United States v. Wallace Malone

STATES, Plaintiff-Appellee, UNITED MALONE, Defendant-

Wallace

Appellant.

No. 10-1261. of Appeals, States Court

Sixth Circuit.

Dec. 2010. MOORE, SUTTON and

Before: FRIEDMAN,* Judges. Circuit SUTTON, Judge. Circuit justice system has The federal criminal Malone three chances at given Wallace in form early prison, release from one house, discharge halfway of a re- other two in the form badly. After Ma- Each one ended lease. violated his most recent terms su- lone release, the district court was pervised prison, him im- pleased. It sent back variance from posing two-month of 4 to 10 advisory guidelines range that the sentence months. Malone claims substantively unrea- procedurally and affirm. disagree We sonable. I. pled guilty being

In of a firearm and to possession felon base. The district distributing cocaine jail him to 48 months court sentenced release, years and 3 prison term to 38 months later reduced retroactive amend- Congress’s based on * Circuit, Friedman, sitting by designation. Judge Federal Daniel M. Senior Appeals the United States Court of

965 notify probation to the sentencing merits crack-cocaine his officer within 72 hours early guidelines. (3) Malone obtained an re- police contact, using marijuana and halfway a (4) lease to house. But when he using alcohol. Under these circum- early the (by violated release conditions stances, the policy relevant for statements alcohol), drinking halfway the house dis- supervised-release violations a recommend him, charged forcing him to return to cus- 4-10 month range imprisonment. See tody serve the his prison to rest of sen- 7B1.4(a). U.S.S.G. In view of Malone’s tence. record, however, unfortunate track the By August had completed Malone court imposed a 12-month prison sentence. sentence, prison the he began and the

three-year period supervised release. II. precedent, Past was however. Between On appeal, challenges the sen- early November and December he tence procedurally as substantively and violated several terms of test- release — reviewing unreasonable. When sentences (November 23), ing positive for alcohol use imposed after revocation of re- to failing report testing on three dif- lease, original as when sen- reviewing (December 12) 1, 7, ferent occasions and tences, procedural we propriety assess failing mandatory attend counseling of the (asking sentence whether the court (December 4) any sessions one which — considered “the relevant fac- statutory him exposed to a revocation and return to tors”) propriety substantive of the prison. On December the dis- (asking sentence whether it is “unreason- matter, trict court addressed the and it able”). Carr, See 421 “reluctantly” chance, gave Malone another (6th Cir.2005). opting not to revoke his re- lease. R. 51 at 12. A. Malone’s third chance ended like the When a defendant violates first two. report He failed to sub- supervised release, terms of a may occasions, stance abuse treatment on two impose prison a sentence “after consider prompting the counseling program to dis- (1) [following] factors”: the nature him charge for lack of attendance. On of the history offense and the and charac 10, 2010, January police stopped Malone defendant; (2) teristics of the the need to on suspicion of vandalism. The officer conduct; (3) deter criminal need noted that “extremely Malone was intoxi- (4) protect public; cated,” provide need to receiving Malone admitted to a treatment; the defendant appropriate hand with during fight laceration with his (5) brother. report po- guidelines policy Malone failed to relevant state- (6) ments; lice stop probation his officer within 72 the need to avoid unwarranted hours, as required by (7) terms his disparities; sentencing the need to release, and lied two later days when his provide restitution to crime victims. 18 probation officer asked if he en- had 3583(e); U.S.C. United States v. John- with police. counters Malone tested son, Cir.2005). positive for marijuana alcohol and use on Some factors more are relevant than oth- February 8. case, ers in a given accordingly do we require busy judges district court

The court issued arrest warrant for provide one-by-one At a “ritualistic” “incanta- February Malone. Ma- hearing, (1) lone tion” of each failing report admitted to factor. United States occasions, (2) Moon, (6th Cir.2008). counseling on failing two [it],” because, by reviewing report, whether the court instead is question explanation for the presumed “the court is have considered provides sufficient meaningful ap- adequate for range.” one recommended Id. pellate Polihonki, review. (6th Cir.2008). That the case was court these modest The district satisfied here, Ma- interrogation as the court’s of in this 12-month imposing

