NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0159n.06 No. 10-2307 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. ROBERT L EE CHI L DRESS, J R., Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM T HE UNI TED STAT E S DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

OPI NI ON
Before: CLAY, R OGERS, and DONALD, Circuit Judges.

BERNICE B. DONALD, Circuit Judge

. Def endant- Appellant Robert L ee Childress, J r., challeng es the rea sonablene ss of his revoc ation sentenc e afte r he violated the terms of his supervised rele ase. He alleg es that the district court: (1) miscalculate d the violation g rade of his s t ate convictions for the purpose of deter min i n g h i s Gu idelines policy statement rang e; (2) improperly
sentenc ed him to a term of imprisonment above the Guidelines rang e; and (3) improperly imposed h is sentenc e consec utive to rathe r than concur rent with his state sentenc es. For the fo l l o wi n g

rea sons, we AF FI RM.

I

.
On October 17, 2000, a fede ral g rand jury indicted Childress on one count of bank fra ud, 18 U.S.C. § 13 4 4 , and two counts of making false statements, 18 U.S.C. § 1014. These char g esNo. 10-2307

United States v. Childress stemmed from Childress’s scheme to defr aud sever al Michig an banks and a car deale rship by using fra udulent chec ks and misrepre s e n ti n g his cre dit history and social secur ity number in order to secur e loans. On Fe bruar

y 28, 2002, Childress pled g uilty to Count 2 of the I ndictment, which char g ed him with making false statements about his poor cre dit history in order to secur e a loan from a bank. At

a sentenc ing hear ing held J une 13, 2002, the district court sentenc ed Childress t o el ev en months imprisonment consec utive to any state sentenc e, restitution in the amount of $1,454.00, and a fivey ear term of supervision upon his rele ase from prison. As a condition of Childress’s supervised rele ase, the district court admonished that “ [t ]he defe ndant s hall not commit another fe dera l, state or loca l crime” while on supervise d rele ase.
On Marc h 8, 2006, a United States probation office r filed a revoc ation petition alleg ing that Childress violated t he terms of hi s supervised relea se by committing another crime. Specifi ca l l y , the petition alleg ed that on Dec ember 13, 2005, Childress pled g uilty in the Michig an Third J udicial Circuit Court to passing a chec k with insufficient funds over $500. At a hearing on May 9, 2007, the district court decide d not to revoke Childress’s supervised rele ase based on this violation, instead order ing four months home confine ment and continuing the orig inal term of supervised rele ase imposed on J une 13, 2002.

On J une 15, 2010, a United States probation office r filed a second revoc ation petition ag ainst Childress, ag ain alleg ing that he committed crimes in v io la tion of the terms of his supervised rele ase. Acc ording to this petition, Childre s s wa s co n v i cted of crimes in two Michig an counties while on supervised rele ase. On September 25, 2008, Childress was convicted in Oakland County , Michig an, - 2 -No. 10-2307

United States v. Childress of L arc eny by Conversion $20,000.00 or More and Possession of a Motor Vehicle with intent to Pass Fa lse Title. Both char g es stemmed from Childress f raudule ntly obtaining a clea r title on a vehicle

an d then attempting to sell it. For these offe nses, the Michig an court sentenc ed Child re s s t o a

concur rent term of imprisonment of 4 y ear s and 6 months-30 y ear s as well as restitu t i o n i n t h e amount of $56,530.42. Also, on May 18, 2010, Childr es s wa s convicted in Macomb County , Michig an, on one c ount of Fa lse Pretense s $20,000.00 or More. The petition did not elaborate on the fa cts of this c onviction. For the Macomb County offe nse, Childress rec eived a sentenc e of 19- 120 months, to run concurr ent with the Oakla nd County

sentenc e.
On September 30, 2010, the district court he ld a hea ring on Childress’s alleg ed supervised rele ase violations. At the hear ing, the district c ourt pointed out that the policy statement ra

ng e for Childress was 15-21 months based on his Gra de A violation and his criminal history cate g ory of I I

