NOT RECOMMENDED F OR PUBL I CATI ON File Na me: 13a0359n.06 No. 12-1650 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA,

Plaintiff-Appellee ,

v.

AL VI A WI L L I AMS,

Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN OPI NI ON

Before: GILMA N, ROG ERS, an d SUT TON, Circuit Judges. RONALD LEE GILMA N, Circuit Judge. Alvia Wil liams admittedly violated the terms of his supervised rele ase and was g iven a 36-month sentenc e, the statutory maxi mum, as punishment for the violation. On appea l, Wi lliams arg ues that his sentenc e is substantively unrea sonable. He also contends that the di strict court viol ated his Fifth Amendment ri gh t ag ainst self-inc rimination by improperly rely

ing on his ref

usal to cooper ate with the office rs investigating a shooting in which he wa s injured. For

the re asons set for

th below, we AF F IRM the judg ment of the district cour t. I. BACKG ROUND I n 2003, Wil l i am s p l eaded g uilty to possessing coca ine base (cr ack) with the intent to distribute the drug , in violation of 21 U.S.C. § 841(a) (1), and t o b ei n g a felon in possession of a fi rearm, in violation of 18 U.S.C. § 922(g ). He was also initially char g ed with possession o f aUnited States v. W illiams No. 12-1650 firea rm in further ance of a drug -traf ficking crime, in violation of 18 U.S.C. § 924(c) , which car ried

a mandatory five-y ear consec utive sentenc e, but that char g e was ultimately dismiss ed. At the time that Wil liams was sentenc ed for the offe nses to which he p l ea d ed gu i l ty , he fac ed a statutory minimum sentenc e of ten y ear s under 21 U.S.C. § 841(b)( 1)(B ) due to the quantity of cra ck coca ine involved and his prior felony drug conviction. But the g overnme nt neg lected to file an information pursuant to 21 U.S.C. § 851 that identified Wil liams’s prior felony drug offe nse. As a result of the g overnme nt’s oversig ht, Wil liams fac ed a statutory minimum sentenc e of only five y ear s instead of ten. The district c ourt ultimately sentenc ed him to 78 months of incar cer ation and to f our y ear s of supervised r elea se. Wil liams completed his prison sentenc e and beg an serving his term of supervised rele ase in Fe bruar y 2008. He was subject to sever al conditions, including the following : (1 ) t h at h e “par ticipate in a prog ram approve d by the Probation Depa r tm e n t for substance abuse, which prog ram may include testing” for ong oing drug use; (2) that he not “possess or use any pag er, cellular telephone or other portable elec tronic commu n i cation device ” or be in the social company of any p er s o n in possession of such a device for use in the drug trade ; and (3) that he “re port t o t h e probation office r” and “submit a truthful and complete written repor t” to his probation office r eac h month. Onl y f

iv e mo n th s p a s s e d b efor e Wil liams beg an to violate the terms of his supervised rele ase. He failed to attend u ri n al y sis scre ening s in J uly 2008 and Marc h 2009. Wil liams also stopped repor ting to his probation office r afte r J une 2009. And in J uly 2009, his probation office r discovere d that Wil liams was using a ce ll phone with a North Car olina are a code

. -2-United States v. W illiams No. 12-1650 The probatio n office r’s initial attempts to locate Wil liams wer e unsucce ssful. Wil liams’s mother did not know his wher eabouts, his alleg ed employ er would not return the probation office r’s telephone calls, and Wil liams was discovere d to be regularly trave ling from Detr oit to North Carolina by Gre y

hound bus with tickets purcha sed in another person’ s name. His probation office r also repor ted to the court that Wil liams had been injured in a shooting at a Detroit housing projec t, but that he was unc ooperative with the office rs who wer e investigating the matter and had re fused to tell h i s p ro b at i o n office r why he was in that particula r are a of Detroit. At the reque st of Wil liams’s probation office r, the district c ourt issued a war rant for Wil liams’s arr est in N ovember 2009. Wil liams was fi n al l y ap prehe nded in West Virg inia in April 2012. During his May 2012 supervised- rele ase revoc ation hear ing, he admitted the various violations of his supervised rele ase. His conduct constituted a g rade C violation and he had a criminal history cate g ory of I I I

