NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0055n.06 No. 11-2314 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA , Plaintiff-Appellee ,

v. CRAI G SANDERS, Def endant- Appellant. ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

/ Be fore : BA TCHEL DER, Chief J udg e, KEI TH and MARTI N, Circuit J udg es. BOYCE F . MARTIN, JR. , Circuit J udg e. This case is about a costly and unfortunate prank call to the U.S. Coast Guar d. Craig Sanders pleade d g uilty to a single -count felony of having made a fa lse distress messag e. The dist rict court sentenc ed him to: two and a half y ear s in prison; three y ear s supervised r elea se with mandatory participa tion in a substance abuse pr og ram with possible drug testing; a specia l assessment of $100 to the court; and $53,306 in restitution to the Coast Guar d. At the sentenc ing hear ing, Sanders’ counsel did not object to any of the aspec ts of the sentenc e that he now challeng es. Sanders arg ues that: ( 1) he suffe red ineffe ctive assistance of counsel when his attorney did not object t o t h e district court’s enhanc ement of his sentenc e; (2) the district court should not have applied an enhanc ement to his sentenc e; (3) the district court improperly deleg ated
to the probation depar

tment the authority to decide whethe r S an d ers should underg o drug testingNo. 11-2314

United States of America v . Craig Sanders Pag e 2 when on s u p ervised rele ase; and (4) Sanders’ sentenc e is proce durally and substantively

unrea sonable. F or the re asons discussed be low, we AF F IRM the district court’s judg ment. We take the fac ts of this case from Sanders’ Presentenc e I nvestig ation Report beca use he did
not object to it. United States v. Vonner , 516 F.3d 382, 384-85 (6th Cir. 2008) (citat i o n s and quotations omitted) (holding that by failing to object to a prese ntence repor t, a defe ndant acc epts all

o f i ts fac tual alleg ations). The Presentenc e I nvestig ation Report rela tes that Sanders call ed t h e United States Coast Guar d’s Searc h and Rescue Controller, Sector Detroit, and repor ted that he had been in a vessel that capsized in the vicinity of L ake Erie. Sanders repor ted that while he had made it to shore, he could not locate his friend who had acc ompanied him. Sanders said he could not tell the Coast Guar d wher e he w as. He then hung up. The Coast Guar d mob i liz ed thi rty -eig ht personne l and a helicopter , and searche d for eight hours until the Coast Guar d’s subseque n t i n v est iga tion showed that the call orig inated in I nkster, MI –about twenty miles inland. The sear ch eff ort cost the Coast Guar d $53,306.16. Sanders pleade d g uilty , without a plea ag ree ment, to communicating a false distress messag e in violation of 14 U.S.C. § 88(c) , a felony which provides for a maxi mum of six y ear s’ imprisonment and a $250,000 fine along with supervised re lease

. The Presentenc e I nvestig ation Report calc ulated a g uideline imprisonment rang e of betwee n

one y ear and nine months to two y ear s and three months; howeve r, the district court varie d Sanders’
sentenc e upwar ds to two y ear s and six months by adding a four -leve l enhanc ement for a hoax that results in a substantial disruption of public or g overnme ntal functions. See U. S

. S

. G. § 2A6.1(b)( 4)(A) -( B)

. I n addition to prison time, the court sentenc ed Sanders to: three y ear s ofNo. 11-2314

United States of America v . Craig Sanders Pag e 3 supervised r elea se with mandatory participa tion in a substance a buse progr am, wit h possible drug testing, approve d by the Probati o n Depa rtment; a specia l assessment of $100 to the court; and $53,306 in restitution to the Coast Guar d. At the sentenc ing hear ing, Sanders’ counsel did not object to any aspec t of the sentenc e that Sander s now cha lleng es on appe al. As an initial matter, we decline to addre ss Sanders’ cl ai m t h at his counsel provided him ineffe ctive assistance