. Childress argued that his violations wer e Gra de B beca use the statutory maxi mums wer e 10 y ear s. For Gra de B violations his policy statement rang e would be 6-12 months. The district court reje cted this argument, finding the statutory maxi mum for one of Childress’s state convictions was 30 y ear s based on the enhanc ement he rec eived as a habitual offe nder. During hi s al locution, Childress explained that he did not believe that he had committed any crimes and that there wer e no “victims” of his alleg ed activities. After exp l ai n i n g that it found Childress’s conduct while on supervised rele ase “about as close to incorrig ible as I have seen,” the district court v ar i ed u p wa rd from the Guideline rang e and sentenc ed Childress to th re e y ea rs in prison to run consec utive to any state sentenc es. On Oc tober 4, 2010, Childress timely filed a N otice of A

ppeal.

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United States v. Childress

I I

.
We revie w revoc ation sentenc es under the defe rential abuse of discretion standard, which asks whether the sentenc e is both proce durally and substantively rea sonable. Gall v. United States, 552 U.S. 38, 51 (2007). A sentenc e is proce durally unrea sonable if the district court fails to calc ulate

or improperly calc ulates the Guidelines rang e, trea ts the Guidelines as mandatory , does not consider the applicable Guidelines rang e or the other fac tors listed in 18 U.S.C. § 3553(a) , selec ts a sentenc e based on clea

rly err oneous fac ts, or does not explain the sentenc e—including any varia nce from the Guidelines ra n ge. Id. ; United States v. Taylor , 648 F.3d 417, 422 (6th Cir. 2011). Substantive

unrea sonablene ss occur s when the district judge chooses the sentenc e arbitra rily , base s it on impermissible fac tors, fails to consider pertinent § 3553(a) fac tors, or g ives an unrea sonable amount of we ight to any

one fa ctor. United States v. Se xton , 512 F.3d 326, 332 ( 6th Cir. 2008).

A.

Childress argue s that the district court incorre ctly deter mined his violation g rade by considering the enhanc ement of his state sentenc e for habitual offe nder status r ather than focusing only on the sentenc e that would be imposed for his crimes alone— a ch al l en g e to the proce dural

rea sonablene ss of the sentenc e. Under § 7B1.1( a) of the Sentencing Guidelines, supervised rele ase

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United States v. Childress violations are classified by three g rade s—A, B, or C—based on the violating conduct. Where there 1

are mul tiple violations, the most serious g rade controls for revoc ation purposes. U.S.S.G. § 7B1.1( b). The violation g rade impa ct s a defe ndant’s policy statement rang e. See Id. § 7B1.4. Childress insists his Michig an convictions wer e Gra de B, not Gra de A, beca use the sentenc e for his conduct alone, without consideration of the serial offe nder enhanc ement, would have been less than 20 y ear s. 2

Whil e we have never direc tly addre ssed whether a habitual offe nder enhanc ement aff ects the deter mination of a Guidelines policy statement rang e for revoc ation sentenc es, we have considere d the use of such enhanc ements in the other sentenc ing contexts. I n United States v. Crace , 207 F.3d 833 (6th Cir. 2000), the defe ndant claimed that the district court’s classification of his conduct was incorre ct beca

use the district court ref

ere nced his prior criminal rec ord to deter mine wheth er his conduct constituted a felony , which the defe ndant claimed was impermissible double counting

. The Six th Circuit disagr eed, noting that the hig her pe nalty for de fenda

nts with prior convictions
(1) Gra de A Violations – conduc t co n s t i t u ting (A) a fede ral, state, or local offe nse 1 punishable by a term of imprisonment exceeding one y ear that (i) is a crime of vi o l en ce, (ii) is a controlled substance offe nse, or (iii) involves possession of a firea rm or destructive device of a ty pe descr ibed in 26 U.S.C. § 5845(a) ; or (B ) any other fede ral, state, o r l o ca l offe nse punishable by a term of imprisonment exceedingtwenty y ear s; (2) Gra de B Vi o l at i o n s – conduct constituting any other fede ral, state, or local offe nse punishable by

a ter m of imprisonment ex cee ding one y ear ; (3) Gr ade C Violations – conduct constituting (A) a fede ral, state, or local offe nse punishable by a term of imprisonment of one y ear or less; or (B ) a violation of any other condition of super vision. L arc eny by conver sion when the value of the s tolen proper ty is $20,000 or m ore carr ies a 2 penalty of no more tha

n ten y ear s. Mich. Comp. L aws §§ 750.362, 750.356(2) (a)

.

