1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0059p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

D ONALD R. M ELTON , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 13-6649

Appeal from the United St ates District Court for the Eastern District of Kentucky at Ashland No. 0:08-cr-00007-12—David L. Bunning, District Judge. Argued: January 13, 2015 Decided and Filed: April 3, 2015
Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

_________________ COUNSEL

ARGUED: Zenaida R. Lockard, FEDERAL PUBL IC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant. Kathryn M. Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Zenaida R. Lockard, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appe llant. Charles P. Wisdom, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee.

_________________ OPINION

_________________ CLAY, Circuit Judge. Defendant Donald R. Melton appeals the district court judgment sentencing him to an eighteen-month term of im prisonment followed by three additional years of supervised release for violating th e conditions of his original term of supervised release. We
AFFIRM for the reasons set forth below. 

### >13-6649 United States v. Donald R. Melton Page 2

I. In 2009, Defendant pleaded guilty to conspiracy to distribute oxycodone, in violation of 21 U.S.C. § 846. He was sentenced to a ten-m onth term of imprisonment followed by a threeyear term of supervised release. The conditions of Defendant’s supervised release prohibited him from committing another crim e and from possessing, using, or distributing any controlled substance. He was also required to attend substa nce abuse treatment and submit to periodic drug and alcohol testing.
Within months of being released from pris on, Defendant began viola ting the terms of his supervised release. He stopped attending substa nce abuse treatment, he admitted to his probation officer that he used a controlled substance, an d he was ultimately arrested by local authorities and found guilty of two counts of tra fficking in a controlled substance.
After serving his time in stat e prison for the trafficking o ffenses, Defendant was brought before a federal magistrate judge for violating conditions of supervised release. Defendant admitted to the aforementioned violations in op en court. The magistrate judge recommended that Defendant be sentenced to an eighteen -month term of imprisonment followed by an additional three-year term of supe rvised release, less time served. The district court adopted the magistrate judge’s findings, revoked Defend ant’s supervised release, and imposed the
recommended sentence.13-6649 United States v. Donald R. Melton Page 3

II.
Defendant appeals the distri ct court’s judgment on both procedural and substantive grounds. He argues that his admission that he vi olated his supervised release conditions was involuntary because the magistrate judge did not conduct a complete Rule 11 colloquy, which would have required informing Defendant of his full sentenci ng exposure, i.e., the maximum custodial sentence and the maximum term of supervised release. 1 See Fed. R. Crim. P. 11(b)(1)(H). He also argues th at his eighteen-month custodial se ntence and additional term of supervised release are substantiv ely unreasonable in that they are longer than necessary to satisfy the purposes of sentencing. We disagree with both contentions.

A. Rule 11 Claim
Federal Rule of Criminal Procedure 11, by its pl ain terms, only applies to the procedures a court must follow before accepting “a plea of guilty or nolo contendere.” Fed. R. Crim. P. 11(b). “[N]othing in the advisory committee not es suggests the rule’s applicability when a court accepts admissions of probation or supervised release violations.” United States v. Pelensky , 129 F.3d 63, 67–68 (2d Cir. 1997). 2 In fact, a different provision, Rule 32.1, prescribes the procedures a court must follow wh en considering revocati on or modification of a term of supervised release. See Fed. R. Crim. P. 32.1. It makes sense that the procedures for guilty pleas and supervised release admissions are different because revocation proceedings are not considered part of a criminal prosecution, see Gagnon v. Scarpelli , 411 U.S. 778, 782 (1973), and the full panoply of protections accorded a defe ndant in criminal prosecutions do not apply to revocation proceedings, see United States v. Dodson , 25 F.3d 385, 388 (6th Cir. 1994). 3 The

1 At oral argument, Defendant for the first time advanced the argument that his revocation proceeding also contravened the requirements of due process because he wa s not apprised of his full se ntencing exposure. Because Defendant did not present this due process argument in his briefing before the Court, we do not consider it. See Rose v. State Farm Fire & Cas. Co. , 766 F.3d 532, 540 (6th Cir. 2014) (internal quotation marks omitted) (“[A]n appellant abandons all issues not raised and argued in its initial brief on appeal.”).

2 We have, on occasion, imprecisely referre d to these admissions as guilty pleas. See, e.g., United States v. Steeby , 350 F. App’x 50, 51 (6th Cir. 2009). However, the “pleas” contemplated by Rule 11 concern only those made at arraignment. See Fed. R. Crim. P. tit. IV; United States v. LeBlanc , 175 F.3d 511, 515 n.2 (7th Cir. 1999).