. The U.S. Sentencing Guidelines called for a sentenc e of 5 to 11 months of i m p ri sonment. See U.S.S.G.§ 7B1.4. But the district court varie d upwar d by imposing a 36-month sentenc e, which was the statutory

maxi mum. II. ANALYSIS A. Stand ard of review A district court may revoke a term of supervised rele ase pursuant to 18 U.S.C. § 3583(e) (3). I n so doing, the court may require the defe ndant to s erve a new term of imprisonment. Id. We revie w sentenc es imposed upon the revoc atio n o f s u p ervised rele ase under the defe rential abuse- of-discr etion standard. United States v. Bolds , 511 F.3d 568, 575 (6th Cir. 2007). An abuse -3-United States v. W illiams No. 12-1650 of discretion ex i sts when we are left with a “def inite and firm conviction that the court below committed a clea

r err or of judgme nt in the co n cl u s i o n it rea ched upon a weig hing of the rele vant fac tors.” United States v. Stephenson , 928 F.2d 728, 732 (6th Cir. 1991) (interna l quotation marks omitted). Although we apply a “pre sumption of rea sonablene ss . . . to sentenc es inside of the Guidelines rang e, there is no presumption against a sentenc e that falls outside of the rang e.” United States v. Tate , 516 F.3d 459, 469–70 ( 6th Cir. 2008) (emphasis in orig inal). The abuse- of-discr etion standard has two components as applied to sentenc ing: proce dural

rea sonablene ss and substantive rea sonablene ss. Bolds , 511 F.3d at 578. Wil liams challeng es only the substantive re asonable ness of his s entenc e. He contends that the di strict court’s rationales for imposing th e s t at u t ory maxi mum sentenc e wer e insufficient, that the court failed to consider his

cra ck-c ocaine sentenc ing- policy argument, and that the court, in violation of his Fifth Amendment rig hts, impermissibly based the sentenc e on his r efusa l to speak with the investigating office rs and his probation office r about the shooting

. B. Williams’s se ntence is substantively reasonable 1. Statu tory m axim um sentence “A sentenc e may be substantively unrea sonable wher e a district court selec ts it arbitra rily , fails to consider pe rtinent fac tors in 18 U.S.C. § 3553(a), or g ives unrea sonable we ight to any one fac tor.” United States v. Nixon , 664 F.3d 624, 626 (6 t h C i r. 2011). I n revie wing for substantive

rea sonablene ss, we “take into acc ount the totality of the circ umstances, including the extent of any varia nce from t he Guidelines rang e.” Gall v. United States , 552 U. S

. 3 8 , 5 1 (2007). A reviewing

-4-United States v. W illiams No. 12-1650 court “may consider the extent of the deviation, but must give due defe renc e to the district c ourt’s decision that the § 3553(a ) fa ctors, on a w hole, justify the extent of the varia

nce.” Id. I n the prese nt case , the totality of the circ umstances indicates that the 36-month sentenc e was substantively re as o nable. The court explained at leng th why it chose to impose the statutory maxi mum sentenc e. I t c onsidered Wil liams’s history and char acte ristics, the nature of the offe nse conduct and “continuing behavior s that are out of compliance with the

. . . supervised rele ase,” the need to protec t the public, and the “princ ipal fac tor” for the court—the need for adequate deter renc e. Wit h respe ct to this latter fac tor, the court rema rk ed that the “orig inal sentenc e had virtually zero eff ect in ter ms of deter

renc e.” The court also commented that Wil liams ha d previously benef itted from a lower sentenc e than his orig inal criminal offe nses war rante d. See United States v. Childress , 468 F. App’x 471, 478 (6th Cir. 2012) (noting that in sentenc ing a defe ndant for violation of his or h er supervised rele ase, a court may , under the Guidelines, impose an upwar d depar ture i f t h e defe ndant’s orig inal sentenc e wa s lenient). These rationale s ref

