NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0201n.06 Nos. 10-6397, 10-6398 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DOUGLAS C. BRYANT, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE EASTERN DI STRI CT OF TEN

NESSEE OPI NI ON

Before: COLE and STRANCH, Circuit Judges; CARR , District Judge. * JA N E B. STRANCH, Circuit Judge

. Def endant Doug las Br

yant rec ei v e d a s e nte n c e o f 2 3 5 months’ imprisonment afte r pleading g uilty to a drug offe nse. Be cause the same conduct constituted

a violation of a supervi s ed re l ea se condition from an ear lier offe nse, he was also sentenc ed to a

consec utive term of imprisonment of fifty -o n e m o n t hs. In this consolidated appea l, Br y ant challeng es (1) the imposit ion of the car eer offe nder sentenc i n g enhancement for his drug offe nse sentenc e, (2) the constitutionalit y of his supervised rele ase sentenc e under the Ex Post Fa cto clause , and (3) the proce dural and substant i v e re asonable ness of his drug offe nse sentenc e. For the 1 following rea sons, we AF F IRM Br y ant’s sente nces.

The Honora

ble J ames G. Carr, United States District J udg e for the Norther n Di s tric t o f Ohio, * sitti ng by desig nation. Although the third issue is not li sted in the I ssues Presente d section of B ry ant’s brie f, it is 1 separ ated with an inde pendent he adingin the Argument section.10-6397, 10-6398

USA v. D ouglas Bryant

I. BACKG ROUND In 2001, Br

y ant p led guilty to drug and firea rm offe nses and was sentenc ed to a term of imprisonment which was eventua lly reduc ed to 100 months, followed by four year s of supervised rele ase. Br

y ant left prison in J une 2008. In Fe bruar y 2010—less than halfwa y throug h his term of supervised rele ase—B ry ant was arr ested for possessing coca ine afte r he tried to f lee the scene of a controlled drug purcha se. He pled g uilty to possession with intent to distribute coca ine in violation 2 of 21 U.S.C. § 841(a) (1), (b)( 1)(C). As a result of being deeme d a car eer offe nder as d ef i ned in USSG § 4B1.1 (2009), Bry ant had an adjusted offe nse l evel of 31 and a criminal hi story cate g ory of VI , resulting in a Guidelines rang e of 188- 235 months. The district c ourt, primarily rely ing on 3 Br y ant’s extensive criminal rec ord, imposed a sentenc e at the upper end of this rang e. For violating the terms of his supervised rele ase conditions from his 2001 conviction, the court g ave Br y ant a “bre ak” due to his cooper ation with authorities by imposing a sentenc e at the lower end of the 51-60 month Gu i d el i n es rang e. The court order ed these sentenc es to run consec utively

. See USSG § 7B1.3( f). B ry ant filed a

timely appea l. II. DISCUSS ION A. Care er Offend er Enhancem ent

The Presentenc e Report indicates he had sever al other problems during this time, including 2 failed dr ug tests and ar

rests for domestic violence

. Wit hout the enhanceme nt, his adjusted offense level and criminal history cate g ory woul d 3 have be en 12 and V , respe ctively , resulting in a Guidelines ra ng e of 27- 33 months. 210-6397, 10-6398

USA v. D ouglas Bryant Br y ant argues that he should not have been deeme d a car eer offe nder under USSG § 4B1.1 beca use one of the predic ate offe nses, a 1996 state robber y conviction for which he was sentenc ed to four y ear s’ i mprisonment, was “too remote.” “We review de novo a dis trict court’s conclusion that a crime quali fies as a predicate offe nse for the caree r-of fende r designation.” United St ates v. Skipper , 552 F.3d 489, 491 (6th Cir. 2009). The Guid el i n es p ro vide t hat “[ a]ny prior sentence of imprisonment exceeding o n e y ear and one month that was imposed within fiftee n y ear s of the defe ndant’s co m m en ce m ent of the instant offe nse is counted” for Guidelines purposes. USSG § 4A1.2(e )(1)

. Br

y ant does not contest the fac t that less than fiftee n year s elapse d betwee n J uly 1996 (whe n the sentenc e for the predic ate offe nse was imposed) and Fe bruar y 2010 (wh en the instant offe nse occur

red)

