NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0677n.06
Case No. 17-3107
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 07, 2017
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
SYLVESTER MARKS, ) OHIO
)
Defendant-Appellant. )
) OPINION
)
BEFORE: GILMAN, SUTTON, and STRANCH, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Sylvester Marks appeals his sentence of
36 months’ imprisonment for violating the terms of his supervised release. He argues that his
sentence is both procedurally and substantively unreasonable. For the reasons set forth below,
we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
Marks has an extensive criminal history. It began in 1987, when, at age 18, he was
convicted of petty theft and forgery. The following year, Marks was convicted of receiving
stolen property. And in 1989, he was convicted of drug trafficking. He also committed a
robbery that year, for which he received a sentence of 3 to 15 years’ imprisonment.
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United States v. Marks
Marks was later paroled. While on parole, he accumulated numerous violations. His
parole was not revoked, however, until he was charged with attempted robbery, resisting arrest,
and assault on a police officer. Six months’ confinement followed. Marks was released in 2004.
The day after his release, Marks participated in a bank robbery. He was subsequently
arrested and found to be in possession of crack cocaine. Federal charges followed. After Marks
pleaded guilty to receiving stolen property and possessing crack cocaine with intent to distribute,
the district court sentenced him to 151 months in prison to be followed by a three-year term of
supervised release. The court also ordered Marks to participate in a substance-abuse treatment
program while imprisoned.
Marks was released on July 20, 2016. Less than six weeks later, he first violated the
terms of his supervised release when he was arrested for theft, criminal mischief, littering, and
possession of drug paraphernalia—to all of which he pleaded “no contest.” Marks remained in
custody for these offenses until September 3, 2016. Upon his release, he failed to timely report
his arrest to his probation officer. That was Marks’s second violation of the terms of his
supervised release.
His third violation followed two days later, on September 5, 2016, when Marks
committed two more thefts. In that day’s first theft, Marks and another man, later identified as
Troy Martin, entered a “Circle K” convenience store, picked up a case of beer, and took the beer
without paying.
The second theft occurred later that day, when Marks and Martin went to a Dollar
General store. Marks entered the store and indicated that he wished to buy cigarettes. Martin
remained outside. After the store’s clerk handed Marks a ten-pack carton of cigarettes, Martin
entered the store. A dispute ensued. During the dispute, Marks dropped a pack from the carton
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onto the floor. As he bent down to pick it up, Martin grabbed the nine packs remaining in the
carton and ran out of the store. Marks then followed with the pack that he had dropped.
Later that day, a police officer spotted Marks near an apartment building about a mile and
a half from the Dollar General store. The officer questioned Marks about the theft of cigarettes.
When the officer placed his hand on Marks’s arm, Marks pushed it away and started running.
The officer pursued Marks on foot and, with the help of other officers, apprehended him after a
short chase. For the theft from the Dollar General store, Marks subsequently pleaded guilty in
Ohio state court to felony theft. Charges regarding the theft from the Circle K were dropped.
The federal revocation proceeding followed. At the second of two revocation hearings,
the district court heard testimony from witnesses, Marks’s allocution, and the arguments of
counsel. Defense counsel contended that Marks’s “drug and alcohol abuse” and “mental health
history” had played a significant role in his conduct on supervised release. He opined that “Mr.
Marks, instead of using the medication that was prescribed to him, started using illicit drugs to
deal with some of the issues that have plagued Mr. Marks most of his life.” Defense counsel also
informed the court that Marks wanted to “go into a residential drug treatment program” to obtain
the “treatment that he believes that [he] so sorely needs.”
Marks echoed his attorney’s remarks. He stated: “I always used drugs and alcohol, you
know, and any time that I committed my crimes, Your Honor, I always was under the influence
of alcohol and drugs. And I just really want to get some help and try to get my life back on
track.” Marks also explained that he had fled from the officers investigating the Dollar General
theft partly because he “was high and drinking.” He concluded by reiterating, “I just want to
have an opportunity to change my life.”
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When Marks finished his allocution, the district court expressed doubt that he would
benefit from additional supervised release because the Presentence Report (PSR) indicated that
he had done poorly in his prerelease program and shown little interest in rehabilitation. In
particular, the court noted that the PSR reflected the following facts: Marks had exhibited
problems following the rules of the prerelease program. He appeared to have issues with
authority figures. Three times in July 2016, he had shown up late to counseling appointments.
His counselors wrote that he appeared to have significant issues with chemical dependency,
which he refused to address, and that he was very resistant to making any positive changes in his
life. The administrators of the halfway house where Marks had stayed considered his prognosis
poor and deemed him likely to recidivate. They concluded that he was simply going through the
motions of the prerelease program. In the court’s opinion, subsequent events had validated these
assessments.
