NOT RECOMMENDED FOR PUBLICATION File Name: 21a0542n.06
No. 21-3166
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 24, 2021 UNITED STATES OF AMERICA, ) ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) NORTHERN DISTRICT OF OHIO CURTIS HINTON, ) ) OPINION Defendant-Appellant. )
Before: SUTTON, Chief Judge; STRANCH and BUSH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Curtis Hinton appeals his sentence for violating his
conditions of supervised release, arguing that it is both procedurally and substantively
unreasonable. Because Hinton’s newly imposed term of supervised release exceeds the maximum
permissible under 18 U.S.C. § 3583(h), we VACATE and REMAND for further proceedings on
that aspect of Hinton’s sentence. We AFFIRM all other aspects of Hinton’s sentence.
I. BACKGROUND
On December 19, 2017, Curtis Hinton pleaded guilty to one count of conspiracy to commit
bank fraud in violation of 18 U.S.C. § 1349 and two counts of substantive bank fraud in violation
of 18 U.S.C. § 1344(1). On March 28, 2018, Hinton was sentenced to time served—approximately
eight months and fifteen days of imprisonment—and a supervised release term of three years.
Hinton’s term of supervised release began on August 29, 2018.
In January 2019, Hinton was charged with domestic violence in state court. As a result of
the charge, the district court issued a warrant for Hinton’s arrest for violating the terms of his No. 21-3166, United States v. Hinton
supervised release, which required that he “not commit another federal, state, or local crime.”
After conducting a violation hearing, the district court allowed Hinton to be released on bond
pending the disposition of the new charge. The district court, however, imposed additional
conditions on Hinton’s release, requiring Hinton to undergo GPS monitoring and ordering him to
have no contact with the victim of his domestic violence charge.
In March 2019, Hinton violated the bond conditions, and the district court revoked his
bond. Hinton was subsequently held in custody pending the resolution of his new charge. In June
2019, Hinton pleaded guilty to a lower charge of misdemeanor assault in state court. Following
the resolution of the state charge, the district court held a violation hearing.
Ahead of the violation hearing, the United States Pretrial Services and Probation Office
(Probation Office) prepared a supplemental violation report outlining Hinton’s violations and the
corresponding Guidelines information. The supplemental report provided that Hinton was in
Criminal History Category III and Grade C was the highest grade of violation, resulting in a
Guidelines range of 5–11 months’ imprisonment. At the hearing, Hinton admitted to the Grade C
violation. The Probation Office indicated its willingness to continue to supervise Hinton.
Recognizing the unusual circumstances of the Probation Office’s willingness to continue
supervision with Hinton, the district court sentenced Hinton to time served—approximately three
months imprisonment—and continued Hinton’s term of supervision.
Throughout the hearing, the district court stressed that it would not “be very lenient” if
Hinton violated his supervised release again. The district court specifically noted that if Hinton
violated his terms again, “I’ll probably -- I’ll give you definitely a guideline sentence, and I could
give you up to two years.” The district court concluded the hearing by telling Hinton “[Y]ou’re
going to have to prove yourself. That’s all I’m saying.”
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In March 2020, the Probation Office filed a report indicating that Hinton had violated the
terms of his supervised release again when he was charged with improperly handling a firearm in
a motor vehicle and driving under suspension in state court. Hinton was eventually charged in the
United States District Court for the Northern District of Ohio, Case No. 1:20-CR-294, with one
count of possession of a firearm and ammunition by a convicted felon and one count of possession
of a firearm by a person with a domestic violence conviction. This firearms case was assigned to
the same district judge who presided over Hinton’s supervised release. In October 2020, Hinton
pleaded guilty to both offenses.
In February 2021, the district court held a combined sentencing hearing for the violation
of supervised release and for the firearms case. Ahead of the sentencing hearing, the Probation
Office filed a supplemental report affirming its recommendation of 8–14 months as Hinton’s
Guidelines range of imprisonment.
At the hearing, the district court considered Hinton’s history and characteristics, including
his age, drug-related issues, accommodation with law enforcement, criminal history, and the effort
he was making since his arrest. The district court ultimately sentenced Hinton to twenty-four
months imprisonment, to be served consecutively to the sentence in the firearms case, and three
years of supervised release, to run concurrently with the term of supervised release in the firearms
case. The district court explained that the prison sentence was to be served consecutively because
Hinton committed the firearms offense while on supervision.