. This Court does not revie w ineffe ctive assistance of counsel claims on direc t appea l except in rar e circ umstances not prese nt in this case . United States v. Sypher , 684 F.3d 622, 626 (6th Cir. 2012). Be cause Sanders’ counsel did not object during the sentenc ing hear ing t o as p ec ts of the
sentenc e that Sanders now challeng es, we must revie w his challeng es under the plain err or standard. I n United St ates v. Bost i c , 371 F.3d 865, 872-73 (6th Cir. 2004), we announce d a new proce dural rule: a district court, afte r pronouncing the defe ndant’s sentenc e, must ask the parties whether they have any objections to the sentenc e just pronounc ed that they have not pr eviously raised. We sa id that when the district court g ives this final opportunity to speak , i f a defe ndant does not clea rly articula te any objection and the g rounds upon which the objection is based, the defe ndant will have forf eited the opportunity to make any objections not previously raised–a nd so will f

ace plain err or revie w on appea l. Id. at 872-73. The purpose of this rule is to ensure that the district court g ives the parties a final opportunity to raise new objections. See United States v. Freem an , 640 F.3d 180, 186 (6th Cir. 2011). Her e, the district court co m p l i ed with Bostic

. After sentenc ing Sanders to two and a half y ear s in prison, three y ear s of supervised rele ase, pay ment of a $100 specia l assessment and $53,306No. 11-2314

United States of America v . Craig Sanders Pag e 4 in restit ution to the Coast Guar d, the court asked: “Doe s either party have any objections to the
sentenc e that they have not previously raised?” Sanders’ counsel did not answe r the district court’s question immediately ; instead, he asked to speak with the court, and the transcr ipt shows that he and the court had an off- the-re cord discussion. After the off- the-re cord discussion, but befor e Sanders’

counse l co u l d speak, the district court stated that there was “one other condition of supervised rele ase” that the district court “should place on the record that should be in the j udg ment; that the defe ndant, while on supervised rele ase, will underg o substance abuse testing and/or trea tment at the discretion of the United States Probation Depa rtment.” The district court apolog ized for interrupting Sanders’ counsel. At that point, Sande rs’ counsel could have objected to a ny part of the sentenc e; instead, he responde d by say ing “I have nothing to ad d , Yo u r Ho nor.” Consequently , beca use Sanders’ counsel did not object afte r the district co u rt g ave him the opportunity to do so, we will apply plain err or revi ew t o all of Sanders’ claims except for his challeng e to the substantive

rea sonablene ss of his sentence

. Under plain err or revie w, Sanders must show that the district court committed: (1) err or; (2) that was obvious or clea

r; (3) that aff

ecte d his substantial rig hts; and (4) that aff ecte d the fairne ss, integ rity or public reputa

tion of the judicial proce eding s. Vonner , 516 F.3d at 386 (quotations and citations omitted). We have said that we will find plain err or only in exceptional circ umstances. Id. The district court did not err in apply ing a four- level enhanc ement to his sentenc e. Section 2A6.1(b)( 4) of the Unit ed S tates S entenc ing Guidelines provides that the offense l ev el for a hoax may be enhanc ed by four levels “[i] f the offe nse resulted i n (A) substantial disruption of public,No. 11-2314

United States of America v . Craig Sanders Pag e 5 g overnme ntal, or business func tions or service s; or (B ) a substantial e x penditure of funds to clean up, decontaminate, or other wise re spond to the offe nse.” U .S.S.G. § 2A6.1(b)(4)( A)-( B)

. Her e, the sentenc ing hear ing transcr ipt shows the district court did not err in apply ing the enhanc ement under U.S.S.G. § 2A6.1(b)( 4)(A) for Sanders’ having cause d a substantial disruption of public or g overnme ntal functions or service s. The district court noted t h at about forty Coast Guar d personne l, including air and land units, sear ched approximately ninety mi l es o f L ake Erie coastline in two states, the State of Michig an and the State of Ohio; the district court conclude d that Sanders’ prank “ca ll was a substantial di s rupt ion of the Coast Guar d