lect the § 3553(a) fac tors that the district court was obligated to consider. I n imposing a 36-month sentenc e, the court soug ht to deter Wil liams from further criminal conduct in light of his blatant flouting of the terms of his supervised rele ase. I n d ee d , t h e court noted that Wil liams beg an misbehaving “virtually i m m ed i ately ” upon his rele ase. I t explained that it “doubt[ed] that an 11-month sentenc e is sufficie nt under the circ umstances g iven the defe ndant’s y ear s of absconding .” Such rea soning is fully consistent with this court’s holding that a district court may be justified in vary i n g u p wa rd i n sentenc ing a defe ndant who has committed multipl e supervised- rele ase violations. See United Sta t es v. Polihonki , 543 F.3d 318, 326 (6th Cir. 2008) -5-United States v. W illiams No. 12-1650 (upholding as substantively rea sonable an above- Guidelines sent e n c e f o r a d e f e n d ant who repe atedly violated t he terms of hi s supervised relea se); see also United St ates v. Branch , 405 F. App’x 967, 970 (6th Cir. 2010) (holding that an above- Guidelines sentenc e was not substantively unrea sonable when it was impos e d to acc ount for a defe ndant’s multipl e violations of supervised rele ase, including absconding from supervision for one y ear ). We there fore conclude that the district court adequately justified its i mpositi on of the statutory maxi mum sentence

. 2. Crack-coc aine and F air Sent encing Act argum ent Wil liams next contends that the district court disreg arde d his argument that he sho uld rec eive

a more lenient sentenc e beca use his orig inal sentenc e was based on the old, “discre dited” cra ckcoca ine Guidelines. At the revoc ation hear ing, his counsel arg ued that the Guidelines in eff ect prior
t o t h e en actment of t he Fair S entenc ing Act of 2010, Pub. L

. No. 111-120, 124 Stat. 2372 (F S A) ,

wer e unfair and unduly harsh to cra ck-c ocaine offe nders, and counsel urg ed the court to consider the fac t that Wil liams had serve d the full sentenc e imposed under the old Guidelines. Acknowle dg ing the arg ument, the court disag ree d with the proposition that Wil liams’s orig inal sentenc e was unduly harsh. I t also discounted Wil liams’s arg ument that the pre- FSA Guidelines had been “discre dited,”

re m ar k i n g that it believed the chang e to have been “drive n by political influence .” The cou rt commented that it was fre e to disag ree with the policies underly ing the FSA, but further noted that its disag ree ment was a “tang ential point” to the proce eding s. I t also opined that future evidenc e of an “e pidemic of drugdistribution and the further deter ioration of identifiable communities” could “ca use[] another view to be expressed in Congr ess.” On appea l, Wil liams argues that the court failed

-6-United States v. W illiams No. 12-1650 to take his FSA policy argument i n t o co nsideration and that the sentenc e imposed was there fore g reater than ne cessa

ry to achieve the objectives of § 3553(a)

. The above exchang e shows that the district court proper ly considere d Wil liams’s FSA policy arg ument, but simply reje cted it. S ee Uni ted States v. Jones , 489 F.3d 243, 251 (6th Cir. 2007) (“[W] hen a defe ndant raises a particul ar ar gu m ent in seeking a lower sentenc e, the rec ord must ref lect both that the district judge considere d the defe ndant’s arg ument and that the judge explained the basis for reje cting it.” (interna l quotation marks omitted)); see also United States v. Mills , No. 12-5060, 2012 WL 5951489, at *2 (6th Cir. Nov. 28, 2012) (per curiam) (unpublished) (holding that the district court did not improperly reje ct the defe ndant’s FSA policy arg ument based on incorre ct assumptions about the Act by rema rking that cra ck coca ine wa s a p er v as ive problem in the community ; the court instead proper ly considere d the § 3 5 5 3 (a ) fac tors, did not actua lly rely on outdated assumptions about cra ck coca ine, an d ad dresse d the defe ndant’s FSA policy argument); Unit ed States v. Cole , 448 F. App’x 549, 550 (6th Cir. 2011) (finding a revoc ation sentenc e substantively rea sonable wher e the district co u r t a c k n o w ledg ed the defe ndant’s cra ck-c ocaine policy arg ument by

stating “ Iunderstand y

our point” without any

further explanation). I n the prese nt case , nothing about the ex ch an ge betwee n the district court and Wil liams sug g ests that the court based Wil liams’s sentenc e on its persona l views ab o u t t h e rea sons for the FSA’s modification of the Guidelines or the possibili ty that they could be modified ag ain in the future. T he court simply expressed i ts disag ree ment with the proposition that W illiams’s original senten ce wa s u n d u l y harsh under the Guidelines in eff ect at the time, and it declined to adopt Wil liams’s argument for a more lenient sentenc e on his supervised- rele ase violation. I n particula r, -7-United States v. W illiams No. 12-1650 the court noted that, beca

use of the ear lier err or by the g overnme nt, Wil liams had rec eived a lesser sentenc e than he otherwise would have fac ed. Consequently , the orig inal sentenc e wa s actually “moder ate