. Acc ording ly , Br

y ant’s claim that the 1996 conviction cannot serve as a predic ate for c are er of

fende r purpose s lacks mer it. Next, Br y ant states that application of the car eer offe nder enhanc ement resulted in a sentenc e that was “excessive, harsh, unnecessa ry and acts in violation of t he spi rit of the provisions set out in 18 U.S.C. § 3553(a) ” beca use of the extent to which it raised the Guidelines rang e. We construe this as a claim of substantive unrea son ablene ss, see United States v. W arman , 578 F.3d 320, 350 4 (6th Cir. 2009), which we revie w under a defe rential abuse- of-discr etion standard, United States v. Jones , 641 F.3d 706, 711 (6th Cir. 2011) (citing Gall v. United States , 5 5 2 U.S. 38, 51 (2007))

. Although Br

y ant ref ere nces a case for the proposition that the car eer offe nder enhanc ement 4 is d is c r e ti o n a

r y rathe r than mandatory , which sug g ests a proce dural rea sonablene ss chal le n g e , B r ya nt does not actua lly claim that the district court believed it lacke d discretion to deny the enhanc ement. Indeed, the court expressly observe d that the enhanc ement is discretionar y , which Br

y ant seems to rec og nize by his explanation for the district court judge ’s decision t o ex ercise this discretion: “B eca use he c ould.” 310-6397, 10-6398

USA v. D ouglas Bryant Br y ant’s sentenc e is presumed to be rea sonable beca use it is within the proper ly -ca lculated Guidelines ra

ng e. United States v. Alex ander , 543 F.3d 819, 826 ( 6th Cir. 2008). A sentenc e is substantively unreas o n ab l e “i f it is selec ted arbitra rily , if it is based on impermissible fac tors, if it fails to consider a rele vant sentenc ing fac tor, or if it g ives an unrea sonable
amount of weig ht to any pertinent fac tor.” United States v. Massey , 663 F.3d 8 5 2 , 857 (6th Cir. 2011) (quoting United States v. Rosenbaum , 585 F.3d 259, 267 (6th Cir. 2009)). To the extent that Br y ant alleg es his sentenc e is unrea sonably long solely beca use the car eer of

f e n d er enhanc ement was applied, thi s argument is derivative of hi s ear lier obj ection to being deeme d a care er offende r and may be reje cted for the same rea son. Skipper , 552 F.3d at 493. A revie w of the rec ord also demonstrates that the district court proper ly assessed the § 3553(a) fa ct o rs, including revie w of Br y ant’s “con s is te n

t a n d c o n s ta nt” c r im in a l a c tivity , domestic abuse issues, rec ord of g un possession, substance abuse, the dang er he prese nts to the public, etc. The court did not abuse its discretion in i mposing the sentenc e in light of the record and rele vant Guidelines provisions. See Massey , 663 F.3d at 861. B. Sup ervise d Release Sente nce Br y ant arg ues that applying USSG § 7B1.4( a) to establish a Guidelines rang e for the sentenc e he rec eived for violating his supe rvised rele ase conditions infring es on the Ex Post Fa cto clause of the United States Constit ution. This Court has previously rejected the asser tion that the Ex Post Fa cto clause is implicated by sentenc es for the violation of a supervised rele ase condition. “B eca use supervised rele ase, unlike the previous parole sy stem, is a form of punishment that is separ ate from the maxi mum incar cer ation period that attache s to the orig inal offe nse, a violation of that supervised 410-6397, 10-6398

USA v. D ouglas Bryant rele ase also results in a separ ate punishment that does not implicate the Ex Po s t Facto Clause.” United S t a t es v. Ree

se , 71 F.3d 582, 588 (6th Cir. 1995). “In eff ect, a sentenc e for violation of supervised relea se i s a sentence for a new of fe n se[.] ” United St ates v. W aters , 158 F.3d 933, 944 (6th Cir. 1998). Acc ording ly , we find no constitutional violation in the use of the Guidelines rang e contained in USSG § 7B 1.4(a)

. C. Reasonableness of Drug Off

ense Sentence In the final s u b s ec t i on of his brief, Br y ant re- raises his previous conce rns that the car eer offe nder enhanc ement was improperly added and resulted in an excessive sentenc e. Be cause Br y ant provides no additional argument or ex plana tion for why the enhanceme nt was errone ous or l ed to

a substantively unrea sonable sentenc e, we reje ct Br y ant’s argument for the rea sons provided above. Skipper , 552 F.3d at 493. III. CONCLUSION For the fore g oing rea sons, we AF F IRM Br y ant’s sentenc es in e a ch of the consolidated case s.

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