. . . and put the personne l involved at g rea t risk.” I t was not err or, there fore , for the district court to conclude that Sanders’ prank c aused a

substantial disruption to t he Coast Guar d’s oper ations. Next, Sanders arg

u e s th a t th e d istrict court improperly deleg ated to the Probation Depa rtment the authority to decide wh et h er Sanders should underg o substance abuse testing as a condition of supervised rele ase. Sanders arg ues that “[f]i x ing the terms and conditions of probation is a judicial act whic h may

not be deleg ated.” W

hitehead v. U

nited States , 155 F.2d 460, 462 (6th Cir. 1946)

. Neither the district court’s oral pronounce ment at sentenc ing nor the written term in the judgme nt deleg ates to the Probation Dep ar t m en t t he decision whether to require Sanders to participa te in substance- abuse testing or trea tment as a condition of sup er v i s ed release. The judgme nt states that the “def endant shall participa te in a p ro gra m approve d by the Probation Depa rtment for substanc e abuse which progr am m ay include testi ng to deter mine if the defendant has re verte d to the use of dr ug s or alcohol.” But this is not an expl icit deleg ation to the Probation Depa rtment of the decision whether to test Sanders for drug s; rathe r, this provision simply entrustsNo. 11-2314

United States of America v . Craig Sanders Pag e 6 to the discretion of the Probation Depa rtment the dete rmination of the kind of testing that Sanders may be require d to underg o, while rese rving to the court the ultimate decision of whether to require that testing a t all. Sim ilarly , the cour t's pr onounceme nt at s entenc ing directe d that Sanders would underg o substance- abuse testing an d /or trea tment, but left the specific s to the discretion of the Probation Depa

rtment. Next, we revie w for plain err or the proce dural rea sonablene ss of Sanders’ sentenc e. Sanders arg ues that the distr i ct co u rt committed plain err or by stating that it had “re viewed” the
sentenc ing memorandum and the repor ts th a t Sa n d e r s s u b mi tt e d f r o m a p s y c h o lo g is t a

n d p s y c hiatrist. Sanders req u es t s t h at this Court vacate the sentenc e and rema nd it to the district court with instructions that the district court ac tually consider Sande rs’ ne ed for non-custodial tre atment. Our task in deter

mining the proce dural rea sonablene ss of a sentenc e is to “foc us less on what the transcr ipt reve als that the court said and more on what the transcr ipt reve als that the court did.” United States v. Gunter , 620 F.3d 642, 646 (6th Cir. 2010). The district court must have conducte d

a mea ningf ul sentencing hear ing a

nd truly have c onsidered Sande rs’ a rg uments. Id. Her e, the court considere d Sanders’ arg uments–to the extent that h e made any –about his
sentenc e. The sentenc ing hear ing transcr ipt shows that Sanders rea lly did not arg ue that he neede d non-custodial treatment. Rather, San d er s ’ at t orney mere ly told the court that he wanted t he court
to consider the Presentenc e R ep o rt , beca use, in his view, it indicated “that an alterna tive to imprisonment may be more benef icial to society and to my client.” Sanders’ attorney also asked the
court “to consider the two psy chiatric repor ts tha t w ere submitt ed to y ou.” L ater , the district c ourt stated that it had revie wed t h e P re s en t en ce Report and the letters from a psy cholog ist and aNo. 11-2314

United States of America v . Craig Sanders Pag e 7 psy chiatrist which we re at t ache d to the Sanders’ Sentencing Memorandum. The district court complied with Sanders’ attorney ’s reque st that he consider these documents. Thus, the rec ord does not show that the district court er red by depriving Sanders’ of a me aning ful sentenc ing he aring

