NOT RECOMMENDED FOR PUBLICATION File Name: 21a0229n.06
No. 20-6398
UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Apr 30, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT NEPHTHALI DAMIAN DACHOUTE, ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE Defendant-Appellant. ) ) )
BEFORE: GIBBONS, COOK, and LARSEN, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Nephthali Dachoute appeals his five-month
sentence for violating the conditions of his supervised release. On appeal, he argues that his
sentence is procedurally and substantively unreasonable. We disagree and affirm.
I.
After pleading guilty to three firearms offenses and one drug offense1 and serving an
approximately seven-year prison sentence, Dachoute started a three-year term of supervised
release on May 1, 2017. Dachoute’s conditions of release included, among other things, refraining
from committing any criminal offenses, mandatory participation in mental health treatment, and
drug testing.
1 See 21 U.S.C. § 846; 18 U.S.C. § 924(c); 18 U.S.C. § 922(k); 18 U.S.C. § 922(g)(1). No. 20-6398, United States v. Dachoute
The first year of Dachoute’s supervised release was uneventful. However, in 2018, the
probation office filed a number of petitions to revoke Dachoute’s probation, and the district court
held a hearing on the alleged violations. After Dachoute admitted guilt to some of the violations,
the district court revoked his supervised release. The court sentenced him to eleven months’
incarceration, followed by a return to supervised release for the remainder of Dachoute’s original
term.
In August 2019—a few weeks after Dachoute completed his eleven-month sentence—the
probation office filed another petition to revoke his supervised release. Based on the violations
alleged in the petition, the district court issued a warrant for Dachoute’s arrest. After he was
arrested, a magistrate judge ordered Dachoute’s detention pending a hearing on the alleged
violations.
In December 2019, the parties filed a joint motion for Dachoute’s release from custody.
The court agreed to release Dachoute, but it issued an order requiring him to live at a group home
named Aphesis House as a new condition of his release. The order explicitly stated that Dachoute
was not permitted to “change his residence without advance approval from the probation officer.”
DE 664, Order, PageID 3196.
In March 2020, the district court held a hearing on the alleged August 2019 violations.
Dachoute once again admitted guilt to some of the violations. Instead of sentencing Dachoute to
another period of incarceration, the court sentenced him to time served and ordered him to continue
“on supervised release under the same conditions previously imposed.” DE 673, Order, PageID
3221.
In September 2020, the Probation Office filed another petition alleging that Dachoute had
(1) committed an uncharged theft, (2) tested positive for marijuana, (3) moved out of the Aphesis
-2- No. 20-6398, United States v. Dachoute
House without approval from his probation officer, and (4) stopped taking his prescribed
psychiatric medication. The district court issued a summons and held a hearing on these alleged
At his hearing, Dachoute admitted to the second, third, and fourth alleged violations. But
he also provided context for those violations. He explained that he had chosen to self-medicate
with marijuana instead of taking his prescribed medication because his medication was preventing
him from sleeping, causing him to hear voices in his head, and “killing [him] inside.” DE 717,
Revocation Hr’g Tr., PageID 3525. Marijuana, on the other hand, gave him “peace of mind.” Id.
at 3526. Dachoute also informed the court that he had moved out of the Aphesis House because
people were stealing his things. Additionally, even though he was struggling with his medication
and had left the group home, he was employed, working towards his degree, and had not missed a
single appointment with his psychiatrist.
After giving Dachoute the opportunity to speak, the district court noted that its
responsibility was “to impose a sentence that is sufficient but not greater than necessary to
accomplish the purposes of the sentencing laws.” Id. at 3535. The court told Dachoute that he
“ha[d] to be accountable,” and, even though the court was taking Dachoute’s mental health
diagnoses into account, “at some point [the court] can’t continue to let [Dachoute] determine [his]
treatment plan.” Id. Along those same lines, the court stated that it “need[ed] to find some way
to deter” Dachoute from future violations and to get him to “show respect for the obligations” of
“the Court’s order.” Id. at 3535–36. After taking those considerations into account, the court
sentenced Dachoute to five months’ imprisonment, followed by a return to “supervised release for
the remainder of the term.” Id. at 3537. Five months was the low end of the range recommended
by USSG § 7B1.4.
-3- No. 20-6398, United States v. Dachoute
After announcing the sentence, the district court asked Dachoute’s lawyer whether he had
any objections. In response, counsel asked the court whether it would consider delaying the start
of Dachoute’s sentence. When the court refused that request, Dachoute’s lawyer did not raise any
further objections. Dachoute timely appealed.
II.
Dachoute’s first argument is that his sentence is procedurally unreasonable. For a sentence
to be procedurally reasonable, “[t]he court must properly calculate the guidelines range, treat that
range as advisory, consider the sentencing factors in 18 U.S.C. § 3553(a), refrain from considering
impermissible factors, select the sentence based on facts that are not clearly erroneous, and
adequately explain why it chose the sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th
Cir. 2018). Dachoute did not argue that his sentence was procedurally unreasonable in the district
court, so our review of this issue is limited to review for plain error. United States v. Vonner, 516
F.3d 382, 385 (6th Cir. 2008) (en banc).
