 4(b)(1)(A)(i). We are required to dismiss late-filed criminal appeals when the government
2
In fact, Dominguez argued the sentence was improper only once he faced an additional 12–18 months in prison
for violating the conditions of supervised release. W hen previous opportunities to question the sentence arose,
Dominguez was compliant: he did not object to the sentence during the October 19, 2009 hearing; he did not object to
the court order reducing his supervised release on October 4, 2010; and he did not object when he visited the Probation
Office on April 26, 2011 to acknowledge the reduction in writing.
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has raised the issue. United States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir. 2011) (per curiam).
In Gaytan-Garza, the defendant waited four years to file his appeal to the district court’s judgment
against him, and his appeal was sua sponte “dismissed as untimely.” Id.
Several sister circuits agree. “When the government properly objects to the untimeliness of
a defendant’s criminal appeal, Rule 4(b) is mandatory and inflexible.” United States v. Frias, 521
F.3d 229, 234 (2d Cir. 2008); see also United States v. Watson, 623 F.3d 542, 544 (8th Cir. 2010)
(defendant’s notice of appeal was untimely, the government properly objected, and the appeal was
dismissed); United States v. Lopez, 562 F.3d 1309, 1314 (11th Cir. 2009) (“Because the government
has not forfeited its objection to Lopez’s untimely notice of appeal, we must apply the time limits
of Rule 4(b).”); United States v. Byfield, 522 F.3d 400, 403 (D.C. Cir. 2008) (where defendant’s
appeal was untimely, and the government properly objected, the appeal was dismissed); United
States v. Sadler, 480 F.3d 932, 942 (9th Cir. 2007) (where defendant’s appeal was untimely and the
government objected, the court was “required to dismiss [the] appeal”); United States v. Turner, 88
F. App’x 307, 310 (10th Cir. 2004) (defendant’s attack on the legality of his sentence was “clearly
time-barred under the Federal Rules of Appellate Procedure” where he did not file an appeal within
the limits of Rule 4(b)); Rivera v. United States, 48 F.3d 1222, 1995 WL 94905, at *1 (7th Cir. 1995)
(unpublished table opinion) (recognizing attack on defendant’s sentence under 28 U.S.C. § 2255 was
procedurally barred where defendant did not file direct appeal).
Here, Dominguez never appealed his October 2009 sentence. He did not object during the
hearing when the sentence was imposed and he did not directly appeal the sentence. Dominguez first
raised the issue on January 9, 2012, only after he was facing another supervised release violation.
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The government, in contrast, timely objects to Dominguez’s attack on the October 19, 2009 sentence
— noting that it is late. Because the government has properly objected to the consideration of
Dominguez’s appeal, and the appeal is more than two years overdue, the requirements of Rule 4(b)
must be enforced. Dominguez’s challenge to the sentence imposed on October 19, 2009 and the
subsequent term of supervised release will be dismissed. He was properly subject to supervised
release at the time of his September 2011 violation.
III
Dominguez asserts that even if he violated the terms of his supervised release, the
eighteen-month sentence he received in February 2012 is procedurally and substantively
unreasonable. Dominguez criticizes the court’s discussion of the § 3553(a) factors. Again,
Dominguez’s argument is without merit.
A
We review “sentences imposed following revocation of supervised release . . . under the same
abuse of discretion standard that we apply to sentences imposed following conviction.” United
States v. Johnson, 356 F. App’x 785, 793 (6th Cir. 2009) (quoting United States v. Polihonki, 543
F.3d 318, 322 (6th Cir. 2008)).
This “deferential abuse-of-discretion standard” includes both a procedural and a substantive
component. United States v. Alexander, 543 F.3d 819, 821–22 (6th Cir. 2008) (quoting Gall v.
United States, 552 U.S. 38, 40 (2007)). A review of the procedural reasonableness of a sentence
begins with ensuring that the district court correctly calculated the applicable Guidelines range.
United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007). The next consideration is whether the
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district court considered the § 3553(a) factors to determine the appropriate sentence, and finally
whether the court adequately articulated its reasoning for imposing the particular sentence chosen.
Id. Significant procedural error includes, among other things, “failing to consider the § 3553(a)
factors.” Gall, 552 U.S. at 51; United States v. Baker, 559 F.3d 443, 448 (6th Cir. 2009).
Under the standard set forth in United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), after
sentencing defendants, district courts must “ask the parties whether they have any objections to the
sentence just pronounced that have not previously been raised.” Id. at 872. If a party then fails to
clearly articulate an objection when given this final opportunity, that party “will have forfeited its
opportunity . . . and thus will face plain error review on appeal.” Id. at 872–73. When contemplating
plain error, we consider “whether (1) there was an error, (2) which was plain, (3) that affected the
defendant’s substantial rights, and (4) that, in our discretionary view, seriously affects the
fundamental fairness, integrity, or public reputation of judicial proceedings.” United States v.
