United States v. David Humphries, Jr.

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 15, 2024
• Docket: 23-3411
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0122n.06

Case No. 23-3411

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 15, 2024 ) KELLY L. STEPHENS, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF DAVID HUMPHRIES, JR., ) OHIO Defendant-Appellant. ) OPINION )

Before: KETHLEDGE, READLER, and BLOOMEKATZ, Circuit Judges.

CHAD A. READLER, Circuit Judge. While on federal supervised release, David

Humphries, Jr. was convicted of a host of state law offenses. For these and other violations of the

terms of his release, the district court sentenced Humphries to twenty-four months of confinement.

On appeal, Humphries challenges the procedural and substantive reasonableness of his sentence.

The district court’s sentencing analysis, while admittedly sparse, was not procedurally deficient. Nor

was the within-Guidelines sentence substantively unreasonable. Accordingly, we affirm.

I.

Following a guilty plea to being a felon in possession of a firearm, the district court

sentenced Humphries to thirty months of confinement and three years of supervised release.

Humphries completed his term of confinement. But he struggled to comply with the conditions of

his supervised release. He failed numerous drug tests, disobeyed instructions from the probation No. 23-3411, United States v. Humphries

office, and did not attend required cognitive behavioral treatment. Those shortcomings led the

district court to order Humphries to complete inpatient drug treatment. When Humphries again

shirked his obligations, the court ordered him to serve four months of confinement followed by

two years of supervised release.

During his subsequent release term, Humphries’s violations became more serious. He

pleaded guilty in state court to felony escape and was found guilty at a bench trial of aggravated

robbery with a firearm, robbery, abduction, and petty theft. The state court ordered Humphries to

serve a total of six years of confinement.

Following these state convictions, the federal government again sought to revoke

Humphries’s supervised release. It requested a term of imprisonment within the Guidelines range,

eighteen to twenty-four months of confinement. See U.S.S.G. § 7B1.4(a) (outlining terms of

imprisonment for violations of supervised release). Humphries offered a number of grounds he

believed favored a more lenient sentence: he was working toward a business degree, had children

to support, had his own clothing company, and was participating in rehabilitative programs in

prison. Humphries asked that any federal sentence be served concurrently with his state sentence.

After inquiring into Humphries’s convictions, during which Humphries insisted that he

was innocent of all but the escape charge, the district court explained its sentencing considerations.

The court viewed Humphries as a “motivated” and “intelligent guy” with “a lot of promise.”

Nonetheless, the district court ordered Humphries to serve twenty-four months of confinement,

consecutive with his state sentence.

The district court asked the parties if they had any objections. Counsel offered none. But

Humphries himself interjected. He asked for a lower sentence, reasserting his innocence and

reiterating his desire to spend time with his children. The district court responded that it was bound

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by Humphries’s convictions. Humphries then challenged the court’s decision to run the sentences

consecutively. Leaving its decision intact, the district court noted the presumption that the

sentences run consecutively.

This timely appeal followed.

II.

A.1. Humphries believes that his sentence was procedurally unreasonable because the

sentencing judge inadequately addressed the various sentencing factors. Before tackling the

substance of that argument, however, we must determine our standard of review. When properly

preserved, we review for an abuse of discretion. United States v. Taylor, 800 F.3d 701, 713 (6th

Cir. 2015). But where a defendant either fails to object altogether or “does not clearly

articulate . . . the grounds upon which the objection is based,” we review for plain error. United

States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). That manner of review also applies to a

defendant’s failure to challenge “the adequacy of the court’s explanation for the sentence.” United

States v. Thomas-Mathews, 81 F.4th 530, 539 (6th Cir. 2023) (citation omitted).

Here, the record is somewhat murky. After announcing the sentence, the district court,

consistent with our case law, asked the parties if they had any additional objections. See Bostic,

371 F.3d at 872. Humphries’s counsel stated, “Nothing further. Thank you.” But Humphries

spoke up: “I have something to say, for sure.” Humphries reasserted his innocence, explained that

he already had a six-year state sentence, and indicated that he wanted time with his children. He

finished by questioning the value of imprisoning him for “two extra years.”