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United States v. Childress evidenc es Congr ess’ belief that a d efendant’s prior drug convictions aff ect the sever ity of a subsequent drug possession offe nse. The district court’s use of Crace ’s prior drugconvictions to establish the offe nse leve l of his positive drug scre en and his criminal history cate g ory was not impermi s s i b l e double counting

. These prior convictions wer e used to e stablish both the wrong fulness of the instant of fense and the def endant’ s potential for recidivism. Be cause the base offe nse and the criminal history cate g ory are intended to ref lect differe nt conce rns, we h o l d that the di strict court prope rly

considere d defe ndant’s prior c onvictions in it s sentencing

.
Id. at 838. Whil e Childress has not made a double counting argument in this case , the rea soning in Crace is instructive—enha nceme nts for pri o r o ff

enses are part of the conviction for calc ulating a subsequent super

vised rele ase violation.

Moreove r, other circ uits to ad d re s s t h is question have conclude d that a sentenc ing enhanc ement is part of the conviction. See United States v. Trott er , 270 F.3d 1150 (7th Cir. 2001). I n Trott er , the Seventh Circuit held that enhanc ements for prior con v i ctions should be used to deter mine violation g rade s. The Trott er court asked “how can one deter mine whether an offe nse is ‘punishable’ by a parti cu l ar term without considering all of the ingr edients that set the maxi mum punishment? ” Id. at 1154. I t went on to conclude that:
[US SG 7B1.1] Application Note 1 t o tells the district judge to consider what the person on supervised rele ase did , rathe r than what crimes he has been char g ed with

. Revoca tion of supervised rele as e , in o th e r w o r d s , proce eds on rea l-offe nse rathe r than char g e-of fense principles. A judge eng ag ed in r e a l- o f f e n s e s e n te n c in g d o e s not ignor e prior offe nses that aff

ect the maxi mum punishment; rec idivist enhanc ements are part of re al-off

ense se ntencing

. Id. at 1155 (e mphasis in origia nl).

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United States v. Childress Si mi la r ly , th e Eleventh Circuit upheld using the maxi mum sentenc e under a habitual o f f e n d e r statute, rathe r than the maxi mum sentenc e for the crime alone, when deter mining a violation g rade for a supervised r elea se re vocation. United States v. Boisjolie , 74 F.3d 1115 (11th Cir. 1996) (pe r curiam). In Boisjolie , the court noted that using the enhanc ement “is consistent with the Sentencing Guidelines’ objective of achie ving proportionality in se ntencing throug h tailoring a punishment to fit the individual criminal and cr ime committed.” Id. at 1116.

This case is no d i ff

ere nt than Trott er and Boisjolie

. Michig an law provides for incre ased penalties when a person with two or more prior felonies commits another felony

. See Mich. Comp. L aws §§ 769.11, 769.12. The Michig an court applied this enhanc ement when it sentenc ed Childress for the Oakland County larc eny offe nse. Childress’s “cr iminal conduct was not mere ly the commission of the crime[s]

. . . but rather his commissi on of the [crimes] as a habitual of fende r.” Boisjolie , 74 F.3d at 1116

. Crace , Trott er , an d B o i s j o l i e all make clea

r that the district court was

corr ect to deter

mine Childress’s violation g rade based on the sentence h e re ceived as a serial offe nder. We ag ree with the S eventh and Eleventh Ci rcuits t hat a d ef endant’ s violation g rade for

revoc ati on purposes is based on his sentenc e including any applicable habitual offe nder enhanc ement, not mere ly the sentenc e for the criminal act alone. The district court’s deter mination of the violatio n g rade of Childress’s sentenc e in Oakland County was there fore not proce durally

unrea sonable.