The district court then explained the reasons for the sentence that it was about to
pronounce:
We have a defendant for all those reasons who cannot be supervised, who
despite whatever efforts we have made or have been made, in a matter of weeks
and days returns to criminal conduct at every turn, and has refused to confront the
issues that bring him here, and makes him a high risk for continued recidivism.
The need for the sentence imposed, and I’ve described in some respects
the nature and circumstances of his record, of his arrests and his criminal conduct
here that brings him here as set forth in the report.
The need for the sentence imposed here is just punishment, adequate
deterrence, protect the public, reflect the seriousness of the offense and improve
the offender’s conduct and condition.
This is a defendant who rehabilitation is not likely, unfortunately, as borne
out in the reports, referencing his time in the halfway house, he’s made no
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progress or little progress, in fact, refused to acknowledge the issues of his drugs
and alcohol abuse.
So, therefore, we have little alternative but to remove him from society for
as long of a period of time as can be removed.
Accordingly, the court varied upward from the Guidelines range of 8 to 14 months’
imprisonment. It imposed the statutory-maximum term of imprisonment—36 months—to run
consecutively to his State sentence, with no term of supervised release to follow.
B. Procedural background
On January 20, 2017, Marks appeared before the district court pursuant to a notice to
appear for a revocation proceeding. He admitted to the three violations described above. Ten
days later, the court imposed the sentence at issue here. This timely appeal followed.
II. ANALYSIS
On appeal, Marks argues that his sentence is both procedurally and substantively
unreasonable. His theory of procedural error is that the district court did not adequately consider
or explain its reasons for rejecting his arguments that he needed treatment for substance abuse
and mental illness. The gist of his challenge to the substantive reasonableness of his sentence is
that the court imposed a term of imprisonment nearly three times longer than the longest term
suggested by the Guidelines and did so in response to relatively minor offenses for which the
State of Ohio did not see fit to incarcerate him. For the reasons set forth below, we conclude that
the circumstances of this case render both of his arguments meritless.
A. Marks’s procedural-reasonableness challenge
In the present case, after the district court pronounced Marks’s sentence, defense counsel
lodged a single objection:
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Your Honor, we would object to the upward variance that the court has imposed
against Mr. Marks, in large measure it appears that Your Honor is motivated by
Mr. Marks’[s] criminal history. Mr. Marks’s criminal history has already been
taken into consideration by the sentencing guidelines or the probation guidelines
as he stands at a Criminal History Category VI.
So the revocation range of 8 to 14 months takes into consideration the fact
that Mr. Marks has the highest criminal history that a person could have, so based
upon that, we would object to the court’s upward variance.
Counsel’s objection focused solely on the district court’s use of Marks’s criminal history
in fashioning his sentence. It did not mention the procedural issue raised on appeal—whether the
court adequately considered Marks’s need for treatment. Accordingly, counsel’s statements did
not adequately apprise the court of the current basis for the objection or afford it an opportunity
to address the purported error. We therefore review Marks’s procedural objection under the
plain-error standard, which is less exacting than the normal abuse-of-discretion standard. See
United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (“A party who neglects to
make an objection, even after being given ‘an opportunity’ to do so, forfeits the argument and
may obtain relief on appeal only if the error is ‘plain’ and ‘affects substantial rights.’” (quoting
Fed. R. Crim. P. 52(b))); see also United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010)
(“Where a party has failed to object to a procedural defect, we review claims of procedural
unreasonableness for plain error.” (citing Vonner, 516 F.3d at 385–86)).
The record shows that the district court fully considered Marks’s arguments regarding his
need for treatment and adequately explained its reasons for rejecting them. At several points, the
court specifically responded to defense counsel’s arguments regarding Marks’s need for
treatment, each time expressing doubt that Marks intended to cooperate with further treatment
efforts. It particularly noted that Marks, during his time in the prerelease program just a few
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months earlier, had consistently refused to acknowledge his substance abuse, shown up late to
counseling appointments, and resisted counselors’ efforts to help him.
The district court thus adequately explained why it rejected Marks’s request for further
treatment and concluded that his incarceration would better serve the public interest. It expressly
considered various § 3553(a) factors and did not plainly err in weighing them. To the contrary,
the record shows that the court engaged in a reasoned and transparent decision-making process.
This leads us to the conclusion that there was no error, much less plain error, in how the district
court dealt with the procedural aspects of Marks’s sentence.
B. Marks’s substantive-reasonableness challenge
We now turn to Marks’s argument that his sentence is substantively unreasonable. Marks
contends that his sentence is substantively unreasonable because (1) it is nearly three times
longer than the longest sentence suggested by the Guidelines, (2) the offenses underlying the
revocation of his supervised release were “low-level” and “non-violent,” and (3) the State of
Ohio did not impose a term of imprisonment for those offenses.
