NOT RECOMMENDED FOR PUBLICATION File Name: 21a0556n.06
Case No. 2 1

- 5222
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. TIMOTHY RICHARD COX , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
OPINION

B efore : BOGGS , GIBBONS , and NALBANDIAN, Circuit Judges. NALBANDIAN, Circuit Judge. Timothy Richard Cox was caught with drugs in his car.
T hat conduct v iolated his federal supervised release conditions. The S entencing G uidelines

c lassify conduct that violates release conditions into different grades . And these grades are used to

assess the consequences of th e defendant’s violation. Here, t he district court classified Cox’s
conduct as a more serious Grade B violation rather than a Grade C violation. Cox claims that this was error. But we disagree and AFFIRM

. I. Cox is no stranger to prison. Our story picks up i n 2011, when Cox pleaded guilty in federal

court to distributing morphine and possessing a firearm as a felo n . The district court sentenced him
to 40 months ’ incarceration plus three years of supervised release. S ince then, Co x has had his supervised release revoked no fewer than s ix times because of various violations

. And each time,
the district court sent him back to prison with additional terms of supervised release

.No. 21

- 5222 , United States v. Cox

2

This appeal is about the most recent revocation. In February 202 1 , Cox was out on his sixth supervised release . He was driving around in Paris, Kentucky

. The police pull ed Cox over after smelling the o dor of marijuana coming from his car. T hey saw a marijuana cigarillo at his feet

. And in a purse belonging to a passenger, they found drug paraphernalia, more marijuana, and suspected meth and heroin

. Cox faced four charges : possession of marijuana, possession of drug paraphernalia, and two counts of trafficking in a controlled substance . He eventually pleaded guilty

to an amended charge : facilitation to traffic in a controlled substance , a misdemeanor

. Back in federal court , Cox admitted to violating his release conditions in two ways

. First,
he “commit[t ed ] another federal, state, or local crime.” ( R. 142, Mar. 5, 2021 Hr’g Tr. , PageID 340.) And second, he “communicat e [ d ] or interact[ ed ] with someone that he knows is engaged in criminal activity.” ( Id. at PageI D 342.) The first o ne was “the more serious violation.” ( Id. at PageID 345 .) As Cox saw it, th at first violation matched up as a Grade C violation because his plea was for a misdemeanor

. But t he government explained “that it is not the offense to which [Cox] pled guilty in state court” that matters. ( Id. at PageID 355.) Instead, “[i]t is the actual underlying conduct.” ( Id. ) The district court agreed . And it pegged Cox’s first violation at Grade
B because Cox’s actual conduct included possession in addition to facilitation.
After considering the 18 U.S.C. § 3553(a) factors , the district court sentenced Cox to
21 months’ incarceration and three years of supervised release. T his sits at the middle of the Guidelines range (18 to 24 months). And notably, t he court explained that it would have imposed “that penalty regardless of whether this were a Grade B or a Grade C violation because

. . . it’s necessary to provide proper deterrence to this defendant.” ( Id. at PageID 364

- 65.) Cox ap pealed

.No. 21

- 5222 , United States v. Cox

3 II.
We review the reasonableness of a district court’s sentence “under a deferential abuse

- of

discretion standard.” Gall v. United States , 552 U.S. 38, 41 (2007). That means we will affirm its application of the Sentencing Guidelines to the facts “unless clearly erroneous.” United States v. Simmerman , 850 F.3d 829, 832 (6th Cir. 2017). “S entences must be both procedurally and substantively reasonable.” United States v. Kamper , 748 F.3d 728, 739 (6th Cir. 2014)

. Here, Cox
claims that h is sentence is procedural ly unreasonable. A sentence can be procedurally unreasonable if the district court “fail[ed] to calculate (or improperly calculate[ed]) the Guidelines range.” Id. (quoting Gall , 552 U.S. at 51). Cox argues that’s what happened here. The linchpin of Cox’s claim is that he “ plead[ed] to Facilitation, which
was a class [A] misdemeanor, twelve (12) months or less.” ( Appellant Br. at 14.) T h at , Cox says , lines up as a Grade C violation. This, because Grade C violations cover “conduct . . . punishable by a term of imprisonment of one year or less.” U.S.S.G. § 7B1.1(a)( 3 ). By way of contrast, Grade B violations cover “conduct . . . punishable by a term of imprisonment exceeding one year.” Id. § 7B1.1(a)(2).
But Cox’s argument fail s . This is because “[t]he grade of violation does not depend upon the conduct that is the subject of criminal charges or of which the defendant is convicted in a
criminal proceeding.” Id. § 7B1.1 cmt. n.1