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United States v. Childress B.

Childress aver s that “the district court failed to explain why a sentenc e above the policy rang e

was sufficie nt, but not g reater than nece ssary to satisfy the sentenc ing fac tors of 18 U.S.C. [§] 3553.” Childress’s asser

tion appea

rs to challeng e the proce dural rea sonablene ss of the s en tence in that it questions whether the district court adequately explained the sentenc e and varia nce from the Guidelines ra

ng e . See Taylor , 648 F.3d at 422.

The rec ord must contain sufficie nt evidenc e to demonstrate that the district court considere d the rele vant 18 U.S.C. § 3553(a) fac tors. United States v. Y opp , 453 F.3d 770, 774 (6th Cir. 2006) (c i t i n g Un i ted States v. McB ride, 434 F.3d 470, 476 n. 3 (6th Cir. 2006)). “The distric t co u rt 3 ‘nee d not expli citly ref

ere nce eac h of the § 3553(a) fac tors’ in its sentenc ing deter mination; but there
Section 3553(a) require s a district court to conside r the following fac tors: 3 (1) the nature and circ umstances of the offe nse and the history and char acte ristics of the def endant; (2) the ne ed for

the sentenc e imposed (A) to reflec t the s eriousness of the offe nse, to promote re spect for the law, and to provide just punishment for the of fense ; (B ) to aff ord ade quate de terre nce to c riminal conduct; (C) to protec t the public from fur ther c rimes of the de fenda nt; and (D) to provide the defe ndant with neede d edu cation or vocational training , medical c are , or other c orre ctional treatment in the most effec tive manner ; (3) the kinds of se ntence s available ; (4) the kinds of sentenc e and sentenc ing rang e established for (A) the applicable cate g ory of offe nse committed by the applicable cate g ory of defe ndant as set forth in the g uidelines . . . (5) a ny pertinent policy

statement (A) issued by

the SentencingCommi ssion . . . (6) the need to avoid unwar rante d sentenc e disparities among defe ndants with simil ar rec ords who have been f

ound g uilty

of similar conduc t; and (7) the ne ed to provide r estitution t o any victims of the offe nse. - 8 -No. 10-2307

United States v. Childress must be ‘suffic ient evidenc e in the rec ord to aff irmatively demonstrate the court’s consideration of them.’” Johnson , 640 F.3d at 203 (quoting McBride , 434 F.3d at 475 n.3). On the other ha nd, “if

a sentenc e is outside the advisory rang e, the court is require d by statute to state ‘the specific reason for the imposit ion of a sentenc e differ ent from that descr ibed [i n the applicable Guidelines or policy statements].’” Id. at 205 (quoting 18 U.S.C. § 3553(c)(2) ) (e mphasis in origina l).

Childress’s sentenc e is proce durally rea s o n able beca use the district court adequately explained the basis for the sentenc e and its rea sons for depar ting upwar d from the Guideline rang e. During the sentenc ing he aring , the district court e x plained its rea soning a s follows:

Well, the Court is to consider, along with other fac tors enu m er at ed in the sentenc ing statute, the policy g uideline rang e that’s been deter mined by the Court to be 15 to 21 months in leng th, and in addre ssing the statutory fac tors, the first among those fac tors called upon the Court is for the g ener al circ umstances of the violation, seriousness a

nd the bac kg round cha

rac ter of the defe ndant. The nature of the vi olation is whether it is a Grade A o r Gr ad e B, t he mos t serious violation that an i ndividual on supervised relea se ca n commit. The number one condition, which say s, shall not commit another criminal offe nse , s ta te or fede ral, and in this case is was not just one, but two convictions that have be en committed, and as Ms. R ey

n o l d s pointed out, not just two convictions of various felonies, but fra ud rela ted felonies, the same kind of conduct that resulted in the conviction in this case in the first place , and to further ag g ravate the seriousness of the violations, we had Mr. Childress on violation be fore , and continued the supervision, g ave him the benef it of the doubt, and trusted that – that his ability an d h i s capa city to function succe ssfully and productivity [si c] was beca use of his intelligenc e, I ag ree he has. He g ave me some hope that reha bilitation could o ccur, and he could be a contributor rathe r than a taker in society , but that just hasn’t happene d, and this [i s] just about as close to incorrig ible as I have seen, and the Court has to acc ount for that assessment Ithink in the sentence to be imposed here