3 For example, a criminal defendant is generally guaranteed a right to trial by jury, see U.S. Const. amend. VI; Duncan v. State of La. , 391 U.S. 145 (1968), whereas supervised release violations are determined by the court,
see 18 U.S.C. § 3583(e)(3); United States v. Johnson , 356 F. App’x 785, 790–91 (6th Cir. 2009).13-6649 United States v. Donald R. Melton Page 4
case law also points in this direction inasmuch as se veral of our sister circuits have addressed this same question and concluded that Rule 11 is not applicable to supervised release revocation proceedings. See, e.g., United States v. Shannon , 508 F. App’x 559, 560 (7th Cir. 2013); United
States v. Martisko , 398 F. App’x 888, 889 (4th Cir. 2010); United States v. Correa-Torres , 326 F.3d 18, 23 (1st Cir. 2003); Pelensky , 129 F.3d at 67–68.

In Pelensky , the Second Circuit rejected the defendant ’s claim that the district court was required to engage in the type of voluntariness colloquy required by Rule 11 before accepting his admission to violating the terms of his supervis ed release. 129 F.3d at 67–68. After noting that four circuits had previously held that a Rule 11 voluntarine ss colloquy was not required in probation revocation proceedings, the court went on to point out that Rule 11 “is addressed to the taking of the plea, not the imposition of sentence or the revocation of probation or supervised
release.” Id. at 68 (internal quotation marks omitted). In addition to the absence of textual support for the defendant’s claim, the Second Circ uit provided practical reasons why a formal voluntariness colloquy would be ill-suited to supe rvised release revocation proceedings. The court explained:
In contrast to the adversarial setting that characterizes the offering of a guilty plea, a revocation of supervised release pro ceeding features the involvement of the probation officer, who is responsible fo r representing the [accused’s] best interests to the greatest extent possible consistent with the welfare of the community. The responsibilitie s of the probation officer can best be carried out in a less adversary and contentious atmos phere. To superimpose formalistic procedures such as a Rule 11 colloquy onto this context, however much it may be sound practice for judges to elicit some indication of voluntar iness for the record, is neither required by due process nor necessarily condu cive to a more effective accomplishment of the goals of prob ation or supervised release.
Id. (internal quotation marks omitted). The Second Ci rcuit ultimately held that Rule 11 is never applicable in the supervised release context. Id. at 67–68.

In Correa-Torres , the First Circuit reached a simila r conclusion. 326 F.3d at 23. The court first acknowledged that a su pervised release revocation pro ceeding is separate and apart from a criminal prosecution even though both en tail the potential for depr ivation of liberty. Id. at 22. The court next determined that “fundament al fairness” requires that persons facing supervised release revocations be afforded some rights in that process, even though they are not13-6649 United States v. Donald R. Melton Page 5
entitled to every right attendant in a criminal prosecution. Id. (citing Bearden v. Georgia , 461 U.S. 660, 669 & n.10 (1983)). Then, reviewing th e procedural protections afforded by Rule 32.1, the court concluded that those rights protect the interests of both the accused and the government. Id. Lastly, the court noted that most rights can be waived in our criminal justice system, and that “[a]s a general pr oposition . . . the waiver of virt ually any right closely affecting individual liberty must be know ingly and voluntarily made.” Id. (collecting cases). Accordingly, the First Circuit held that a waiver of Rule 32.1 rights is only effective when it is both knowing and voluntary. Id. But, in keeping with its earlier observation that a revocation proceeding is different from a criminal prosecution, the court also held that “a formal colloquy of the depth and intensity required under Federal Rule of Criminal Procedur e 11” is no t necessary for a Rule 32.1 waiver to be deemed knowing and voluntary. Id. at 23.
The Fourth Circuit, relying on the maxim that “‘the full pano ply of procedural safeguards
associated with a criminal trial’ are not required during [revocati on] proceedings,” has also held that Rule 11 is not applicable in the supervised release context. Martisko , 398 F. App’x at 889 (quoting Black v. Romano , 471 U.S. 606, 613 (1985)). The Seve nth Circuit based its identical conclusion on the plain language of Rule 11 and Rule 32.1. See Shannon , 508 F. App’x at 560 (citing LeBlanc , 175 F.3d at 516–17).
Defendant argues that we should not follow the Second Circuit’s holding in Pelensky (and the similar rule adopted by ot her circuits) because the court was simply extending its prior holding that Rule 11 does not apply to probation revocation proceedings. 4 129 F.3d at 67–68. Defendant contends that following the Second Ci rcuit would undermine th is Court’s previous recognition that “there is an inherent difference between proba tion and supervised release.” United States v. Wright , 2 F.3d 175, 179 (6th Cir. 1993) (citing United States v. Stephenson , 928 F.2d 728, 730 (6th Cir. 1991)). This argument is unpersuasive.