. . . for the behavior in which Mr. Wil liams engag ed at the time.” The court’s consideration of Wil liams’s FSA policy argument and rea sons g iven for reje cting it provide no basis to conclude tha t the 36-month sentence was imposed ar bitrarily

. 3. Im

perm issible sentencin g factor s Finally , Wil liams claims that the district court considere d impermissible fac tors in imposing the sentenc e. First, he challeng es the court’s considera tion of the fac t of his i n v o l v em en t i n a shooting. Such consideration is not impe rm issible, howeve r, when the district court draw s its

rea soning f

rom “the f

actor s listed in [ §] 3553(a).” United States v. Collington , 461 F.3d 805, 810 (6th Cir. 2006). I n the prese nt case , the district court considere d Wi l l i am s ’s i n v o lvement in the shooting in r elation to his history and char acte ristics as a drugoffe nder, a s well as the fac t that the orig inal sentenc e had not deter red Wil liams from eng ag ing in “hig hly suspicious behavior .” Under
t h e totality of the circ umstances, this consideration was proper . Wil liams had violated sev er al conditions of his supervised re lease and had eng ag ed in c onduct that strong ly sug g ested his re turn to his former life in the drug trade

. I n weig hing the § 3553(a) fac tor s , the district court soug ht to impose a sentenc e that would ade quately deter Wil liams from furthe r cr iminal conduct. Second, Wil liams argues that the district court impermissibly used his silence as g rounds for imposing the “har shest possible sentenc e,” there by violating his Fifth Amendment rig ht ag ainst selfincrimination. The Fifth Amendment provides that no person “ shall be compelled in a ny criminal

case to be a wi t ness ag ainst himself.” U.S. Const. amend. V. Wil liams cites Mitchell v. United -8-United States v. W illiams No. 12-1650 States , 526 U.S. 314 (1999), for t he propositi o n t h at a sentencing court is not permitted t o draw a neg ative infere nce from a defe ndant’s silence. I n Mitchell , the Supreme Court held that a defe ndant who has pleade d g uilty does not waive his or her rig ht to rema in silent at sentenc ing and that the sentenc ing court may not draw an adver se fac tual infere nce from any such silence. Wil liams arg ues, based on this ruling , that the di strict court used his failure to cooper ate with investigating officer s and his probation office r ag ainst him. He does not, howe v er , ci t e an y authority apply ing a noadver se-infe renc e rule to revoc ation hear ings, nor have we located any such case law. The law is thus unclea r as to whether Mitchell ’s no-adve rse- infere nce rule should be extended to the circ umstances in this case . See Minnesota v. Murphy , 465 U.S. 420, 435 n.7 (1984) (conc luding that a revoc ation hear ing “is not a crimin al p ro ce ed ing,” meaning that “the privileg e ag ainst compelled selfincrimination [i s not] available to a probat i o n er , ” at least wher e he seeks only to avoid “the termination of probation”). But even assumi ng that the rule w as applica ble to Wil liams’s revoc ation hear ing, Mitchell is distinguishable beca

use it conce rned the d ra wi n g of a neg ative factual infere nce reg arding the amount of drug s at issue based on the defe ndant’s silence. The district court in the prese nt case , on the other hand, made no fac tual deter minations based on Wil liams’s failure to cooper ate. I t simply considere d Wil liams’s inability to be reha bilitated. And this court has previously noted that Mitchell “does not limit the district court’s ability to consider a wide varie ty of ‘informa tion conce rning the backg round, char acte r, and conduct’ of the defe ndant i n d et ermining an appropr iate sentenc e.” United States v. K

en n ed y , 4 9 9 F.3d 547, 552 (6th Cir. 2007) (quoting 18 U.S.C. § 3661). We there fore decline to hold that the district court based Wil liams’s sentenc e on an impermissible fac tor. -9-United States v. W illiams No. 12-1650 III. CONCLUSION For all of the re asons set for

th above, we AF F IRM the judg ment of the district cour t.

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