NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0526n.06
No. 17-2524
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Oct 22, 2018 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN VINCENT EARL THOMPSON, ) DISTRICT OF MICHIGAN ) Defendant-Appellant. ) )
Before: KEITH, COOK, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Vincent Thompson was sentenced to twenty-one months’
imprisonment, a bottom-of-the-Guidelines sentence, for violating two conditions of his supervised
release less than a year after being released from prison. On appeal, Thompson argues that his
sentence was both procedurally and substantively unreasonable. But the record does not support
those arguments, and so we AFFIRM the district court’s judgment.
I.
In March 2003, a jury convicted Thompson of four counts: (1) possession of cocaine with
intent to distribute, 21 U.S.C. § 841(a)(1); (2) possession of marijuana with intent to distribute,
21 U.S.C. § 841(a)(1); (3) being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and
924(e)(1); and (4) possession of a firearm in furtherance of a drug crime, 18 U.S.C. § 924(c)(1)(A).
In May 2005, the district court sentenced Thompson to 420 months in prison. No. 17-2524, United States v. Thompson
In 2009, the district court found that Thompson’s trial counsel had rendered ineffective
assistance by failing to communicate a plea offer. As a result, the district court vacated
Thompson’s judgment pursuant to 28 U.S.C. § 2255. Thompson pled guilty to reduced charges,
possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm
in furtherance of a drug crime, 18 U.S.C. § 924(c). He was sentenced to 184 months in prison.
In October 2016, Thompson was released from prison and placed on supervised release.
Among other conditions, Thompson was prohibited from unlawfully possessing a controlled
substance and was required to notify his probation officer within seventy-two hours of being
arrested or questioned by a law enforcement officer.
Thompson tested positive for cocaine less than a year later. In fact, from August through
November 2017, Thompson repeatedly tested positive for cocaine. In December 2017, the police
stopped Thompson, detained him, and took him to the county jail. He was carrying $4,000 in
small bills and had another $1,600 cash hidden in his underwear. A drug-sniffing dog detected
drug residue on the money, and it was confiscated. Thompson did not tell his probation officer
about this incident.
At his supervised release revocation hearing, Thompson admitted to testing positive five
times for cocaine and to not contacting his probation officer after the police stopped him. The
positive drug test result was a B-grade violation and the failure to notify was a C-grade violation,
with the more serious being the B-grade violation. Thompson had a criminal history category of
VI, which resulted in a Guidelines range of twenty-one to twenty-seven months. The government
asked for a sentence within the Guidelines range. Thompson asked for an in-patient treatment
program. The court ultimately sentenced Thompson to twenty-one months in prison. Thompson
timely appealed.
2 No. 17-2524, United States v. Thompson
II.
A criminal sentence must be both procedurally and substantively reasonable. United States
v. Morgan, 687 F.3d 688, 693 (6th Cir. 2012). Procedural reasonableness requires the court to
“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) (citing Gall v. United States, 552 U.S.
38, 51 (2007)). Substantive reasonableness, however, focuses on whether a “sentence is too long
(if a defendant appeals).” Id. at 442. “The point is not that the district court failed to consider a
factor or considered an inappropriate factor; that’s the job of procedural unreasonableness.” Id.
Instead, substantive unreasonableness involves “a complaint that the court placed too much weight
on some of the § 3553(a) factors and too little on others in sentencing the individual.” Id. To be
substantively reasonable, a sentence must be “proportionate to the seriousness of the circumstances
of the offense and offender, and 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) (quotations
and citations omitted). We review claims of both procedural and substantive unreasonableness for
an abuse of discretion, although we review the district court’s factual findings for clear error and
its legal conclusions de novo. Rayyan, 885 F.3d at 440, 442.
III.
Procedural Reasonableness. Thompson first argues that the district court procedurally
erred by interpreting 18 U.S.C. § 3583(g) to require revocation of supervised release because of
Thompson’s multiple positive drug tests. Under § 3583(g), if the defendant “tests positive for
illegal controlled substances more than 3 times over the course of 1 year,” then the court “shall
3 No. 17-2524, United States v. Thompson
revoke the term of supervised release.” But under § 3583(d), “[t]he court shall consider whether
the availability of appropriate substance abuse treatment programs . . . warrants an exception . . .
from the rule of section 3583(g).” Essentially, § 3583(d) “restore[s] discretion to the district
judge.” United States v. Crace, 207 F.3d 833, 837 (6th Cir. 2000). Thompson makes a general
allegation that the district court improperly treated revocation as mandatory, but he points to
nothing in the record supporting this argument. Thompson’s failure to cite the record is not
surprising, given that the record supports no such claim.
