United States v. Duane Ward

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0794n.06

No. 15-5183

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )
FILED
Dec 04, 2015
)
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
DUANE C. WARD, ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
)

BEFORE: BATCHELDER, MOORE, and ROGERS, Circuit Judges

ALICE M. BATCHELDER, Circuit Judge. Defendant Duane C. Ward appeals the

judgment of sentence revoking his supervised release and sentencing him to an additional prison

term of 24 months, 10 months greater than the applicable Guidelines range. Ward argues that his

sentence is substantively unreasonable because the district court failed to give due consideration

to the evidence of his drug addiction and consequent need of treatment. For the reasons that

follow, we AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

On July 1, 2014, Defendant Ward began a three-year period of supervised release after

serving a two-year sentence for false-claims conspiracy and conspiracy to commit money

laundering. Within three months of his release, Ward had amassed multiple violations of the

terms of his supervision: he was issued a misdemeanor citation for possession of marijuana; he
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United States v. Ward

failed to report the citation to his probation officer within 72 hours of receiving it; he failed to

provide urine samples as instructed by his probation officer on two occasions, and was therefore

discharged from the U.S. Probation Office’s random screening program; he failed to notify his

probation officer within 10 days prior to moving from his reported residence; and he was

terminated from the Drug Court program for failing to comply with program directives,

including failing to appear on two occasions and being charged with possession of marijuana.

Ward pleaded guilty to all of the violations except the misdemeanor citation, which was

dismissed. Due to Ward’s criminal history of VI, and because each remaining violation was a

Grade C, the Guidelines recommended a prison term of 8 to 14 months. U.S.S.G. § 7B1.4. The

government recommended a sentence within the Guidelines range followed by an additional

period of supervision. Ward acknowledged that some prison time was appropriate but requested

a shorter sentence followed by supervision during which he could receive drug treatment. The

district court declined to follow the Guidelines and the parties’ recommendations, instead

revoking Ward’s supervised release and sentencing him to 24 months in prison with no period of

supervision. Ward timely filed this appeal.

II. STANDARD OF REVIEW

We review for abuse of discretion the reasonableness of a sentence revoking supervised

release. United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007); see also Gall v. United States,

552 U.S. 38, 51 (2007) (setting abuse of discretion standard for review of sentences generally).

The same standard applies whether the district court imposed a sentence inside or outside the

Guidelines range. Gall, 552 U.S. at 51. We do not presume that a sentence outside the

Guidelines range is either reasonable or unreasonable, but we “must give due deference to the

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district court’s decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of

the variance.” Id.

III. ANALYSIS

Ward’s sole argument on appeal is that his sentence is substantively unreasonable.

A sentence may be substantively unreasonable if the district court selected it arbitrarily, based it

on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an unreasonable

amount of weight to any pertinent factor. United States v. Martinez, 588 F.3d 301, 328 (6th Cir.

2009).

In choosing to vary upward from the Guidelines range, the district court emphasized the

need to promote respect for the law and the fact that the defendant had committed these

violations almost immediately upon release from prison. See 18 U.S.C. § 3553(a)(1), (2)(A).

The court expressed concern that a defendant could violate the terms of his supervised release so

quickly, and potentially get out of prison before his original period of supervision would have

expired. But the court clearly considered all of the § 3553(a) factors.

On appeal, Ward contends that the district court placed too much weight on his criminal

history and the multiple violations of his supervision, while failing to take into account the

benefits he could gain from a drug treatment program. Ward claims that he accumulated the

large number of violations so quickly because of his unstable living situation when he was first

released, which caused him to relapse into his drug addiction. He thus argues that his sentence

unreasonably discounts the rehabilitation factor. See 18 U.S.C. § 3553(a)(2)(D).

When Ward raised this argument at his sentencing hearing, the court specifically

explained its decision to impose a longer sentence without any supervision. In particular, two

factors convinced the court that supervision would be futile because Ward was not willing to be

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rehabilitated. First, at his initial sentencing, Ward had denied needing drug treatment, claiming

he had not used drugs since his teenage years. This attitude continued on supervision in Ward’s

disregard for the directives of the Drug Court. Second, the court relied on the conclusion of

Ward’s probation officer that Ward was “not amenable to supervision” because he made no

attempts to communicate with the probation office as required. Although Ward argues that these

facts show that he is an addict and needs treatment, the court did not abuse its discretion in

concluding otherwise. Since the district court did not unreasonably weigh the § 3553(a)

sentencing factors, the upward variance was not an abuse of discretion.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM Ward’s sentence revoking his term of supervised

release and imposing a sentence of 24 months’ incarceration.

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