United States v. China Hester

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 26, 2021
• Docket: 20-3683
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0254n.06

Case No. 20-3683

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 26, 2021 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE ) SOUTHERN DISTRICT OF CHINA HESTER, ) OHIO Defendant-Appellant. ) ) OPINION

BEFORE: NORRIS, KETHLEDGE, and NALBANDIAN, Circuit Judges

NALBANDIAN, Circuit Judge. China Hester was on supervised release when

she used a false social security number on a rental application. For the offense itself,

the district court sentenced Hester to time served—about seven months. But for

violating the terms of her supervised release, the court sentenced her to eighteen

months. The court ordered that Hester serve these sentences consecutively rather

than concurrently. Hester appealed, arguing that her sentence is substantively

unreasonable. Because the district court did not abuse its discretion in choosing the

sentence, we AFFIRM. No. 20-3683, United States v. Hester

BACKGROUND Before the social security number offenses that sparked this appeal, Hester

conspired to possess with intent to distribute twenty-eight grams or more of cocaine

base. For that offense, the district court sentenced her to fifty months of incarceration

followed by four years of supervised release. Her supervised release began in

February 2017.

That November, Hester gave a false social security number in an apartment

application. She got approved, and she lived in the apartment until the landlord

evicted her for nonpayment. About a year later, she applied to rent a home using a

second false social security number. Hester was arrested and charged with False

Representation of a Social Security Number, a violation of 42 U.S.C. § 408(e)(7)(B).

Hester pled guilty and stipulated to the violation of her supervised release. The

parties agreed that the guideline sentencing range for the supervised release

violation was 18 to 24 months, and the guideline sentencing range for the social

security number fraud was 6 to 12 months. 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4.

The sentencing court noted its duty to consider the guideline range and the

statutory factors, including “the nature and circumstances of the offense, the history

and characteristics of the defendant, the need for the sentence to reflect the

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

punishment, as well as to afford adequate deterrence and to protect the public from

more crimes by the defendant.” (2:19-cr-86, R. 48, Sent. Tr., PageID 126.); 18 U.S.C.

§ 3553(a).

-2- No. 20-3683, United States v. Hester

After hearing from the defendant, defense counsel, and the government, the

court considered the § 3553(a) factors and their application to Hester on the record.

It emphasized Hester’s “lengthy criminal record,” which took up “pages and pages

and pages,” and documented “fraudulent behavior, petty thefts, offenses involving

deception,” and other crimes. (R. 48 at 130–31.) The court noted that many of her past

sentences seemed so lenient that they had not deterred her criminal behavior. In sum,

the court believed that Hester’s criminal history and the need to protect the public

from future crimes warranted a within-guidelines sentence. At the same time, the

court recognized that counsel had brought up mitigating factors, including the fact

that she had been seeking better housing for her kids and had used made up social

security numbers with her real name. Those considerations led the court to impose

sentences on the low end of the guidelines.

In the end, the court imposed a sentence of time served—about seven months—

and a three-year term of supervised release for the social security number offense.

But for the supervised release violation it imposed a sentence of eighteen months

incarceration to be served consecutively to the first sentence. Hester appealed.

DISCUSSION We review sentences imposed while revoking supervised release for abuse of

discretion. United States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009). We give “due

deference” to the district court’s sentence if the § 3553(a) factors justify it, “even if we

would have imposed a different sentence.” United States v. Cunningham, 669 F.3d

723, 733 (6th Cir. 2012).

-3- No. 20-3683, United States v. Hester

Since Hester is not challenging any procedural aspect of the sentence, we

consider only its substantive reasonableness: whether the “sentence is too long.”

United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). “A sentence is

substantively unreasonable if the sentencing court arbitrarily selected the sentence,

based the sentence on impermissible factors, failed to consider pertinent § 3553(a)

factors, or gave an unreasonable amount of weight to any pertinent factor.”

Cunningham, 669 F.3d at 733. We “take into account the totality of the

circumstances, including the extent of any variance from the Guidelines range,” and

we may “apply a presumption of reasonableness” to a within-guidelines sentence.

Gall v. United States, 552 U.S. 38, 51 (2007). “Defendant bears a heavy burden in

showing that [her] sentence at the low-end of [her] Guidelines range is unreasonable.”

Cunningham, 669 F.3d at 733.

Nothing in the record suggests that the within-guidelines sentence here was

unreasonable. The district court considered the necessary factors. It began by

calculating the guidelines range to use as an “initial benchmark.” Gall, 552 U.S. at

49. Then it noted Hester’s long criminal history and the apparent need for greater

deterrence. Since the need for deterrence can justify even an upward variance, it can

certainly justify a within-guidelines sentence. See Kontrol, 554 F.3d at 1093. The

court also considered the mitigating factors that counsel raised, ultimately giving

sentences on the low end for both offenses. Hester cannot overcome the presumption

of reasonableness that we afford the court’s sentence here.

-4- No. 20-3683, United States v. Hester

The district court’s decision to run the 18-month sentence consecutive to the

time-served sentence was not an abuse of discretion either. In fact, it aligned with

the Sentencing Guidelines. The guidelines state that a sentence for a supervised

release violation “shall be ordered to be served consecutively to any sentence of

imprisonment that the defendant is serving.” U.S.S.G. § 7B1.3(f). The district court

had the authority to choose whether the sentences would run concurrently or

consecutively, and the district court did not abuse its discretion when it decided to

run them consecutively. 18 U.S.C. § 3584(a)–(b).

Most of Hester’s argument centers on her disagreement with how the district

court weighed the factors. She believes that the court should have put more weight

on her acceptance of responsibility, her apology to the court, the government’s

agreement that a lighter sentence would be appropriate, her minor role in her prior

criminal activities, and the plea agreement’s recommendation for concurrent

sentences. While these are factors that the court could have decided to weigh more

heavily in its decision, that does not make the court’s sentence substantively

unreasonable. The plea agreement did not bind the court or require a particular

outcome. And the court articulated why it believed that a within-guidelines sentence

was necessary. In sum, “the record establishes no cognizable basis for second guessing

the district court’s exercise of sentencing discretion.” Kontrol, 554 F.3d at 1093.

CONCLUSION For these reasons, we AFFIRM the district court.

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