. L astly , we addre ss Sanders’ challeng e to the substantive rea sonablene ss of the dist r ict court’s
sentenc e. Ac cording to Sanders, the court should have imposed “a se ntence that would allow for non-custodial trea

tment of Mr. Sanders’ s intellect u al defic its.” We have held that “substantive

rea sonablene ss claims do not need to be raised befor e the district court to be prese rved for appea l.” Freem an , 6 4 0 F. 3d at 185 (citations and quotations omitted). We revie w the substantive

rea sonablene ss of Sanders’ sente n c e u n d e r th e d e f

e r e n ti a l a b u se-of -discre tion standard. Id. (citations and quotations omitted). We have held that “[a] s e n te nce may be substantively unrea sonable if the district court selec ts the sentenc e arbitra

rily , bases the sentenc e on impermissible fac tors, fails to consider pertinent § 3553(a) fac tors or g ives an unre asonable amount of weig ht to any pertinent fac tor.” United States v. Vowell , 516 F.3d 503, 510 ( 6th Cir. 2008) (alter ations and interna l quotation marks omitted). I n deciding to impose a sentenc e that was outside the g uidelines, the district court g ave equal weig ht to the pertinent section 3553(a) fac tors. The court discussed Sanders’ char acte ristics and history

. I t noted that Sanders had a ninth g rade education, and descr ibed his past history

. The court observe d that Sanders had six aliases and three differ ent Social Security numbers. I n 1997, Sanders g ave f alse identifica

tion to poli ce office rs and disrupted them while they interviewe d the driver

of

a ca r in which he was a

passeng er. Sanders pl eade d g uilty to public peac e misrepr esenta tion with intent of obstructing the police. Then, in 2006, Sanders pleade d g uilty to rec kless use of a g un. I nNo. 11-2314

United States of America v . Craig Sanders Pag e 8 2009, Sanders pleade d g uilty to attempted malicious destruction of a building. During that incident, Sanders twice failed to appea r for his arr aig nment, failed to appea r for his sentenc ing hear ing and failed to a ppear for an additional schedule d hear ing. I n 2006, Sanders plea ded g uilty to attempted

rec eiving and conce aling stolen proper ty (a motor vehicle)

. The court conclude d t h at , b as ed o n Sanders’ history , a sentenc e of two and a half y ear s would “af ford the public a major protec tion from the commission o f fu rther crimes by this defe ndant, if throug h no other means than an extended period of incar cer ation.” Given Sanders’ past criminal conduc t , t h e district court stated that a sentenc e outside the g uidelines was nece s sary to deter Sanders from eng ag ing in further criminal conduct. The district court also explained that a senten ce o u t side of the g uidelines was neede d to promote Sanders’ respe ct for the law. The court descr ibed how even afte r Sanders called the Coast Guar d, he continued “to show a blatant disreg ard for the laws of this country by encour ag ing another person to provide false i nformation t o t he investi g ating ag ents in this case .” Sanders also tried t o evade the investiga ting ag ents when they attempted to make contac t with him. The court noted that while on bond in this case , San d er s t es t ed positive for marijuana use on October 15, 2010 and J anuar y 14, 2011; while seeking out patient trea tment, Sanders tested positive for marijuana use on Fe bruar y 1 and Mar ch 15, 2011 and on Ma rch 1, 2011 f

or alc ohol and marijuana

. Finally , the district c ourt stated that Sanders’ sentenc e should r efle ct the seriousness of the offe nse, which the court found to be “g rea t.” The court explained that Sanders’ offe nse was serious
not only beca

use of the m oney the C oast Guar d spent to mount the t hirty -eig ht person searc h , b u t also beca use the prank unnece ssarily exposed the Coast Guar d personne l to the risks inhere nt in anyNo. 11-2314

United States of America v . Craig Sanders Pag e 9

sear ch-a nd-re scue opera tion. Fur thermore , the offe nse was serious beca use t h e p rank call, by diverting personne l, limit ed the Coast Guar d’s ability to investiga te any actua l emer g ency calls had any such distress ca lls been made . The district cour t noted that Sanders’ offe nse is so serious that Congr ess has provided that a violation of this law may re s u l t i n up to a six y ear term of imprisonment. Ba sed on this rec ord, we cannot say that the district court abused its discretion in sentenc ing Sanders. For the re asons set for

th above, we AF F IRM.