The district court said specifically that “[i]f the positive drug tests were the only thing in
front of the Court, I might agree” with Thompson that he should not be incarcerated. This alone
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0526n.06
No. 17-2524
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Oct 22, 2018 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN VINCENT EARL THOMPSON, ) DISTRICT OF MICHIGAN ) Defendant-Appellant. ) )
Before: KEITH, COOK, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Vincent Thompson was sentenced to twenty-one months’
imprisonment, a bottom-of-the-Guidelines sentence, for violating two conditions of his supervised
release less than a year after being released from prison. On appeal, Thompson argues that his
sentence was both procedurally and substantively unreasonable. But the record does not support
those arguments, and so we AFFIRM the district court’s judgment.
I.
In March 2003, a jury convicted Thompson of four counts: (1) possession of cocaine with
intent to distribute, 21 U.S.C. § 841(a)(1); (2) possession of marijuana with intent to distribute,
21 U.S.C. § 841(a)(1); (3) being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and
924(e)(1); and (4) possession of a firearm in furtherance of a drug crime, 18 U.S.C. § 924(c)(1)(A).
In May 2005, the district court sentenced Thompson to 420 months in prison. No. 17-2524, United States v. Thompson
In 2009, the district court found that Thompson’s trial counsel had rendered ineffective
assistance by failing to communicate a plea offer. As a result, the district court vacated
Thompson’s judgment pursuant to 28 U.S.C. § 2255. Thompson pled guilty to reduced charges,
possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm
in furtherance of a drug crime, 18 U.S.C. § 924(c). He was sentenced to 184 months in prison.
In October 2016, Thompson was released from prison and placed on supervised release.
Among other conditions, Thompson was prohibited from unlawfully possessing a controlled
substance and was required to notify his probation officer within seventy-two hours of being
arrested or questioned by a law enforcement officer.
Thompson tested positive for cocaine less than a year later. In fact, from August through
November 2017, Thompson repeatedly tested positive for cocaine. In December 2017, the police
stopped Thompson, detained him, and took him to the county jail. He was carrying $4,000 in
small bills and had another $1,600 cash hidden in his underwear. A drug-sniffing dog detected
drug residue on the money, and it was confiscated. Thompson did not tell his probation officer
about this incident.
At his supervised release revocation hearing, Thompson admitted to testing positive five
times for cocaine and to not contacting his probation officer after the police stopped him. The
positive drug test result was a B-grade violation and the failure to notify was a C-grade violation,
with the more serious being the B-grade violation. Thompson had a criminal history category of
VI, which resulted in a Guidelines range of twenty-one to twenty-seven months. The government
asked for a sentence within the Guidelines range. Thompson asked for an in-patient treatment
program. The court ultimately sentenced Thompson to twenty-one months in prison. Thompson
timely appealed.
2 No. 17-2524, United States v. Thompson
II.
A criminal sentence must be both procedurally and substantively reasonable. United States
v. Morgan, 687 F.3d 688, 693 (6th Cir. 2012). Procedural reasonableness requires the court to
“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) (citing Gall v. United States, 552 U.S.
38, 51 (2007)). Substantive reasonableness, however, focuses on whether a “sentence is too long
(if a defendant appeals).” Id. at 442. “The point is not that the district court failed to consider a
factor or considered an inappropriate factor; that’s the job of procedural unreasonableness.” Id.
Instead, substantive unreasonableness involves “a complaint that the court placed too much weight
on some of the § 3553(a) factors and too little on others in sentencing the individual.” Id. To be
substantively reasonable, a sentence must be “proportionate to the seriousness of the circumstances
of the offense and offender, and 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) (quotations
and citations omitted). We review claims of both procedural and substantive unreasonableness for
an abuse of discretion, although we review the district court’s factual findings for clear error and
its legal conclusions de novo. Rayyan, 885 F.3d at 440, 442.
III.