The district court then asked counsel for objections. Neither defense counsel nor the
Government objected. Hinton himself, however, asked the district court to explain his sentence
further. Specifically, Hinton noted that his Guidelines range for the supervised release violation
was 8–14 months and that he was “trying to figure out why is it 24 months then.” The district
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court then explained that Hinton was correct that his Guidelines range was 8–14 months and further
explained that 24 months was the maximum. When Hinton continued to express confusion, the
district court explained “because you got another case while [ ] on supervision, you get the
maximum.” Following the hearing, the district court entered a written order reiterating its finding
that Hinton violated his supervised release and outlining the resulting sentence.
Hinton timely appealed his sentences in both this supervised release violation case and the
firearms case.1 Hinton’s appeal of the firearms case was resolved earlier this year by a different
panel of this court, which affirmed the district court’s judgment. United States v. Hinton, No. 21-
3162 (6th Cir. Sept. 24, 2021) (order). In this present appeal, Hinton argues his sentence for
violating his supervised release is both procedurally and substantive unreasonable.
II. ANALYSIS
A. Standard of Review
“Review of a sentence imposed for violation of the conditions of supervised release is
identical to review of a sentence imposed for a conviction.” United States v. Wilson, 630 F. App’x
575, 578 (6th Cir. 2015) (citing United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007)).
“Sentences in criminal cases are reviewed for procedural and substantive reasonableness.” United
States v. Freeman, 640 F.3d 180, 185 (6th Cir. 2011) (citing Gall v. United States, 552 U.S. 38,
51 (2007)). We “must first ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. Then, we review
1 While the two cases were consolidated on appeal, their status was later changed to related.
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the substantive reasonableness of a sentence. Id. “Simply put, a defendant’s sentence is
substantively unreasonable if it is too long.” United States v. Lee, 974 F.3d 670, 676 (6th Cir.
2020) (citing United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)). And “[a] sentence is
too long when it is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C.
§ 3553(a)(2).” Id. (quoting 18 U.S.C. § 3553(a)(2)).
Generally, reasonableness in sentencing is reviewed under the abuse-of-discretion
standard. United States v. Johnson, 640 F.3d 195, 201 (6th Cir. 2011) (citing United States v.
Polihonki, 543 F.3d 318, 322 (6th Cir. 2008)). Under this standard, we review the district court’s
legal conclusions de novo and its factual findings for clear error. United States v. Shanklin, 924
F.3d 905, 919 (6th Cir. 2019).
“Under the rule we adopted in Bostic, district courts are required, after announcing
sentence, to ‘ask the parties whether they have any objections to the sentence . . . that have not
previously been raised.’” United States v. Herrera-Zuniga, 571 F.3d 568, 578 (6th Cir. 2009)
(quoting United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004)). “Where the sentencing judge
complies with this procedure, the defendant generally forfeits the right to challenge on appeal any
procedural errors to which he did not object at the time of sentencing.” Id. In that situation, we
review the claims for plain error instead of the usual abuse of discretion. Freeman, 640 F.3d at
186. Notably, “[a] defendant [ ] is not required to object to the substantive reasonableness of his
sentence to preserve that issue for appeal.” Herrera-Zuniga, 571 F.3d at 578.
“Plain error exists where there is ‘(1) error (2) that was obvious or clear, (3) that affected
[the] defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation
of the judicial proceedings.’” United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018)
(quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)).
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B. Procedural Reasonableness
The parties first dispute which standard of review applies to the procedural reasonableness
arguments Hinton raises on appeal. The Government contends that the plain error standard is
appropriate because Hinton’s trial counsel did not raise these particular issues below. Hinton
argues that while his trial counsel did not object, Hinton himself raised some of the issues when
he asked the district court multiple times to explain the above-Guidelines sentence after the
sentence was announced. Indeed, Hinton noted that the sentence imposed was outside of the
Guidelines range and specifically stated, “I’m trying to figure out why is it 24 months then.”
