*

The Honorable S. Arthur Spiegel, United States District Court Judge for the Southern

District of Ohio, sitting by designation.

NOT FOR PUBLICATION

File Name: 06a0510n.06

Filed: July 20, 2006

NO. 05-2190

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee,

v. ON APPEAL FROM THE

UNITED STATES DISTRICT

TIMOTHY L. SOTO, COURT FOR THE EASTERN

Defendant-Appellant. DISTRICT OF MICHIGAN

___________________________________/

BEFORE: SUHRHEINRICH and GRIFFIN, Circuit Judges, and SPIEGEL, District

Judge.*

SUHRHEINRICH, J., Defendant-Appellant Timothy Soto appeals the judgment of the

district court sentencing him to a term of imprisonment of twenty-four months for violating

conditions of his supervised release, including a state conviction for receiving and concealing stolen

property. For the reasons that follow, we AFFIRM.

I.

On September 2, 2003, Soto pleaded guilty to assaulting, resisting, or impeding officers, in

violation of 8 U.S.C. § 111(b), and to possession of an unregistered firearm, in violation of 26

U.S.C. § 5861(d). The district court sentenced him to a term of imprisonment of twenty-four

months–the very lowest end of the appropriate Sentencing Guidelines range–to be followed by three

years of supervised release. The relatively short sentence reflected the court and Soto’s mutual
1

The state of Michigan had charged Soto with receiving and concealing a stolen motor

vehicle and with fleeing and eluding in the third degree. As part of a plea agreement, the state

agreed to drop the charge of fleeing and eluding.

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understanding that Soto would be subject to the district court’s own “zero tolerance” policy after his

release. Soto appealed the district court’s denial of his motion to suppress evidence in that case.

A different panel of this Court affirmed. See United States v. Soto, 124 F. App’x 956 (6th Cir. Mar.

7, 2005) (unpublished opinion).

Soto’s supervised release commenced on September 10, 2004. Soto began violating the

terms of his supervised release shortly thereafter. Specifically, he stopped reporting for drug testing

and stopped physically reporting to the probation department in early December 2004; he quit his

full-time job around January 1, 2005 and did not procure further employment; he failed to submit

required written monthly reports for January and February 2005; and he failed to keep probation

informed of his change of address. As a result, on March 23, 2005, Soto’s probation officer sought

a warrant for Soto’s arrest, which the district court signed. On August 22, 2005, the probation

officer supplemented the violations report to include Soto’s intervening state court conviction for

receiving and concealing stolen property.1

At sentencing, Soto requested a sentence within the recommended Guidelines range of 8-14

months that would run concurrently with his state sentence. In support, he cited his age (21) and his

need for vocational training and drug treatment. The district court, noting its “zero tolerance” policy

with Soto and finding “acute . . . violation[s] of almost everything [the court] talked to [Soto] about

at the time of [his original] sentencing,” adopted the recommendation of the government that Soto

serve the statutory maximum of twenty-four months consecutive to his state sentence.

This timely appeal followed.
2

Other courts have concluded, in light of the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), that the proper standard of review in supervised release revocation

cases is “reasonableness.” See United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005);

United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005); United States v. Fleming, 397 F.3d 95,

99 (2d Cir. 2005); see also United States v. Turner, 133 F. App’x 711, 715 (11th Cir. June 7, 2005)

(unpublished). In United States v. Johnson, 403 F.3d 813 (6th Cir. 2005), however, this Court in

dicta questioned the Second Circuit’s reasoning in Fleming and appeared to favor adherence to the

pre-Booker “plainly unreasonable” standard of review. See id. at 816-17 (“[T]he Second Circuit’s

interpretation [of Booker] . . . fails to account for the fact that Booker left sections 3742(a), 3742(b),

and 3742(f) on the books, and it fails to account for the fact that (at least as far as our Circuit is

concerned) our cases have relied upon both sections 3742(a)(4) and 3742(e)(4) in applying a ‘plainly

unreasonable’ standard.”). But whether Booker compels a “reasonableness” standard rather than a

“plainly unreasonable” standard need not be decided in this case. See United States v. Kirby, 418

F.3d 621, 625 n.3 (6th Cir. 2005) (declining to decide Booker’s effect on the proper standard of

review); Johnson, 403 F.3d at 817 (same). Whatever the differences, we would affirm under either

standard.

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II.

The sole issue on appeal is whether the district court erred in sentencing Soto to a term of

imprisonment of twenty-four months for violating the terms of his supervised release.

A sentence imposed upon revocation of supervised release is reviewed for abuse of

discretion. United States v. Webb, 30 F.3d 687, 688 (6th Cir. 1994). This Court will affirm provided

the district court’s decision reflects consideration of the relevant statutory factors and is not plainly

unreasonable.2 United States v. McClellan, 164 F.3d 308, 309 (6th Cir. 1999); see also United States

v. Washington, 147 F.3d 490, 491 (6th Cir. 1998).

