NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0175n.06
No. 22-1602
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Apr 19, 2023
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee,
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v.
) COURT FOR THE EASTERN
REGINALD RAYNARD IRBY, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. ) OPINION
)
)
)
Before: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Reginald Irby appeals his
30-month sentence for violation of supervised release, arguing that it is both procedurally and
substantively unreasonable because the district court failed to sufficiently address the factors set
forth in 18 U.S.C. § 3553(a) and heed its requirement that his sentence not be greater than
necessary to achieve the goals of 18 U.S.C. § 3553(a). We AFFIRM.
I.
In June 2017, Irby pled guilty to one count of conspiracy to possess a controlled substance
with intent to distribute in violation of 21 U.S.C. § 841(a)(1). After serving the custodial portion
of his sentence, he began a four-year term of supervised release in March 2020.
Irby violated the terms of his release several times. In April 2021, he hit a parked car while
intoxicated, fled the scene, invaded a woman’s home, and hid from the police in her bedroom. The
district court responded by restricting the terms of Irby’s supervised release, including placing Irby
No. 22-1602, United States v. Irby
on location monitoring, implementing curfews, and establishing inclusion/exclusion zones.
According to Irby’s probation officer, he frequently violated these conditions.
Then, in October 2021, a probation officer caught Irby falsifying a drug test. A second test
yielded positive results for cocaine and marijuana, and Irby admitted that he had been falsifying
his drug tests for several months. One month later, in November 2021, Irby told his probation
officer he had COVID-19 and would be quarantining. The next day, police observed Irby
conducting a drug transaction in the parking lot of a hotel. Officers interrupted the transaction and
found a bag of Oxycodone pills and a bag of crack cocaine rocks on Irby’s person. He was also
chewing and attempting to swallow a small item, later identified as a pack of crack cocaine. Irby
consented to a search of his hotel room, where officers discovered more Oxycodone and other pills
identified as Amphetamine. The district court issued an emergency warrant for Irby’s arrest.
At his revocation hearing a few months later, Irby admitted to violating the terms of his
supervised release. The parties agreed, and the district court found, that the Guideline range for
Irby’s violation was 24-30 months, with a statutory maximum of three years. The prosecution
requested a sentence within the Guidelines, noting that Irby had a long history of selling drugs, but
conceding that he deserved credit for admitting responsibility. Defense counsel requested a one-
year sentence, explaining that Irby was a father and grandfather, had been addicted to crack since
he was sixteen, and suffered significant health issues. Irby told the sentencing court that he was
initially doing well on supervised relief, and had obtained a job as a truck driver for the Salvation
Army, but reverted to his “old ways” when he was laid off due to COVID-19. R. 149, PID 555-
56.
The district court revoked Irby’s supervised release and sentenced him to 30 months in
prison, explaining:
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The Court has to impose a sentence that will be sufficient and not greater than
necessary to accomplish the sentencing goals of the statute and the Court takes into
account protecting the public from further crimes of the defendant and deterring
others who would imitate his wrongful conduct and also redress the breach of trust
that a violation of supervised release represents.
The Court is concerned given the defendant’s poor performance on supervised
release that he simply has not been willing or able to turn the corner on a long
history of offending and re-offending and that’s unfortunate because it sounds like
he does have skills and talents that he could put to better use. He did have some
work that he was engaged in and it’s unfortunate that he has reverted to the use of
alcohol and drugs, but ultimately he has to bear the responsibility for having done
that, so the Court believes that a sentence at the top of the guidelines will be
sufficient and not greater than necessary to accomplish the statute’s sentencing
goals, so the Court’s going to impose the following sentence, a sentence of 30
months with the Bureau of Prisons. The Court’s revoking supervised release. The
Court will not reimpose supervised release, does not feel that defendant will benefit
further from it and the Court does believe that a program at whatever facility the
defendant is lodged at involving drug rehabilitation would serve this defendant
well, so the Court would certainly recommend that he be a participant in a program
for drug abuse.