We review the substantive reasonableness of a sentence under the abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). “A sentence may be considered
substantively unreasonable when the district court selects a sentence arbitrarily, bases the
sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an
unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d
508, 520 (6th Cir. 2008). The § 3553(a) factors, which the court “shall” consider, include “the
nature and circumstances of the offense,” “the history and characteristics of the defendant,” and
the need for the sentence “to reflect the seriousness of the offense,” “promote respect for the
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law,” “provide just punishment,” “afford adequate deterrence to criminal conduct,” and “protect
the public.” 18 U.S.C. § 3553(a).
“In reviewing for substantive reasonableness, we must ‘take into account the totality of
the circumstances, including the extent of any variance from the Guidelines range.’” United
States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007) (quoting Gall, 552 U.S. at 51). Although “we
may apply a rebuttable presumption of substantive reasonableness” to sentences “within the
Guidelines,” “[w]e may not . . . apply a presumption of unreasonableness to outside-Guidelines
sentences.” Id. We must instead “give ‘due deference’ to the district court’s conclusion that the
sentence imposed is warranted by the § 3553(a) factors.” Id. (quoting Gall, 552 U.S. at 51).
“The fact that [we] might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal.” Gall, 552 U.S. at 51.
Marks’s basic argument is that his sentence is substantively unreasonable because it
exceeds the high end of his Guidelines range of 8 to 14 months by a factor of almost three. But
this fact must be viewed in context. A relevant factor under § 3553(a)—and one that the district
court expressly considered—is the need for the sentence to reflect the seriousness of the offense.
That “offense” is not the conduct that prompted the revocation, but the offense for which the
defendant was convicted in the first place. United States v. Johnson, 640 F.3d 195, 203 (6th Cir.
2011). In this case, the original offense was a serious one that reflected a troubling pattern of
recidivism, with Marks participating in a bank robbery just one day after he was released from
confinement for a prior offense.
As the Supreme Court recognized in rejecting the use of a rigid mathematical formula to
determine the reasonableness of sentences, “deviations from the Guidelines range will always
appear more extreme—in percentage terms—when the range itself is low.” Gall, 552 U.S. at
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47–48. The district court here was confronted with a defendant’s clear pattern of recidivistic
behavior that repeatedly occurred immediately upon his release. Marks committed the thefts that
violated the terms of his supervised release in the present case only two days after his most
recent release from confinement. At sentencing, Marks’s main argument for leniency was his
need for treatment and support related to mental illness and substance addiction. But, as the
district court noted, Marks had been receiving precisely that assistance when he reoffended, and
his record did not evince any real commitment to the treatment program. In light of Marks’s
recidivistic behavior across many years and following repeated terms of incarceration, we fail to
see how 36 more months imposed now is unreasonable. This is especially true given that
subsequent events have shown the court that Marks’s original sentence was insufficient to deter
him from future criminal conduct.
Turning to Marks’s remaining arguments, we find them unpersuasive. Marks emphasizes
that his new offenses were nonviolent and did not result in his imprisonment by the State. No
doubt these facts weigh in favor of leniency. But they do not necessarily outweigh other salient
facts, such as the haste with which Marks repeatedly reoffended—a fact on which the district
court understandably placed great weight. See Bolds, 511 F.3d at 581 (“[W]e must give ‘due
deference’ to the district court’s conclusion that the sentence imposed is warranted by the
§ 3553(a) factors.” (quoting Gall, 552 U.S. at 51)).
Marks also contrasts his sentence with those that this court approved of in United States
v. Chowdhury, 438 F. App’x 472, 477–78 (6th Cir. 2011), and Johnson, 640 F.3d at 209, in
which the district courts imposed smaller upward variances for offenses that Marks characterizes
as more serious than his own. But those cases, as affirmances, do not establish a ceiling above
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which a court cannot upwardly vary. Nor do they imply that this court would have disapproved
of harsher sentences in those cases.
In addition, Marks selectively ignores facts that obscure the distinctions that he attempts
to draw. For instance, he implies that his own violations were less serious than the defendant’s
in Chowdhury (where this court approved a three-month upward variance) because that
defendant “actually fled the district” and “failed to appear for his revocation hearing.” But
Marks ignores the fact that he himself fled from officers investigating his most recent offense.
That he did not evade capture long enough to leave the district is hardly a distinguishing fact.
Similarly, Marks points to Johnson as an example of a case in which we approved of a smaller
(15-month) upward departure for a more serious violation. But he ignores the fact that the
upward departure in Johnson, like the upward variance at issue here, placed the defendant’s
sentence at the statutory maximum. 640 F.3d at 200. Johnson therefore supports the
government’s position as much as it does his own.
In sum, we conclude that Marks’s sentence is not substantively unreasonable. The
district court therefore did not abuse its discretion in imposing the 36-month term of
imprisonment.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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