NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0552n.06
No. 13-5895
FILED
UNITED STATES COURT OF APPEALS Jul 24, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
ANDRE DESHAWN TERRY, ) TENNESSEE
)
Defendant-Appellant. )
)
)
BEFORE: BOGGS, CLAY, and GILMAN, Circuit Judges.
PER CURIAM. Andre Deshawn Terry challenges his 24-month sentence imposed by the
district court when it revoked his supervised release. As set forth below, we affirm.
In 2004, Terry pleaded guilty to possession of a firearm by a felon in violation of
18 U.S.C. § 922(g). The district court sentenced Terry to 108 months of imprisonment followed
by two years of supervised release. Upon remand for resentencing under United States v.
Booker, 543 U.S. 220 (2005), the district court imposed the same sentence.
Terry’s supervised release began on January 26, 2012. The probation office subsequently
petitioned the district court to issue an arrest warrant, asserting that Terry had been arrested on
September 18, 2012 and charged with delivery of .5 grams or more of cocaine, in violation of the
mandatory supervised-release condition that he not commit another crime. At the supervised
release violation hearing on June 18, 2013, Terry admitted that he violated a condition of his
No. 13-5895
United States v. Terry
supervised release by committing the drug-trafficking offense, to which he had pleaded guilty in
state court and received a ten-year sentence reduced to time served. Based on Terry’s Grade A
violation and criminal history category of VI, the sentencing guidelines called for a range of
33 to 41 months of imprisonment. As the district court determined, that range was restricted to
24 months of imprisonment due to the two-year statutory maximum for Terry’s underlying Class
C offense. See 18 U.S.C. § 3583(e)(3). Terry requested that the district court credit the time
served in state custody against any federal sentence. The district court sentenced Terry to
24 months of imprisonment, with no further supervision, and expressly left the calculation of
credit for time served to the Bureau of Prisons (“BOP”).
In this timely appeal, Terry challenges his 24-month sentence as procedurally and
substantively unreasonable. We review sentences imposed upon revocation of supervised release
in the same way that we review sentences imposed upon conviction—for procedural and
substantive reasonableness under a deferential abuse-of-discretion standard. United States v.
Bolds, 511 F.3d 568, 578 (6th Cir. 2007).
We “must first ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence
. . . .” Gall v. United States, 552 U.S. 38, 51 (2007). Terry contends that his sentence is
procedurally unreasonable because the district court (1) failed to discuss the pertinent sentencing
factors set forth in § 3553(a) and (2) failed to provide an adequate explanation for denying his
request for a concurrent sentence and ordering his sentence to run consecutively.
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No. 13-5895
United States v. Terry
Under 18 U.S.C. § 3583(e), the district court, upon finding by a preponderance of the
evidence that the defendant violated a condition of supervised release, may revoke the
defendant’s supervised release and impose a term of imprisonment after considering certain
sentencing factors set forth in § 3553(a). However, when revocation and imprisonment are
mandatory under § 3583(g) because, as here, the defendant possessed a controlled substance,
“the statute does not require consideration of the § 3553(a) factors.” United States v. Giddings,
37 F.3d 1091, 1095 (5th Cir. 1994). See also United States v. Doe, 617 F.3d 766, 772 (3d Cir.
2010) (“While § 3583(g) does not expressly require consideration of the § 3553(a) factors, it
does not prohibit the sentencing court from doing so.”). The only limitation in § 3583(g) is that
the sentence not exceed the statutory maximum authorized under § 3583(e)(3), which is two
years in Terry’s case. See § 3583(g)(4).
In any event, the district court considered the § 3553(a) factors, including the policy
statement range and its restriction due to the statutory maximum, Terry’s significant criminal
history, which placed him in criminal history category VI, and his dealing cocaine while on
supervision, which implicated the need to deter criminal conduct and protect the public. During
the sentencing portion of the hearing, Terry’s only request was that the district court give him
credit for time served in state custody. The district court acknowledged Terry’s request, pointing
out that he received state credit for that custody, and declined to calculate any credit for time
served, leaving that calculation to the BOP. By considering the relevant § 3553(a) factors and
addressing Terry’s sole argument, the district court imposed a procedurally reasonable sentence.
See United States v. Cochrane, 702 F.3d 334, 345 (6th Cir. 2012) (citing Rita v. United States,
551 U.S. 338, 358 (2007)).
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No. 13-5895
United States v. Terry
Terry further argues that his sentence was procedurally unreasonable because the district
court failed to provide an adequate explanation for denying his request for a concurrent sentence
and ordering his sentence to run consecutively. At the time that the district court imposed
Terry’s 24-month sentence upon revocation of his supervised release, Terry was not serving any
other sentence. Terry’s state sentence had already been reduced to time served. Therefore, there
were no multiple sentences to run consecutively or concurrently. As for any credit for time
served, the district court properly left that calculation to the BOP. See United States v. Crozier,
259 F.3d 503, 520 (6th Cir. 2001) (“[T]he power to grant credit for time served lies solely with
the Attorney General and the Bureau of Prisons.”).
“A sentence may be considered substantively unreasonable when the district court selects
a sentence arbitrarily, bases the sentence on impermissible factors, or gives an unreasonable
amount of weight to any pertinent factor.” Cochrane, 702 F.3d at 345 (quoting United States v.
Conatser, 514 F.3d 508, 520 (6th Cir. 2008)). Terry contends that his sentence was substantively
unreasonable because the district court based the sentence on his new drug-trafficking offense
rather than his original felon-in-possession offense.
“[T]he United States Supreme Court has specifically explained that ‘postrevocation
penalties relate to the original offense,’ rather than the violation conduct.” United States v.
Johnson, 640 F.3d 195, 203 (6th Cir. 2011) (quoting Johnson v. United States, 529 U.S. 694, 701
(2000)). As we stated in Johnson:
The violations of a defendant’s term of supervised release are properly
characterized as “breach[es] of trust” which may be “sanctioned” upon
revocation. 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. (quoting U.S.S.G. Ch. 7, Pt. A) (internal citation omitted).
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No. 13-5895
United States v. Terry
In the instant case, the district court stated: “Also the court cannot have people on
supervision dealing cocaine. That’s just—it’s just not possible for me to give reduced sentences
to cocaine dealers while they’re on supervision.” (emphasis added). The district court focused
on Terry’s breach of trust in failing to comply with the conditions of his supervised release and
properly sanctioned him for that breach.
For the foregoing reasons, we AFFIRM Terry’s 24-month sentence as procedurally and
substantively reasonable.
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