. Also the Court needs to consider a sentenc e that would adequately deter Mr. Childress from further criminal conduct. Given the hi story , one wonders how high

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United States v. Childress y ou have to g o to achie ve that. The fac t that this criminal activity could occur while on supervision here is somewhat astounding

. I rec og nize that he has n o t killed any body , and he has not inflicted serious phy sical harm, but he d e f

raud[ed] people, whether they wer e lender s or citizens rea lly I think hardly matters. The fac t that people in our society are expected to be fre e from stealing , defr auding others, and so obviously a signific ant period of time is require d to satisfy those conditions. Rehabilitation eff

orts might be undertaken during his term of co nfinement, and likewise, just to provide protec tion to the people in the community who would be at r isk unless he is discharg ed fr om custody with a whole diff

ere nt attitude. So acc ording ly and pursuant to the Sentencing Reform Act of 1984, the Court will revoke supervision. I ’m g oing to order that y ou serve three y ear s in the custody of the Bur eau of Prisons. That will be consec utive to the leng th that y ou are serving in the State of Michig an. Throughout its explanation, the district court indicated that it considere d the fac tors of § 3553(a)

. I t drew attention to the repe at char acte rist i c of Childress’s offe nses; it highlig hted the previous leniency it had shown Childress; it rec og nized that Childress’s actions did produce victims; and it noted that any penalty was nece ssary to deter Childress and protec t the public from further acts of fra ud. The district court’s ex p lanation of the sentenc e makes it clea r that it considere d the 4 require d fac tors. See U

nited States v. W

ashington , 147 F.3d 490, 491- 92 (6th Cir. 1998).

Fur thermore , the district court provided specific rea sons why an upwar d depar ture from the Guidelines rang e was “suff icient, but not g reater than nece ssary ” to fulfill the purposes of sentenc ing

At the original sentencing on J une 13, 2002, the di s t rict court told Childress: “I hope that 4 y ou understand, Mr. Childress, that as these convictions pile up, y our risk of long term confine ment is i n cr easing , and in fac t the likelihood of long term confine ment is incre asing if y ou continue to hatch sc hemes a

nd play out these scams in the future.”

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United States v. Childress set forth in the § 3553(a) fac tors. The district court labeled Childress’s conduct while on supervised rele ase “incor

rig ible,” and it e x presse d astonishment that “ this c riminal activity could occur while

on s u p er v i sion.” The dist rict court further observe d that the repeat nature of Childress’s offe nses

war rante d a sentence above the Guid el ines rang e to deter Childress from future criminal conduct. Moreove r, the Guidelines specific ally provide that an upwar d depar ture may be war

rante d wher e the defe ndant’s orig inal conduct or prior supervised rele ase violations wer e sentenc ed leniently

. See USSG §§ 7B1.4 n. 4; 7B1.3 n. 1. Childress’s sentenc e was proce durally re as o n ab l e beca use the district court suffic iently

explained the rea sons for the se ntence
.

C.

Whil e C hildress’s brief

does not expli citly

challeng e the substantive reasona bleness of his
sentenc e, to the extent he implicitl y raises th e i s s u e we find the argument without merit. For substantive rea sonablene ss revie w, we “take into acc ount the totality of the circ umstances, including the extent of any varia

nce from the Guidelines rang e.” Gall , 552 U.S. at 51. Whil e sentenc es within the Guidelines rang e can be presum ed rea sonable, courts may not apply a presumption of

unrea sonablene ss to sentenc es outside the Guidelines rang e. Id. A revie wing court “may consider the ext en t of the deviation, but must g ive due defe renc e to the district court’s decision that the § 3553(a) fac tors, on a whole, justify the extent of the varia nce.” Id. Finally , “[t] he fa ct that the appellate court might rea sonably have conclude d that a differ ent sentenc e was approp ri ate is insufficient to justify

reve rsal of the district court.” Id.