. Instead , it “ is to be based on the defendant’s actual
conduct.” Id. (emphasis added). Put another way, “ hypothetical punishments” are fair game
because “‘conduct’ is broader than ‘conviction’ or ‘crime.’” United States v. Montgomery , 893 F.3d 935, 940 (6th Cir. 2018) ; see also United States v. Schwab , 85 F.3d 326, 327 (8th Cir. 1996) (“ [T]he district court properly looked to [defendant’s] actual conduct in determining the grade of his supervised release violation, rather than the crime to which he plea ded guilty.”) ;No. 21

- 5222 , United States v. Cox

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United States v. Carter , 730 F.3d 187, 191 (3d Cir. 2013) ( clarifying that district courts are “not limited to the actual charges or convictions in determining the grade of the violation”).
Here , Cox ’s conduct constituted a crime punish able with a prison term exceeding one year , even if he was not convicted of it

. His actual conduct went beyond facilitation

. It included possession, as the district court determined

. And u nder 21 U.S.C. § 844(a) , if the defendant has “a prior convic tion for any drug, narcotic, or chemical offense chargeable under the law of any State,” the punishment for simple possession is “ a term of imprisonment for not less than 15 days but not more than 2 years.” 1 Cox already had his 2011 morphine distribution conviction on the books
before his most recent crime

. This plus possession meets the definition of a Grade B violation

.

“ [W] hether [Cox] experienced a separate formal prosecution” for the full scope of his conduct “is
irrelevant.” Montgomery , 893 F.3d at 94 1

. And so we cannot say there was clear error.
E ven if we assume otherwise, Cox still cannot prevail

. T hat’s because Co x would have ended up with the same sentence , with or without a Grade B classification. H armless error applies
if “the record reflects that the district court ‘thought the sentence it chose was appropriate irrespective of the Guidelines range

. ’ ” United States v. Schock , 862 F.3d 563, 569 (6th Cir. 20 17) ( quoting Molina

- Martinez v. United States , 136 S. Ct. 1338, 1346 (2016) ). The only caveat is that “the district court’s explanation must establish that the sentence was ‘based . . . on factors

1 We can look to federal law here and not just Kentucky law. G rade B violations cover any conduct below Grade A constituting a “federal , state, or local offense punishable by a term of imprisonment exceeding one year.” U.S.S.G. § 7B1.1(a)(2) (emphasis added)

. And it does not matter that Cox wasn ’t prosecuted under federal law . Th at’ s because a defendant can be charged with violating his release conditions “ whether or not [he] has been the subject of a separate federal, state, or local prosecution for [his] conduct.” Id. § 7B1.1 cmt. n.1 (emphasis added)

. United States v. Brennick is instructive. 337 F.3d 107 (1st Cir. 2003) . There, the defendant argued that his conduct was a Grade C violation because federal law capped the penalty at one year

. Id. at 110

- 11

. But our sister court took a broader view; it looked towards a more stringent state law and pegged the defendant’s conduct at Grade B

. Id

. Here, we do the same thing , only in reverse.No. 21

- 5222 , United States v. Cox

5

independent of the Guidelines.’” Id. (quoting Molina

- Martinez , 136 S. Ct. at 1347)

. And h ere , the
district court’s explanation does just tha t. The court explained that it would have imposed
21 months’ incarceration “regardless of whether this were a Grade B or a Grade C violation.” ( R. 142, Mar. 5, 2021 Hr’g Tr., PageID 364.) This, because the sentence was “necessary to provide
proper deterrence to [Cox].” ( Id. at PageID 365.) And so any error was harmless. W e AFFIRM.