To Humphries’s eye, these statements preserved the issue of procedural reasonableness.

We disagree. At no point did Humphries dispute the brevity of the district court’s explanation or

failure to address a particular statutory factor. Best understood, Humphries’s attacks targeted the

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sentence itself, which strikes us as substantive rather than procedural. See United States v. Johns,

65 F.4th 891, 893 (6th Cir. 2023) (noting “a substantive reasonableness challenge focuses on the

length of the sentence itself”). That conclusion is reinforced by the purpose behind the

preservation requirement, namely, to put the district court on notice of a potential error. See Taylor,

800 F.3d at 715 (finding a “fleeting and inexplicit” comment did not “put the district court on

notice of [a procedural objection]”). Humphries’s statements made it clear that he disagreed with

the sentence, but they did nothing to alert the court to a potential procedural error.

Accordingly, we review for plain error. This requires Humphries “to show (1) error (2) that

was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the

fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516

F.3d 382, 386 (6th Cir. 2008) (en banc) (cleaned up).

2. As the name suggests, procedural reasonableness concerns how the court went about

reaching the sentence, not the sentence itself. See United States v. Tellez, 86 F.4th 1148, 1154 (6th

Cir. 2023). Such a challenge can take many forms. Humphries raises just one: the district court

failed to explain adequately the reasoning behind his sentence. To that end, the district court

“should set forth enough to satisfy [us] that [it] has considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551

U.S. 338, 356 (2007). This includes creating a record to “‘reflect[] consideration of certain factors’

listed in 18 U.S.C. § 3553.” United States v. Johnson, 403 F.3d 813, 815 (6th Cir. 2005) (citation

omitted). But we do not require a “‘ritual incantation’ of the [§ 3553] factors.” Id. at 816 (citation

omitted).

In many respects, we agree with Humphries that the district court’s discussion of its

sentencing rationale was less than ideal. Case in point, the court made no express reference to any

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of the § 3553 factors. See Gall v. United States, 552 U.S. 38, 49–50 (2007). All we have in the

record are observations that Humphries is a “motivated” and “intelligent guy” yet was “convicted

of other felonies,” coupled with the Guidelines range and the sentence imposed. On the other

hand, the district court noted that it was familiar with Humphries’s history and characteristics—

having sentenced him three times before—which perhaps explains why the discussion was so

short. Cf. United States v. Mendez, 498 F.3d 423, 428 (6th Cir. 2007) (permitting review of “the

more thorough explanation furnished at the original sentencing” when considering a resentencing

case).

But as in Vonner, we need not decide whether the district court’s “brief explanation for this

sentence sufficed” because Humphries fails to satisfy the other three elements of plain error. 516

F.3d at 387. First, we doubt whether the deficiency was so “obvious or clear” that the district court

and the government were “derelict in countenancing it.” Id. at 386 (citation omitted). Again, the

district court need not list the § 3553 factors, use “magic words,” or provide “a mechanical

recitation of every factor or provision relied upon.” United States v. Potts, 947 F.3d 357, 371 (6th

Cir. 2020) (citation omitted). Nor need the court always offer a “lengthy explanation” should it

“decide[] simply to apply the Guidelines to a particular case.” Rita, 551 U.S. at 356. So we cannot

say the district court’s approach, even if error, was “clearly contrary to the law.” Johnson v. United

States, 520 U.S. 461, 468 (1997).

Second, Humphries fails to demonstrate how any error affected his substantial rights. To

do so, he must show that “there is a reasonable likelihood the error[] impacted the sentence.”

United States v. Doyle, 711 F.3d 729, 735 (6th Cir. 2013) (citations omitted). We do not see any

such effect. Consider the aggravating evidence against Humphries. This was his third revocation

of supervised release in as many years—despite the district court offering him leniency in the past.

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And in this string of offenses, the latest were violent felonies, the most serious of the bunch.

Adding in the fact that Humphries’s new convictions would likely increase his criminal history

category to VI, it was reasonable to expect a sentence at the top of the Guidelines range. We do

not see a “reasonable likelihood” that additional explanation from the district court would have led

to a different sentence.

