NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0296n.06 CASE NO. 16-2525 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES of AMERICA, Plaintiff-Appellee ,

v. KENNETH J. JONES, Defendant-Appellant . ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: MERRITT, BATCHELDER, and CLAY, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. The defendant appeals the sentence imposed on the revocation of his s upervised release. We AFFIRM.
I. Kenneth Jones is a convicted felon who tr ied to buy a gun from a Virginia Beach pawn shop. This led him to make a false statement on an application, denying that he is a felon, which led a federal prosecutor in the Ea stern District of Virginia to charge him with a violation of 18 U.S.C. § 924(a)(1)(A). Upon Jones’s guilty pl ea, the PSR counted 10 criminal history points for a criminal history category of V. Accordi ng to Jones, only nine poi nts should have counted, making the correct category IV, but nobody caught th e mistake at the time of the sentencing. The U.S. District Court for the Eastern District of Virginia se ntenced Jones to 10 months in prison and three years of supervised release, wh ich also required substance abuse treatment. Jones appealed, claiming that the miscalculation wa s plain error, but the F ourth Circuit dismissed his appeal as moot because he had by that time already been released from prison.No. 16-2525 USA v. Kenneth J. Jones

2 Upon his release from prison, Jones moved to Michigan where he missed probation appointments and failed drug test s. The probation department ch arged him with violating his supervised release and prepared for a revocation h earing in the Eastern Dist rict of Michigan. At the hearing on October 25, 2016, the cour t found that Jones has a serious drug problem and discussed the possibilities for treatmen t. Jones did not raise the issue of the prior mistaken tabulation of his criminal history point s. The court used the PSR with the criminal history of V and calculated an advisory range of 18 to 24 m onths—a criminal history of IV would have produced an advisory range of12 to 18 months. The court imposed a belowguidelines sentence of eight months in prison plus 22 months of supervised release. Jones is currently in prison but, he conte nds, there is no substance abuse pr ogram available to him there.
II. Jones argues that the district court committe d plain error by accepting the prior PSR from the Eastern District of Virginia and “treating [h im] as a Category V offender,” and he urges us to presume that—but for the error—the court would have varied downward even further from a lower starting range. But “[t]he criminal hist ory category to be used in determining the applicable range of imprisonment in the Revocation Table is the category determined at the time the defendant originally was sentenced to th e term of supervisi on.” U.S.S.G. § 7B1.4, Commentary (n.1). In this case, that is category V. The district court did not err by following this instruction. Next, Jones argues that by considering an impe rmissible factor in his sentencing—that he was too poor to pay for private substance-abus e treatment—the court treated rich and poor defendants differently, which violates the Constitu tion. But in actuality, the court rejected Jones’s proposed inpatient substance-abuse treatment as an alternative to prison because of Jones’s numerous violations and failures to comply with treatment, not because he could notNo. 16-2525 USA v. Kenneth J. Jones

3 afford it. The court did not say that Jones coul d reduce his sentence if he could afford private treatment. Jones’s claim is refuted by the facts a nd we have no basis to conc lude that the district court abused its disc retion with this belo w-guidelines sentence. Finally, Jones argues that the court sent him to prison for th e sole purpose of substanceabuse rehabilitation, which is an imperm issible reason under 28 U.S.C. § 994(k) and Tapia v. United States , 564 U.S. 319, 330 (2011). Apt. Br. at 23- 24. But Jones admitted to a Grade B violation for failing a drug test. Revocation of supervised release is mandatory for a Grade B violation. U.S.S.G. § 7B1.3(a)(1). Moreover, imprisonment is manda tory when that violation is the failing of a drug test. U.S.S.G. § 7B1.4, Co mmentary (n.5). While the court expressed hope for Jones’s rehabilitation, it sentenced him to prison for deterrence and punishment, and admonished him “to realize that this is your personal responsibility to comply with these conditions, and that there is a component of, as we say here, just punishment here.” R. 19 at 28. The court did not abuse its discretion by imposing this below guidelines sentence.
III. For the foregoing reasons, we AFFIRM the judgment of the district court.