Trammel, 404 F.3d 397, 401 (6th Cir. 2005) (citing Johnson v. United States, 520 U.S. 461, 466
(1997)).
If the sentence is procedurally sound, the next consideration is whether the sentence is
substantively reasonable, taking into account the totality of the circumstances. Alexander, 543 F.3d
at 822; Baker, 559 F.3d at 448. “District courts are charged with imposing ‘a sentence sufficient,
but not greater than necessary, to comply with the purposes’ of sentencing.” Alexander, 543 F.3d
at 822 (quoting § 3553(a); United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006)). There
is a rebuttable presumption of reasonableness if the sentence falls within a properly-calculated
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Guidelines range. Baker, 559 F.3d at 448; Alexander, 543 F.3d at 822; United States v. Heriot, 496
F.3d 601, 608 (6th Cir. 2007).
B
Dominguez claims his sentence is procedurally unreasonable. He believes the district court
erred by not considering the § 3553(a) factors and by imposing a sentence to run consecutive to his
state sentence. His arguments can be disposed in short order.
Defense counsel did not object to the court’s recitation of the § 3553(a) factors, even after
the court requested objections pursuant to Bostic. See Feb. 14, 2012 Hr’g. Tr. 30. We therefore
review for plain error. Bostic, 371 F.3d at 872–73. When imposing a sentence, § 3553(a) requires
a court to consider a number of sentencing factors. But a sentencing court need not “recite the statute
in so many words,” or simply invoke a set of “magic words” to achieve a proper sentence. United
States v. Bridgewater, 479 F.3d 439, 442 (6th Cir. 2007). Instead, the court must set forth enough
to indicate the sentence was “reasoned and properly founded.” Id. See also United States v. Salter,
420 F. App’x 519, 522 (6th Cir. 2011) (unpublished) (district court’s consideration of the
defendant’s “history and circumstances,” as well as the need “to promote respect for the law”
satisfied its obligation under § 3553(a) despite the lack of any “explicit reference to the listed factors
. . . as no such ritual incantation is required”) (internal quotation marks and citation omitted).
A full review of the record here reveals that the district court did consider the relevant factors
in reaching a sentence that was sufficient, but not greater than necessary, to “comply with the
[sentencing] purposes set forth” in § 3553. Specifically, the court addressed the need to deter
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Dominguez’s pattern of uncontrolled behavior, the severity of his offense, and the important task of
protecting society.
The court first outlined Dominguez’s criminal history, and addressed the available sentences
under the appropriate sentencing range. Feb. 14, 2012 Hr’g. Tr. 24–27. The court went on to
establish that Dominguez had previously been given “the benefit of the doubt,” but that he
“thereafter chose to violate the law, not in some minor way or some minor fashion, but to be part of
a large-scale cocaine trafficking organization.” Id. at 29. “All of that leads the court to nothing but
the conclusion, sir, that you have not learned from any earlier sanction that has been imposed, and
there is a need for just punishment, adequate deterrence, to protect the public, for a lengthy term of
incarceration.” Id. The court’s explanation demonstrates that it considered the § 3553 factors before
imposing the sentence and articulated a reasoned, well-founded basis for its decision. The district
court did not err, much less commit plain error in applying § 3553.
Dominguez also claims the consecutive sentence is procedurally unreasonable because the
court did not address the relevant § 3553(a) factors when deciding whether the sentence should be
imposed consecutively or concurrently to his state sentence. Dominguez did object to the
consecutive nature of the sentence, id. at 30, and therefore that determination is reviewed for abuse
of discretion. Bolds, 511 F.3d at 575 (quoting United States v. Lalonde, 509 F.3d 750, 769 (6th Cir.
2007)). On review, however, no such abuse is to be found.
As described above, the court adequately considered the applicable sentencing factors when
imposing Dominguez’s sentence. The Sixth Circuit has “never held that a district court is required
to repeat a Section 3553(a) analysis in its consideration of the consecutive or concurrent nature of
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a sentence.” United States v. Berry, 565 F.3d 332, 343 (6th Cir. 2009). In Berry, the court
concluded that “[r]equiring district courts to conduct a separate Section 3553(a) analysis for the
concurrent or consecutive nature of the sentence would be repetitious and unwarranted, and . . .
district courts have no such distinct obligation.” Id. The district court’s analysis of § 3553(a) was
sufficient in the first instance, and did not bear repeating when determining whether a consecutive
sentence was appropriate.
C
Dominguez finally claims his sentence is substantively unreasonable, again alleging the court
failed to consider the § 3553(a) factors. But as discussed at length, the district court considered
Dominguez’s criminal behavior, the nature of the offense he had committed, and the manner in
which he had flouted the court’s authority. The court also explicitly addressed the need for
deterrence, and to protect society from Dominguez’s conduct. Dominquez’s contention does not
support the proposition that his sentence is substantively unreasonable. His sentence of 18 months
will stand.
IV
We affirm.
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