Third, we do not believe this error “affected the fairness, integrity, or public reputation of

the judicial proceedings.” Vonner, 516 F.3d at 386 (citation omitted). That is the case when, for

instance, a procedural error materially altered the district court’s deliberative process and resulted

in a more severe sentence. See, e.g., Rosales-Mireles v. United States, 585 U.S. 129, 143 (2018)

(miscalculating the Guidelines range); United States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010)

(attributing criminal acts to the wrong individual). Not so here. Any error concerned only the

depth of the court’s explanation of its sentence, not the sentence itself. Nor, for reasons already

explained, did any error lead to a more severe sentence, let alone a “miscarriage of justice.” United

States v. Olano, 507 U.S. 725, 736 (1993) (citation omitted).

Humphries invokes United States v. Byrd, 843 F. App’x 751 (6th Cir. 2021). But in addition

to being unpublished, the case is distinguishable. There, the standard of review was abuse of

discretion, the sentence was double the Guidelines range, and the district court discussed only the

defendant’s criminal conduct. Id. at 754–58. Here, on the other hand, we review for plain error,

Humphries’s sentence was within the Guidelines range, and the district court credited his positive

characteristics—not merely his misconduct.

Nor does United States v. Thomas-Mathews, 81 F.4th 530 (6th Cir. 2023), affect our

conclusion. There, the district court failed to respond to many of the defendant’s arguments for a

lower sentence, and the court’s discussion of the defendant’s “history and characteristics” was

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limited to his criminal history. Id. at 546. In today’s case, the district court’s explanation, albeit

terse, at least demonstrated some appreciation for Humphries’s mitigation arguments and

acknowledged more than his criminal history. The court noted that Humphries is intelligent and

motivated, does not have a drug problem, and shows “a lot of promise.” This was “something

more than a simple and conclusory judicial assertion that the court ha[d] considered ‘the nature

and circumstances of the offense and the history and characteristics of the defendant.’” Id. (cleaned

up). The court’s explanation was not so procedurally deficient to constitute plain error.

B. Next, Humphries challenges the substantive reasonableness of his sentence. As this

issue need not be preserved, we review it for an abuse of discretion, irrespective of Humphries’s

objection. United States v. Houston, 529 F.3d 743, 755 (6th Cir. 2008). At the same time, a

sentence within the Guidelines range—like the one here—is presumed reasonable. Vonner, 516

F.3d at 389. To overcome that presumption, Humphries bears the burden to show that the district

court picked the sentence arbitrarily, relied on impermissible factors, failed to consider relevant

factors, or gave an unreasonable amount of weight to a factor. United States v. Lapsins, 570 F.3d

758, 772 (6th Cir. 2009) (citation omitted). “The fact that [we] might reasonably have concluded

that a different sentence was appropriate is insufficient to justify reversal.” Gall, 552 U.S. at 51.

Humphries fails to clear this high hurdle. He merely reiterates the mitigation arguments

he presented below and accuses the district court of failing to consider all of the relevant sentencing

factors. Even with the discussed shortcomings, however, there is no evidence that the district court

ignored the appropriate factors or improperly weighed them. See United States v. Jackson, 466

F.3d 537, 540 (6th Cir. 2006) (noting that the failure to “give the defendant the exact sentence he

sought is not a cognizable basis to appeal”).

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And then consider Humphries’s recidivism. This was his third set of violations of the terms

of supervised release in under three years. In like circumstances, we have affirmed above-

Guidelines sentences. E.g., United States v. Brown, 501 F.3d 722, 726 (6th Cir. 2007) (third

violation); United States v. Kirby, 418 F.3d 621, 628 (6th Cir. 2005) (same). Not to mention that

Humphries’s most recent violation (aggravated robbery with a firearm) was both serious and

“similar to the crime for which []he was originally convicted” (illegal firearm possession). Kirby,

418 F.3d at 628. Taking this history together with the presumption of reasonableness, Humphries’s

within-Guidelines sentence is not substantively unreasonable. Simply put, we see no abuse of

discretion.

* * * * *

We affirm the judgment of the district court.