R. 149, PID 556-57. At the end of the hearing, in compliance with United States v. Bostic, 371
F.3d 865 (2004), the district court asked if there were any further objections to the sentence.1 Irby
did not raise any at the time. Irby timely appealed, arguing that his sentence was both procedurally
and substantively unreasonable.
II.
Generally, we “review supervised release revocation sentences in the same way that we
review all other sentences—‘under a deferential abuse of discretion standard for reasonableness.’”
United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007) (quoting United States v. Lalonde, 509
F.3d 750, 769 (6th Cir. 2007)). “[W]hile defendants do not need to raise the claim of substantive
unreasonableness before the district court to preserve the claim for appeal, defendants must do so
1
Bostic “announce[d] a new procedural rule” that “requir[ed] district courts, after pronouncing the
defendant’s sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections
to the sentence just pronounced that have not previously been raised.” 371 F.3d at 872.
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with respect to claims of procedural unreasonableness.” United States v. Penson, 526 F.3d 331,
337 (6th Cir. 2008) (citing United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc)). If a
defendant fails to raise an objection of procedural reasonableness before the district court, plain-
error review applies on appeal. Vonner, 516 F.3d at 385.
A. Procedural Unreasonableness
Irby first raises a claim of procedural unreasonableness. In order for a sentence to be
procedurally reasonable, the district court must have:
(1) properly calculated the applicable advisory Guidelines range; (2) considered the
other [Section] 3553(a) factors as well as the parties’ arguments for a sentence
outside the Guidelines range; and (3) adequately articulated its reasoning for
imposing the particular sentence chosen[.]
United States v. Adams, 873 F.3d 512, 517 (6th Cir. 2017) (quoting Bolds, 511 F.3d at 581).
Because the district court complied with Bostic and asked the parties for objections at the
revocation hearing, and Irby failed to raise any, we review this claim for plain error. Penson, 526
F.3d at 337.
Irby claims that his sentence was procedurally unreasonable because the district court
“failed to sufficiently address the factors set forth in 18 U.S.C. § 3553(a), as they would apply to
this case.” Appellant Br. at 6. He also lists some extenuating circumstances in his favor—like the
fact he was working a legitimate job while on supervised release, and only resorted to drug dealing
after he was fired due to COVID-19—that he claims the district court failed to consider. Id. at 9.
Irby’s arguments are without merit. When imposing a sentence, a district court need not
recite every Section 3553(a) factor, nor engage in their “ritual incantation.” United States v.
Jeross, 521 F.3d 562, 583 (6th Cir. 2008) (quoting United States v. Johnson, 403 F.3d 813, 816
(6th Cir. 2005)). Indeed, “[n]ot all [the factors] are important in every sentencing; often one or
two prevail, while others pale.” United States v. Bridgewater, 479 F.3d 439, 442 (6th Cir. 2007).
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A sentencing judge need only “set forth enough [explanation] to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Jeross, 521 F.3d at 583 (alteration in original) (quoting Rita v. United
States, 551 U.S. 338 (2007)).
The district court satisfied this requirement. After hearing from both sides, and Irby
himself, it discussed Irby’s continued use of illegal drugs and his repeated violations of supervised
release, noting that Irby “simply has not been willing or able to turn the corner on a long history
of offending and re-offending.” R. 149, PID 557. Bearing that history in mind, the sentencing
court explained that it considered the following when imposing a 30-month sentence: “protecting
the public from further crimes of the defendant,” “deterring others who would imitate his wrongful
conduct,” and “redress[ing] the breach of trust that a violation of supervised release represents.”
Id.
Though this explanation was brief, when a sentence is within the Guidelines range—as it
is in this case—the sentencing court “often does not need to provide a lengthy explanation.”
Chavez-Meza v. United States, 138 S. Ct. 1959, 1964 (2018). Here, the sentencing court’s
discussion of Irby’s recidivism and drug use, combined with its express invocation of two relevant
Section 3553(a) factors—protection of the public and deterrence—though brief, is enough to
satisfy us that it considered all relevant factors before imposing sentence. See United States v.