Procedural Reasonableness. Thompson first argues that the district court procedurally
erred by interpreting 18 U.S.C. § 3583(g) to require revocation of supervised release because of
Thompson’s multiple positive drug tests. Under § 3583(g), if the defendant “tests positive for
illegal controlled substances more than 3 times over the course of 1 year,” then the court “shall
3 No. 17-2524, United States v. Thompson
revoke the term of supervised release.” But under § 3583(d), “[t]he court shall consider whether
the availability of appropriate substance abuse treatment programs . . . warrants an exception . . .
from the rule of section 3583(g).” Essentially, § 3583(d) “restore[s] discretion to the district
judge.” United States v. Crace, 207 F.3d 833, 837 (6th Cir. 2000). Thompson makes a general
allegation that the district court improperly treated revocation as mandatory, but he points to
nothing in the record supporting this argument. Thompson’s failure to cite the record is not
surprising, given that the record supports no such claim.
The district court said specifically that “[i]f the positive drug tests were the only thing in
front of the Court, I might agree” with Thompson that he should not be incarcerated. This alone
shows that the court recognized it was not required to revoke Thompson’s supervised release
because he tested positive for cocaine. Further statements reinforce this position. The court
explained that its decision was not based on the failed drug tests alone because the drug tests were
“not the only matter in front of the Court.” The court clarified that the contact with the police was
“very serious,” that Thompson was carrying a “significant amount of cash” tainted with drug
residue, and that “[w]hen people have $1600 in their underwear, I do believe that something is
afoot.” The court again clarified that “if it was only the drug positive tests . . . I probably wouldn’t
be looking at revoking him, but it isn’t just the drug addiction. It isn’t just the positive testing.”
The district court’s repeated statements indicating that it might consider not revoking
Thompson’s supervised release if the drug tests were the only problem show that the court did not
believe it was required to revoke Thompson’s supervised release because of failed drug tests.
There is no support for the claim that the court assumed it was required to revoke Thompson’s
supervised release under § 3583(g). Rather, the record shows that the court found revocation
4 No. 17-2524, United States v. Thompson
appropriate because of the totality of the violations Thompson committed while on supervised
release.
Substantive Reasonableness. Thompson next argues that his sentence is substantively
unreasonable because the district court gave too little weight to his chronic substance abuse and
his need for medical care and gave too much weight to the suspicious circumstances of his police
contact. Thompson also argues that the sentence was greater than necessary to comply with the
purposes of § 3553. This court applies “a presumption of reasonableness” to a within-Guidelines
sentence. United States v. Mosley, 635 F.3d 859, 865 (6th Cir. 2011). Here, the district court
imposed a bottom-of-the-Guidelines sentence, and Thompson has not rebutted the presumption
that this was reasonable.
Thompson offers no specific reason why the district court should have given more weight
to his substance abuse and need for medical care. The district court did express sympathy for those
struggling with drug addiction, stating “I do believe that drug addiction is pretty insidious and
often very difficult to overcome.” But the record demonstrates that, though Thompson requested
the district court send him to an in-patient drug treatment program, he had not availed himself of
drug treatment opportunities during the fourteen years he had spent in prison. When the district
court asked Thompson if he had received drug treatment while in prison, Thompson indicated he
had not. Thompson said he was ineligible for drug treatment—but Thompson was only ineligible
to receive time off his sentence if he successfully completed a drug treatment program. Anyone,
including Thompson, could voluntarily participate in the residential drug program.
Thompson also offers no specific reason why the court gave too much weight to the
circumstances of his police contact. The district court determined that Thompson’s contact with
the police was “very serious.” And the court noted that, though he was not charged with it, when
5 No. 17-2524, United States v. Thompson
Thompson was stopped by the police in December 2017, he was with a known felon—another
breach of his supervised release conditions. Overall, the court found that Thompson was not
“trying to conduct himself as a law-abiding citizen.”
Thompson has not established that imposing a bottom-of-the-Guidelines sentence was
greater than necessary to comply with the purposes of § 3553(a), given that Thompson admitted
to violating numerous conditions of his release less than a year after getting out of prison. Under
these circumstances, there is no indication the district court abused its discretion.
***
Thompson has failed to show his sentence was either procedurally or substantively
unreasonable. Accordingly, we AFFIRM the judgment of the district court.