In Vonner, we applied the rule that “[n]ormally, a defendant must object to a district court’s
procedural errors in imposing sentence immediately after the court imposes the sentence, or any
challenges to the procedural aspects of the sentence on appeal are reviewed for plain error.” United
States v. Grams, 566 F.3d 683, 686 n.1 (6th Cir. 2009) (citing Vonner, 516 F.3d at 390). “As this
court has recognized, the purpose of the rule applied in Vonner is to ‘provide[ ] the district court
with an opportunity to address the error in the first instance and allow[ ] this court to engage in
more meaningful review.’” Id. (quoting Bostic, 371 F.3d at 871) (alterations in original). As such,
“[w]hen determining whether a party has adequately preserved a claim for appeal, this court
examines the record ‘with an eye to the realities of the facts and circumstances of each sentencing
proceeding.’” United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014) (quoting United States v.
Morgan, 687 F.3d 688, 694 (6th Cir. 2012)).
In the present case, while Hinton raised objections that were addressed by the district court,
some of the issues he now raises on appeal were not preserved. Hinton’s inquiries about why his
sentence was above the Guidelines range were sufficient to give the district court the opportunity
to address Hinton’s concern that it had not adequately explained the upward deviation. In fact, it
was not until Hinton himself raised the issue that the district court provided an explanation for
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doing so, explaining it was “because you got another case while you’re on supervision, you get the
maximum.” Accordingly, whether the district court procedurally erred in failing to adequately
explain Hinton’s sentence will be reviewed under the abuse of discretion standard. Hinton’s
arguments regarding the district court’s treatment of the Guidelines as mandatory and his term of
supervised release, however, were not preserved below and will be reviewed for plain error.
1. Term of Imprisonment
Hinton first challenges the procedural reasonableness of his term of imprisonment arguing
that the district court failed to sufficiently explain its upward variance from the recommended
Guidelines range, including a failure to consider the § 3553(a) factors. A district court “must
adequately explain the chosen sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Gall, 552 U.S. at 50. An adequate explanation “involves
considering the § 3553(a) factors” to a sufficient degree. United States v. Byrd, 843 F. App’x 751,
756 (6th Cir. 2021). “While the district court need not list each § 3533(a) factor by name, it must
illustrate somehow that it did in fact consider each of the factors, offering something more than a
‘conclusory judicial assertion’ as proof.” Id. (quoting United States v. Ferguson, 518 F. App’x
458, 467 (6th Cir. 2013)).
In the present case, the record reflects that the district court considered the relevant
§ 3553(a) factors, including Hinton’s age, drug-related issues, accommodation with law
enforcement, acceptance of responsibility, the effort he was making since his arrest as well as the
specifics of Hinton’s criminal history. The district court also noted both that Hinton had previously
violated the conditions of his state community supervision as well as his supervised release in this
case. Finally, it is apparent that the district court considered the policy statement in USSG
§ 7B1.3(f) when it noted that Hinton’s sentence in this case would run consecutively with his
sentence in the firearms case “because you committed this offense while you were on supervision.”
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The district court’s discussion is sufficient to allow for meaningful appellate review and the
perception of fair sentencing.
Next, relying on United States v. Coppenger, Hinton argues his sentence was procedurally
unreasonable because “the facts or issues on which the district court relied to impose a variance
came as a surprise and [the defendant’s] presentation to the court was prejudiced by the surprise.”
775 F.3d 799, 804 (6th Cir. 2015) (quoting United States v. Rossi, 422 F. App’x 425, 432 (6th Cir.
2011)). Hinton’s argument ultimately fails because “the facts or issues” that the district court
based its determination on were outlined in both the original Violation Report and the
Supplemental Report in this case as well as the Presentence Investigation Report in the firearms
case. Accordingly, Hinton cannot claim surprise.
Finally, Hinton argues that the district court treated the Guidelines as mandatory when it
ordered that his sentence be served consecutively to his sentence in his firearms case. In a policy
statement on the revocation of supervised release, the Guidelines recommend “[a] term of
imprisonment imposed upon the revocation of . . . supervised release shall be ordered to be served
consecutively to any sentence of imprisonment that the defendant is serving.” USSG § 7B1.3(f).
We have explained, however, that “[t]his policy statement is not binding on the district court, and
construing it to be mandatory would be reversible error.” Johnson, 640 F.3d at 208. In this case,
however, there is no evidence that the district court incorrectly believed the policy statement was
binding.