The “inherent difference” between probation and superv ised release is that each has its own sentencing scheme upon revocation. Id. ; Stephenson , 928 F.2d at 730–31. This unremarkable observation does not negate the fact that the text of Rule 11 does not indicate that

4 Several circuits have held that Rule 11 does not apply to probati on revocation proceed ings, which (like supervised release proceedings) are explicitly governed by Rule 32.1. See, e.g. , United States v. Segal , 549 F.2d 1293, 1296 (9th Cir. 1977).13-6649 United States v. Donald R. Melton Page 6
it applies to supervised release revocation h earings; nor does the observation undermine settled doctrine that the accused in a revocation pro ceeding is not entitled to all the procedural protections afforded a criminal defendant—the two primary bases underlying the holdings of our
sister circuits.
In an unpublished opinion, this Court considered the totality of th e circumstances when deciding whether an admission to a supervised release violati on was knowing and voluntary, and determined that Rule 11 was not applicable. See United States v. Williams , 321 F. App’x 486, 490 (6th Cir. 2009). 5 We take this opportunity to join the First, Second, Fourth, and Seventh Circuits, and hold that a court’s acceptance of an admission to a s upervised release violation, or stated differently, a court’s acceptance of a waiv er of the right to contest the revocation of supervised release, is not governed by Federal Rule of Criminal Procedure 11.

Instead, the accused’s admission or waiver need only be knowing and voluntary under the totality of the circumstances. See Williams , 321 F. App’x at 490 (citing United States v. Rhoad , 102 F. App’x 918, 919 (6th Cir. 2004)); see also Shannon , 508 F. App’x at 560 (holding that waiver of a supervised releas e revocation hearing need only be knowing and voluntary under the totality of the circumstances); United States v. Hodges , 460 F.3d 646, 651 (5th Cir. 2006) (adopting a totality of the circum stances approach to determining whether waiver of Rule 32.1(b) rights is knowing and voluntary); United States v. Farrell , 393 F.3d 498, 500 (4th Cir. 2005) (internal quotation marks omitted) (“supervised release cannot be revoked without a full hearing unless the defendant knowingly an d voluntarily admits to the alle gations against her and waives her rights under Rule 32.1”); Correa-Torres , 326 F.3d at 23 (internal quotation marks omitted) (“Where, as here, a . . . person on supervised release mounts a retrospe ctive challenge to the validity of a waiver of Rule 32.1 rights, a reviewing court should look not only to the punctilio of the sentencing court’s colloquy with the . . . person on supervised release, but also to the totality of the attendant circumstances.”). Whether th e lower court apprised the accused of his Rule