Polihonki, 543 F.3d 318, 323 (6th Cir. 2008) (finding a sentence to be procedurally reasonable
where the district court discussed both the relevant Section 3553(a) factors, as well as the
defendant’s repeated violations of supervised release, his ongoing alcohol abuse, the need for him
to receive both alcohol-abuse and mental-health counseling, and what the court saw as “the high
risk of continued behavior”).
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No. 22-1602, United States v. Irby
Further, contrary to Irby’s argument on appeal, the sentencing court did consider the factors
in Irby’s favor. It noted that Irby was “engaged in” “some work” while on supervised release, and
that Irby had “skills and talents that he could put to better use.” R. 149, PID 557. But, when
considering Irby’s circumstances as a whole, the sentencing court concluded that Irby’s reversion
to drug and alcohol use outweighed those facts, and “ultimately [Irby] has to bear the responsibility
for having done that.” Id.
In sum, the sentencing court gave due consideration to Irby’s arguments, adequately
considered the relevant Section 3553(a) factors, and provided sufficient articulation of its
reasoning for this court to conduct review. It therefore did not commit procedural error under
either the plain-error or abuse-of-discretion standard. See United States v. Martin, 371 F. App’x
638, 641 (6th Cir. 2010) (“Because the district court sufficiently addressed the 18 U.S.C. § 3553(a)
factors to allow for review and responded to [the defendant’s] arguments for a lower sentence, it
did not commit procedural error, plain or otherwise.”).
B. Substantive Unreasonableness
Irby also raises a claim of substantive unreasonableness. A sentence is substantively
unreasonable if 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. Lapsins, 570 F.3d 758, 772 (6th Cir.
2009) (quoting United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008)). Irby claims that his
sentence was substantively unreasonable because it was “greater than necessary to achieve the
goals of 18 U.S.C. § 3553(a).” Appellant Br. at 6. He contends that it would have been “much
more reasonable” for the federal district court to impose the same one-year sentence that he
received in state court for the underlying offense. Id. at 11.
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We afford sentences within the applicable Guidelines range the presumption of
reasonableness. United States v. Vowell, 516 F.3d 503, 509 (6th Cir. 2008) (citing United States
v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006)). Here, the district court not only addressed why it
felt imprisonment, as opposed to further supervised release, was necessary,2 it specifically justified
sentencing Irby to the top of the Guidelines, noting that in light of Irby’s persistent use of drugs
and alcohol in violation of the terms of his supervised release, such a sentence was “sufficient and
not greater than necessary to accomplish the statute's sentencing goals.” R. 149, PID 557. Further,
the sentencing court did not abuse its discretion in weighing Irby’s repeated violations of past
supervised release more heavily than his brief period of legitimate employment, and the fact he
was laid off due to COVID-19. “When a district court adequately explains why it imposed a
particular sentence, especially one within the advisory Guidelines range, we do not further require
that it exhaustively explain the obverse—why an alternative sentence was not selected—in every
instance.” United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006) (emphasis in original) (citation
omitted).
Finally, to the extent that Irby argues that the district court should have matched its federal
sentence to his one-year state-court sentence, the government is correct that “it is impermissible
for a district court to consider the defendant's likely state court sentence as a factor in determining
his federal sentence.” United States v. Boucher, 937 F.3d 702, 712 (6th Cir. 2019) (quoting United
States v. Malone, 503 F.3d 481, 486 (6th Cir. 2007)). Further, as we have explained, to permit
federal courts to rely on state-court criteria would only “enhance, rather than diminish, disparities”
2
The sentencing court explained that based on Irby’s recidivism, the court “[did] not feel that [Irby] will
benefit further from [further supervised release].” R. 149, PID 557.
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among similarly situated federal defendants. Id. Therefore, the district court did not abuse its
discretion by imposing a sentence longer than Irby’s state-court sentence.
III.
For the reasons set out above, we affirm the district court’s sentence.
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