In this case, the district court did not err because it adequately explained the reason for
Dachoute’s sentence with implicit references to the § 3553(a) factors. The court discussed
Dachoute’s mental health and took “into consideration” that Dachoute has been “diagnosed with
severe mental issues.” DE 717, Sentencing Tr., PageID 3535; see 18 U.S.C. § 3553(a)(1). The
court recognized that there are tools available in many state courts that allow judges to try to deter
persons from future supervised release violations without relying on time in prison but
acknowledged that it did not have access to those tools.
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NOT RECOMMENDED FOR PUBLICATION File Name: 21a0229n.06
No. 20-6398
UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Apr 30, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT NEPHTHALI DAMIAN DACHOUTE, ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE Defendant-Appellant. ) ) )
BEFORE: GIBBONS, COOK, and LARSEN, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Nephthali Dachoute appeals his five-month
sentence for violating the conditions of his supervised release. On appeal, he argues that his
sentence is procedurally and substantively unreasonable. We disagree and affirm.
I.
After pleading guilty to three firearms offenses and one drug offense1 and serving an
approximately seven-year prison sentence, Dachoute started a three-year term of supervised
release on May 1, 2017. Dachoute’s conditions of release included, among other things, refraining
from committing any criminal offenses, mandatory participation in mental health treatment, and
drug testing.
1 See 21 U.S.C. § 846; 18 U.S.C. § 924(c); 18 U.S.C. § 922(k); 18 U.S.C. § 922(g)(1). No. 20-6398, United States v. Dachoute
The first year of Dachoute’s supervised release was uneventful. However, in 2018, the
probation office filed a number of petitions to revoke Dachoute’s probation, and the district court
held a hearing on the alleged violations. After Dachoute admitted guilt to some of the violations,
the district court revoked his supervised release. The court sentenced him to eleven months’
incarceration, followed by a return to supervised release for the remainder of Dachoute’s original
term.
In August 2019—a few weeks after Dachoute completed his eleven-month sentence—the
probation office filed another petition to revoke his supervised release. Based on the violations
alleged in the petition, the district court issued a warrant for Dachoute’s arrest. After he was
arrested, a magistrate judge ordered Dachoute’s detention pending a hearing on the alleged
violations.
In December 2019, the parties filed a joint motion for Dachoute’s release from custody.
The court agreed to release Dachoute, but it issued an order requiring him to live at a group home
named Aphesis House as a new condition of his release. The order explicitly stated that Dachoute
was not permitted to “change his residence without advance approval from the probation officer.”
DE 664, Order, PageID 3196.
In March 2020, the district court held a hearing on the alleged August 2019 violations.
Dachoute once again admitted guilt to some of the violations. Instead of sentencing Dachoute to
another period of incarceration, the court sentenced him to time served and ordered him to continue
“on supervised release under the same conditions previously imposed.” DE 673, Order, PageID
3221.
In September 2020, the Probation Office filed another petition alleging that Dachoute had
(1) committed an uncharged theft, (2) tested positive for marijuana, (3) moved out of the Aphesis
-2- No. 20-6398, United States v. Dachoute
House without approval from his probation officer, and (4) stopped taking his prescribed
psychiatric medication. The district court issued a summons and held a hearing on these alleged
At his hearing, Dachoute admitted to the second, third, and fourth alleged violations. But
he also provided context for those violations. He explained that he had chosen to self-medicate
with marijuana instead of taking his prescribed medication because his medication was preventing
him from sleeping, causing him to hear voices in his head, and “killing [him] inside.” DE 717,
Revocation Hr’g Tr., PageID 3525. Marijuana, on the other hand, gave him “peace of mind.” Id.
at 3526. Dachoute also informed the court that he had moved out of the Aphesis House because
people were stealing his things. Additionally, even though he was struggling with his medication
and had left the group home, he was employed, working towards his degree, and had not missed a
single appointment with his psychiatrist.
After giving Dachoute the opportunity to speak, the district court noted that its
responsibility was “to impose a sentence that is sufficient but not greater than necessary to
accomplish the purposes of the sentencing laws.” Id. at 3535. The court told Dachoute that he
“ha[d] to be accountable,” and, even though the court was taking Dachoute’s mental health
diagnoses into account, “at some point [the court] can’t continue to let [Dachoute] determine [his]
treatment plan.” Id. Along those same lines, the court stated that it “need[ed] to find some way
to deter” Dachoute from future violations and to get him to “show respect for the obligations” of
“the Court’s order.” Id. at 3535–36. After taking those considerations into account, the court
sentenced Dachoute to five months’ imprisonment, followed by a return to “supervised release for
the remainder of the term.” Id. at 3537. Five months was the low end of the range recommended
by USSG § 7B1.4.