2. New Term of Supervised Release
Hinton challenges his new three-year term of supervised release to be served after his
twenty-four-month term of imprisonment as procedurally unreasonable. Hinton argues that the
three-year term of supervised release exceeds the maximum allowed under 18 U.S.C. § 3583(h)
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because it fails to take into account the term of imprisonment he served for the first violation of
supervised release in 2019.
Under § 3583(h), “[w]hen a term of supervised release is revoked and the defendant is
required to serve a term of imprisonment, the court may include a requirement that the defendant
be placed on a term of supervised release after imprisonment.” However, “[t]he length of such a
term of supervised release shall not exceed the term of supervised release authorized by statute for
the offense that resulted in the original term of supervised release, less any term of imprisonment
that was imposed upon revocation of supervised release.” Id. “[I]n determining ‘the maximum
term of supervised release . . . , 18 U.S.C. § 3583(h) requires that the term be reduced by all post-
revocation terms of imprisonment imposed with respect to the same underlying offense, not only
by the most-recent term of imprisonment.’” United States v. Price, 901 F.3d 746, 750 (6th Cir.
2018) (quoting United States v. Rodriguez, 775 F.3d 533, 534 (2d Cir. 2014)) (emphasis added).
In the present case, the maximum term of supervised release for the underlying conspiracy
to commit bank fraud and substantive bank fraud offenses, which are all class B felonies, is five
years. See 18 U.S.C. § 3583(b)(1).2 The district court sentenced Hinton to a twenty-four month
term of imprisonment for violating the terms of his supervised release. The district court properly
subtracted this newly-imposed term of incarceration from the maximum term of supervised
release, which lowered the permissible term of supervised release to three years—the term it
imposed. In 2019, however, Hinton served approximately three months of imprisonment for his
first violation of supervised release. Accordingly, the district court was required to also subtract
those three months from the new term of supervised release.3
2 While Hinton pleaded guilty to three counts, terms of supervised release may only run concurrently. See 18 U.S.C. § 3624(e); see also United States v. Evans, 559 F. App’x 475, 477–78 (6th Cir. 2014). 3 In his briefing on appeal, Hinton approximates this term of imprisonment as two months and twenty-six days. The exact timeframe is a question for the district court on remand.
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In Price, we held such an error is “obvious and not subject to reasonable dispute.” 901 F.3d
at 751. Since Price, the obviousness of the error is even more pronounced. As a result of the
district court’s obvious error, it sentenced Hinton to a term of release that exceeds the maximum
allowed under § 3583(h), thus affecting his “substantial rights and ‘the fairness, integrity, or public
reputation of the judicial proceedings.’” Id. (quoting United States v. Gardiner, 463 F.3d 445, 459
(6th Cir. 2006)). The error also affected Hinton’s substantial rights because “there is a reasonable
probability that, but for the error, [he] would have received a more favorable sentence.” United
States v. Hatcher, 947 F.3d 383, 394 (6th Cir. 2020) (quoting United States v. Wilson, 614 F.3d
219, 223 (6th Cir. 2010)). The miscalculation constitutes plain error requiring remand.
C. Substantive Reasonableness
Hinton argues his sentence was substantively unreasonable because the facts on which the
district court relied to justify the upward variance were not aggravating factors, but rather facts
already taken into account by the Guidelines range. As the Government points out, however, “[a]
guidelines range for a supervised-release violation ‘only considers the seriousness of the
underlying crime and the defendant’s criminal history,’ but ‘does not otherwise address a
defendant’s breach of trust by, for example, increasing the sentencing range for defendants who
have appeared before the district court several times for violating their supervised release.’”
Wilson, 630 F. App’x at 579–80 (quoting United States v. Branch, 405 F. App’x 967, 970 (6th Cir.
2010)). And “this court has held that a district court’s imposition of an above-Guidelines sentence
for a supervised release violation is substantively reasonable when a defendant has repeatedly
violated” the conditions. United States v. Glass, 749 F. App’x 434, 441–42 (6th Cir. 2018)
(collecting cases). Hinton’s sentence is substantively reasonable.
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III. CONCLUSION
For the foregoing reasons, Hinton’s term of supervised release is VACATED and
REMANDED for further proceedings consistent with this opinion, and all remaining aspects of
Hinton’s sentence are AFFIRMED.
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