5 A court considering revoking an accused’s term of supervised release must hold a hearing before ruling unless the accused waives the hearing and adm its to the supervised release violation. See Fed. R. Crim. P. 32.1(b)(2). Thus, a challenge to the voluntariness of a revocation hearing waiver is synonymous with a challenge to the voluntariness of an admission to a supervised release violation, and vice versa. In Williams , the issue is framed as whether the revocation hearing wa iver was knowing and voluntary, see 321 F. App’x at 490, but, as has been demonstrated, it is equally correct to say that the Court was deciding whether the admission to the violation was knowing and voluntary.13-6649 United States v. Donald R. Melton Page 7
32.1(b) rights and the consequen ces of waiving those rights, see Rhoad , 102 F. App’x at 919, evidence regarding the accused’s compre hension of the charges against him, see Correa-Torres , 326 F.3d at 23, and his understandi ng of the possible sentence, see LeBlanc , 175 F.3d at 517, are among the circumstances we may consider in conducting this analysis. Still, “[t]he totality of the circumstances means exactly that—all the circum stances should be considered,” and “courts should beware of assigning talismanic significance to any single fact or circumstance” as “each case is quite likely to be sui generis.” Correa-Torres , 326 F.3d at 23.
In this case, Defendant argues that his admission to the alleged supervised release violations was involuntarily due to the district court’s failure to conduct a Rule 11 colloquy. Because Rule 11 is not applicable in supervised release proceedings, Defendant’s claim necessarily fails.
Defendant’s claim also fails under the totality of the circumstances standard. At the revocation proceeding, defense counsel declined the magistrate judge’s offer to formally review the alleged violations and potential penalties with Defendant, stating that Defendant was familiar with the penalties he faced. During the hearing, the magi strate judge gave Defendant an opportunity to review the superv ised release violati on report prepared by th e probation office in order to ensure that Defendant “fully [understood] the charges . . . and the penalties that [he] face[d].” [R. 530, Tr., PG ID 1753]. The report noted that two years was the maximum term of imprisonment to which Defendant could be subj ect if the court found that he violated the conditions of his release. The report also explaine d that he would be subject to “not less than 3 years” of supervised release and that there wa s “no maximum term of s upervised release that [could] be reimposed.” [R. 534, Violation Wo rksheet, PGID 1786]. Defendant reviewed the report, discussed it with his attorney, and confirmed with the magistrate judge that he understood the report and still inte nded to admit to the violations. Th e magistrate judge also informed Defendant of the rights he would be waiving by admitting to the violations and the consequences of that waiver. Indeed, as Defendant’s appellate counsel noted at oral argument, the magistrate judge conducted “a very thorough colloquy” before it accepted Defendant’s admission that he
violated various conditions of hi s supervised release. The tota lity of the circumstances of the
record reflects that Defendant know ingly and voluntarily stipulated to having violated supervised release and waived his right to contest revocation at the hearing.13-6649 United States v. Donald R. Melton Page 8

B. Substantive Reasonableness Claim
Defendant’s next argument is that his eigh teen-month custodial sentence and additional term of supervised release are substantively unreasonable because they are longer than necessary to fulfill the purposes of sentencing. Specifically, he contends that he was able to overcome his chemical dependence and rehabilitate himself dur ing his state incarcera tion, and therefore the rehabilitative ends of supervised release ha ve been met. The government argues that the sentence is substantively reasonable based on the nature of Defendant’s violations and the district court’s findings of fact. The government also re lies on the fact that Defendant’s guideline range of imprisonment was fifteen to twen ty-one months and that he was subject to, at minimum, an additional three y ears of supervised release.
Sentences imposed upon revocation of supervised release are reviewed for an abuse of
discretion. United States v. Mosher , 493 F. App’x 672, 675 (6th Cir. 2012) (citing United States
v. Bolds , 511 F.3d 568, 575 (6th Cir. 2007)). “This de ferential standard is comprised of two parts: procedural soundness and substantive reas onableness.” Id. “In reviewing for substantive reasonableness, we must consider the sentence imposed in light of the totality of the
circumstances.” United States v. Johnson , 640 F.3d 195, 202 (6th Cir. 2011) (internal quotation marks omitted). “A sentence is substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on imperm issible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” United States v. Kirchhof , 505 F.3d 409, 413 (6th Cir. 2007) (internal quotation marks omitted). “[A] sentence that is within the advisory guidelines range . . . is accorded a rebuttable presumption of
reasonableness.” Id. at 414. The standard is the same re gardless of whether the sentence was imposed following conviction or revo cation of supervised release. United States v. Deen , 706 F.3d 760, 762–63 (6th Cir. 2013).
The court took full account of the pertinent § 3553(a) factors and the totality of the circumstances in determining Defendant’s sentence. See 18 U.S.C. § 3583(e) (directing courts to consider specific § 3553(a) fact ors in the revocation context); see also United States v. Bridgewater , 479 F.3d 439, 442 (6th Cir. 2007) (“Not a ll [factors] are important in every sentencing; often one or two prevail, while othe rs pale.”). The magistrate judge based his13-6649 United States v. Donald R. Melton Page 9
sentencing recommendation on the fact that De fendant stopped attending mandated substance abuse treatment, illegally used oxycodone, traffick ed in controlled substances, and was convicted of two felony offenses while on su pervised release. The magistra te judge also to ok into account
Defendant’s status as a “Persi stent Felony Offender in Kentucky” as evidence of an unyielding pattern of criminal behavior. In addition, the magistrate judge expressed skepticism regarding the sincerity of Defendant’s contrition. In re sponse, Defendant has pointed to nothing in the record that overcomes the “p resumption of reasonableness” due to his within-guidelines

sentence.

III.
For the foregoing reasons, Defendant’s sentence is AFFIRMED

.