-3- No. 20-6398, United States v. Dachoute
After announcing the sentence, the district court asked Dachoute’s lawyer whether he had
any objections. In response, counsel asked the court whether it would consider delaying the start
of Dachoute’s sentence. When the court refused that request, Dachoute’s lawyer did not raise any
further objections. Dachoute timely appealed.
II.
Dachoute’s first argument is that his sentence is procedurally unreasonable. For a sentence
to be procedurally reasonable, “[t]he court must properly calculate the guidelines range, treat that
range as advisory, consider the sentencing factors in 18 U.S.C. § 3553(a), refrain from considering
impermissible factors, select the sentence based on facts that are not clearly erroneous, and
adequately explain why it chose the sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th
Cir. 2018). Dachoute did not argue that his sentence was procedurally unreasonable in the district
court, so our review of this issue is limited to review for plain error. United States v. Vonner, 516
F.3d 382, 385 (6th Cir. 2008) (en banc).
In this case, the district court did not err because it adequately explained the reason for
Dachoute’s sentence with implicit references to the § 3553(a) factors. The court discussed
Dachoute’s mental health and took “into consideration” that Dachoute has been “diagnosed with
severe mental issues.” DE 717, Sentencing Tr., PageID 3535; see 18 U.S.C. § 3553(a)(1). The
court recognized that there are tools available in many state courts that allow judges to try to deter
persons from future supervised release violations without relying on time in prison but
acknowledged that it did not have access to those tools. DE 717, Sentencing Tr., PageID 3535–
36; see 18 U.S.C. § 3553(a)(3). Additionally, the court considered the “need for deterrence,” the
“need for [Dachoute] to show respect,” and the need for “[Dachoute] to be held accountable.” DE
717, Sentencing Tr., PageID 3537; see 18 U.S.C. § 3553(a)(2). After taking all of these
-4- No. 20-6398, United States v. Dachoute
considerations into account, the district court chose a sentence at the low end of the range
recommended by USSG § 7B1.4. DE 717, Sentencing Tr., PageID 3537; see 18 U.S.C.
§ 3553(a)(4). Although Dachoute is correct that the district court never referenced § 3553(a) by
name, there is no requirement that it do so when—as here—its discussion makes it clear that it had
the § 3553(a) factors in mind. See United States v. McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006).
Dachoute also argues that the district court’s discussion was insufficient because the court
failed to consider mitigating circumstances, such as his need for mental health treatment.
However, this argument is not supported by the record. The district court gave Dachoute and his
attorney the opportunity to present all of his mitigating evidence. After listening to that evidence,
the court said:
I take into consideration – you’ve been diagnosed with severe mental issues. And recognizing that, we tried to address it. We tried to address it by providing you mental health counseling. We tried to address it by recognizing the substance abuse issues and giving you treatment for that. But at some point I can’t continue to let you determine your treatment plan. And that’s essentially what you’ve done.
DE 717, Sentencing Tr., PageID 3535. The court also noted that it had been lenient in the past and
emphasized that the continuing nature of the violations showed a need for deterrence from future
violations. These statements make clear that the district court listened to Dachoute’s arguments,
“considered the supporting evidence, was fully aware of the defendant’s circumstances, and took
them into account in sentencing him.” Vonner, 516 F.3d at 387 (internal quotation marks omitted)
(quoting Rita v. United States, 551 U.S. 338, 358 (2007)). The district court did not plainly err in
sentencing Dachoute.
III.
Dachoute’s second argument is that his sentence is substantively unreasonable. An
argument that a sentence is substantively unreasonable is an argument “that the court placed too
-5- No. 20-6398, United States v. Dachoute
much weight on some of the § 3553(a) factors and too little on others in sentencing the individual.”
Rayyan, 885 F.3d at 442. There is a rebuttable presumption that a supervised release revocation
sentence within the range recommended by USSG § 7B1.4 is substantively reasonable. United
States v. Melton, 782 F.3d 306, 313 (6th Cir. 2015). We review the substantive reasonableness of
a sentence for abuse of discretion. Id. at 312.
Dachoute’s argument that his sentence is substantively unreasonable merely restates his
argument that his sentence is procedurally unreasonable, and it fails for the reasons explained
above. See CA6 R.35, Appellant Br., at 13 (“Because the district court did not satisfactorily
establish in the record that it considered the § 3553(a) factors, the sentence is also substantively
unreasonable.”). To the extent that he raises the additional argument that his sentence is
substantively unreasonable because the court gave unreasonably little weight to his mitigating
circumstances, that too is without merit. As discussed above, the district court considered
Dachoute’s history of violations, the seriousness of his current violations, and his mitigating
evidence. In light of those considerations, the court decided that a within-range, five-month
sentence was “sufficient but not greater than necessary to comply with the purposes of § 3553(a).”
United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal quotation marks omitted)
(quoting United States v. Smith, 505 F.3d 463, 470 (6th Cir. 2007)). That decision is entitled to a
presumption of reasonableness that Dachoute has not rebutted. See Melton, 782 F.3d at 313.
Therefore, the district court did not abuse its discretion.
IV.
For the reasons discussed above, we affirm.
-6-