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United States v. Childress Considering the totality of the circ umstances surrounding Childress’s revoc ation sentenc e, the dis t ri ct court did not impose a substantively unrea sonable sentenc e. Childress had three convictions while on supervised rele ase, all involving cri m es simil ar to his orig inal fede ral conviction. The district court previously g ave Childress the benef it of the doubt and maintained his supervised relea se. I n imposing a sentenc e of three y ear s when Chi ldress’s Gui d el i nes rang e was 15-21 months, the district court soug ht to impose a sentenc e that would adequately deter Childress from further criminal conduct g iven his history of rec idivism

. This was not an abuse of discretion.

D.

Childress contends that it was unrea sonable for the distr i ct court to run his sentenc e

co n secutive to the state sentenc es. We revie w a district court’s decision to impose a sentenc e

consec utive or concur

rent under the abuse of discretion standard. United States v. Berry , 565 F.3d 332, 342 (6 t h C ir. 2009). A di strict court “does not abuse its discretion when it ‘make s g ener ally clea r the rationale u n d er wh i ch it imposed the consec utive sentenc e and seeks to ensure an appropr iate incre mental penalty for the instant offe nse.’” Id. (quoting United States v. Owens , 159 F.3d 221, 230 ( 6th Cir. 1998)). Section 7B1.3( f) of

the SentencingGuidelines instructs that:
[a] ny term of imprisonment imposed upon the revoc ation of probation or supervised rele ase shall be order ed to be serve d consec utively to any sentenc e of imprisonment that the defe nd an t i s s erving , whether or not the sentenc e of imprisonment being serve d resulted from the conduct that is the basis of the revoc ation of probation or supervised r elea se. - 12 -No. 10-2307

United States v. Childress The policy statements included in Chapter 7 of the Sentencing Guidelines, such as § 7B1.3, are not mandatory and do not limit the sentenc ing discretion of district courts. United States v. Gibbs , 506 F.3d 479, 487-88 (6th Cir. 2007). Nonethele ss, district courts must consider the fac tors enumer ated in § 3553(a) when deter

mining whether to impose a sentenc e consec utive to or concur rent with a

n undischarg ed prior sentenc e. B er r y , 5 6 5 F.3d at 342. The district court does not need to state a specific rea son for apply ing a consec utive sentenc e and does not abuse its discretion when it “make s g ener ally clea

r the rationale under which it has imposed the consec utiv e s en tence .” Johnson , 640 F.3d at 209 (quoting Owens , 159 F.3d at 230).

The previous section’s analy sis of the proce dural and substantive reasonablene ss of Childress’s revoc ation sentenc e in light of the § 3553(a) fac tors is also applicable in deter mining the

rea sonablene ss of the consec utive nature of his sentenc e. The district court provided a clea r rationale for or dering Childress’s revoc ation sentenc e to run consecutive to his state sentenc es. The district
court highlig hted sever al circ umstances war ranting a tough sentenc e: (1) the simil arities betwee n the orig inal conduct a

nd the conduc t that led to revoc ation; (2) the pr evious revoc ation hear ing w here the district court elec ted not to revoke Childress’s s u p er v ised rele ase; (3) the incorrig ibleness of Childress’s conduct; (4) the need to de ter future criminal conduct; and (5) society ’s expectation to be fre e from stealing and not be defr auded. The district court found that a “sig nificant period of time is require d to satisfy those condition s.” The district court rea sonably considere d the sentenc ing fac tors of § 3553(a)

. I t conclude d that a consec utive sentenc e was nece ssary and outlined the rea sons for its dec isions. This was not an abuse of discretion.

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United States v. Childress I I I

.
Be cause we find that the district court did not abuse its discretion in deter mining the violation g rade of Childress’s state offe nses, order ing an above- Guidelines sentenc e of thirty -six months, or order ing a fede ral sentenc e consec utive to Childress’s state sentenc es, we aff irm the district court’s judgme nt of sentenc e.

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