In imposing a term of imprisonment following revocation of supervised release, the district

court is required to consider the relevant policy statements of the Sentencing Guidelines. McClellan,

164 F.3d at 310. In addition, the district court must also consider the relevant statutory factors found

in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e). Those factors include “the nature and

circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. §
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3553(a)(1), “the need . . . to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense,” § 3553(a)(2)(A), “the need . . . to afford adequate

deterrence to criminal conduct,” § 3553(a)(2)(B), and “the need . . . to provide the defendant with

needed . . . medical care . . . or other correctional treatment in the most effective manner,” §

3553(a)(2)(D). However, the “‘court need not engage in ritualistic incantation in order to establish

consideration.’” Washington, 147 F.3d at 491 (quoting United States v. Davis, 53 F.3d 638, 642 (4th

Cir. 1995)). Instead, “[t]he statute’s mandate is . . . satisfied if . . . the district court’s explanation

of the sentence makes it clear that it considered the required factors.” Id.

Here, the district court considered the relevant sentencing factors. There is no question that

the court considered the recommended range in the Sentencing Guidelines. At sentencing, counsel

for Soto argued at length for a sentence within the Guidelines range. More importantly, the district

court, in imposing sentence, stated its “belie[f] that the guidelines . . . aren’t appropriate in this

particular matter.”

As for the consideration of the nature and circumstances of the offense; the history and

characteristics of the defendant; the need to deter criminal conduct; and the need to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment, the district

court said the following:

In this matter the Court recalls this case. I don’t recall very many, but I remember

this case, not every detail of the case, but wanted [sic] to give you a break and I gave

you a break at the low end of the guidelines. And we talked about that, and I talked

about zero tolerance and I remember specifically talking about zero tolerance, saying

once you get out you’d better conduct yourself in the manner that you’re supposed

to and you didn’t. It’s just that easy. Not only did you didn’t [sic], but it wasn’t just

a minor kind of thing. You picked up another criminal activity. You didn’t report.

You didn’t do anything particularly that you’re supposed to be doing. And you’re

still young, and you do have a child on the way, and life is pressure. . . . You have

to learn to adjust to that pressure, and part of adjusting to that pressure is to get some
3

Soto’s original sentence was twenty-four months, but he was given credit for the one year

he spent in jail awaiting trial and sentencing.

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help. You need some help, and I’m going to try to get you some help if I can.

The Court believes that because of the fact that the defendant was placed on

zero tolerance and that the violation was very acute, not just some technical

violation, but a violation of almost everything I talked to him about at the time of

sentencing. . . . The Court believes that the maximum sentence is appropriate in this

matter.

. . . And I understand being in the County Jail is not an easy thing, but that

will give you eleven months to really have the space to think about it. And then

you’ll have two years in the federal system to get you to think about it . . . .

Soto also argues that the district court did not adequately account for his need for drug

treatment. We disagree. At the close of the sentencing hearing, the district court denied Soto’s

request to be placed at the federal prison in Milan, which has a substance abuse program, because

the court wanted Soto to take the initiative himself to prove that he is sincere about getting help.

Moreover, the sentence Soto argues the district court should have imposed would have actually

made it nearly impossible for him to receive treatment. At sentencing, defense counsel stated that

Soto was unable to receive treatment during his original term of imprisonment because he was

scheduled to be in prison for only one year.3

 Since the waiting list for the drug treatment program

was longer than one year, Soto was released before he could take advantage of it. Had the district

court adopted Soto’s recommendation of 8-14 months, served concurrently with his eleven-month

state term of imprisonment, however, Soto would have had, at most, three months in federal prison.

If one year was not long enough for Soto to receive treatment, three months certainly would not have

been long enough.

Having determined that the district court properly considered the Sentencing Guidelines and

the relevant statutory factors, we must now determine whether the sentence imposed was plainly
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unreasonable. The district court granted Soto leniency in his original sentence. Soto responded by

violating five different terms of his supervised release. The violations included the commission of

another crime, in which Soto fled and eluded police who were trying to arrest him for receiving and

concealing a stolen car. In light of that incident, the district court was unconvinced that Soto had

been rehabilitated. Accordingly, the district court sentenced him to the maximum term of

imprisonment, which, according to the district court, gives Soto an opportunity to think about what

he wants to do with his life and to think seriously about seeking treatment. Based on this record,

we cannot say that a sentence that exceeded the advisory Guidelines range by ten months was

unreasonable or plainly unreasonable. Cf. Kirby, 418 F.3d at 628 (affirming a sentence eleven

months above the advisory Guidelines range based on multiple violations of the defendant’s

supervised release and her “repeated [criminal] transgressions”); Johnson, 403 F.3d at 814, 817

(affirming a sentence eight months above the advisory Guidelines range where the defendant

“violated several terms of his supervised release, forged documents to cover his violations, and lied

to his probation officer”).

Because the district court considered the relevant statutory factors and the sentence was

neither unreasonable nor plainly unreasonable, we must affirm. See McClellan, 164 F.3d at 309;

Washington, 147 F.3d at 491.

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.