requirements with, and plenty it was familiar lone shows The court addressed the nature sentence. by, the quite disappointed report. ad- of the offense. It and circumstances re- subsequent for “this monished Malone potential gaps All of leaves two this to alcohol and peat pertaining behavior sentencing mentioned at the factors pro- attendance at treatment pertaining to never hearing. The court mentioned grams.” at 14-15. The court ad- SRVH provide to crime victims need restitution history and characteristics dressed or the need to avoid unwarranted sentenc- “you’re It not the defendant. noted that no disparities. Yet there was restitu- 25,” rhetorically, then asked you’re speak tion to of because the victim “Well, you’ve let’s find how much out (aside law) rule these violations from the ... was learned. In December Court As unwarranted was Malone himself. said, given report a which Don’t violate disparities, problem no such him, Judge, but he used alcohol and he within-guide- in the apt arise context of to attend the substance abuse failed sentences, lines States Kirch- United cf. that, we didn’t learn from classes.... So Cir.2007), a hof, did we?” Id. at 14-15. re- modest variance for two-month the need to deter future crimi- addressed may peated supervised-release violations obvious,” nal conduct. the court “[IJt’s but unwarranted disparities lead inability explained, “that the of these su- ones. pervised to turn release characteristics record, this provid- On the district court ... around have to have this situation sufficiently a basis” for its ed “reasoned Id. at 15. consequences.” States, decision. Rita 551 U.S. importance The court considered 168 L.Ed.2d 203 S.Ct. care and providing Malone with medical say Although judge always a could It ordered that Malone other treatment. dissenting agree and we with our more be with alcohol abuse treatment “provided this colleague judge would have done explaining setting,” within the institutional more, “brevity length, or say well help “perhaps it will be a better there detail,” expla- conciseness or of the court’s setting .... we have a this matter so “depends upon nation circumstances” be less and more where there will stress “judge’s judgment.” own professional structure, footing we will be on better case, In there lot to Id. Malone’s a on apparently than we are now.” Id. with say given past pris- Malone’s failures court, presume, 15. And the we can con- prologue on release and the unfortunate policy sidered relevant statements history provided hearing. that this At the time violations. judge district had dealt with The same hearing, of his revocation the record con- first, when prior on two occasions: Malone release “supervised tained Malone’s viola- to 48 months judge sentenced Malone report,” spelled which out the adviso- conviction, felony interrupted by for his ry range. some cases district “[I]n house; halfway early to a failed release statements reflect consideration court’s then, judge passed oppor- when the on [report] express without reference that, tunity to revoke Malone’s re- It is true the district court after lease, violations, despite multiple giving imposed a 12-month Malone By second chance. the time of asked the court to impose a sentence of 12 encounter, the third when Malone ap- 1 day, apparently months and because that peared hearing, for his revocation the key would allow Malone to earn good-time issue for discussion was Malone’s recidivist credits, district court never re- ways and what to do about them. And sponded to the request. But Malone cites precisely that was what the district court no authority proposition for the that dis- in justifying focused on the 12-month sen- trict respond courts must requests tence. Because “the amount of reasoning” sentences, longer requests least of all expected sentencing judges “varies ac- made the imposes after context,” cording to v. Jer- and we are aware of none. A sentencing oss, (6th Cir.2008), 521 F.3d 582-83 judge duty has no every argu- “discuss sentencing transcript we cannot read a in a by litigant”; ment made clearly meritless here, key vacuum. The context indeed the arguments can and should be “passed over context, outcome-determinative was the Gale, in silence.” United States v. judge’s familiarity inability with Malone’s (6th Cir.2006). to cope with his addictions and life outside prison walls. colleague Our raises a few additional Any doubt on by this score is confirmed concerns dissent. But respectfully we how little the say had to before defendant they do not think change the outcome. hearing the or at it. Malone did not re- 3553(c)(2) § The dissent invokes of Title spond to or object super- otherwise to the requires which explain a court to report. vised release violation And he did “specific reason for the imposition of a deny problems underlying the vio- described, sentence different from that lations, repeated nature of the viola- which reasons must also be stated with tions or the need for the court respond specificity in the judg- written order of firmly to them. In his counsel’s words: 3553(c)(2), § ment.” 18 U.S.C. amended “His problem is he needs to commit him- 2010). by Pub. L. No. 111-174 (May self to a course of treatment that’s not defendant, all, The first of made no men- by deterred outside forces such as loss of 3553(c)(2) § appeal, on and accord- transportation or friends who use and who ingly he has forfeited the argument. don’t have his best interests at heart. He realizes the need for treatment. rec-We all, point, second of makes no differ- ognize going punishment there’s to be for ence questions here. No one this case having his fallen off track here. The that, Booker, reality after a trial court December, gave Court him a break in “adequately explain must the chosen sen- he didn’t take ... good advantage of that.” tence-including the explanation de- at 11. plea SRVH His counsel made no range.” viation from the Guidelines Gall leniency before the court issued its States, 38, 51, v. United 128 S.Ct. why decision or otherwise explained 586, 169 L.Ed.2d 445 Nor does ultimately kind of sentence the court im- that, anyone question reality after posed imposed. should not have been To Booker, the trial the ex- should “consider contrary: hearing transcript sug- tent of the deviation and ensure that the gests participants appreciat- that all of the justification sufficiently compelling repeated ed that the nature of the viola- support degree of the variance.” Id. going (relatively tions was to warrant shown, speaking) a stiff sentence. 128 S.Ct. 586. As the trial a term of court to revoke in im- trict requirements satisfied these judge that section that variance. and because it is modest two-month release posing this so, doing procedures explains all, there is a to the extent Last of 3553(c)(2) fairly § incorporate failure 3553(c)(2) affect might § setting in which applies it one wonder whether makes case, likely to be of a it is less the outcome violations. for a stating reasons in the context likely to be in the con- and more variance pub have issued reasoned Two circuits must also those “reasons text of whether Booker point. on the Before holdings lished in the written specificity be stated with it, has held Eighth and after argument judgment,” order of 3553(c)(2) apply super does not that point, anyone here. As to raised violations. United States vised-release 3553(c)(2) ap- by no means clear Cotton, 915-16 Cir. violations, release as plies Face, 2005); States White United to initial sentences. opposed (8th Cir.2004); see also 738-39 sentencing guide- Congress intended Garner, Fed.Appx. enacted, lines, to be mandato- originally as Cir.2005) (7th (holding that 320-21 crimes, it never intended for most but ry 3553(c) re apply supervised § not to does by ranges provided Chap- the “by because its terms lease revocations with guidelines, the which deals ter of 3553(c) sentencing” and applies only § to Release Viola- Supervised “Probation and do § Rule 32.1 because Criminal tions,” mandatory. be See United to 3553(c)(2)). § The Ninth reference not 1099, 1101-02 & Sparks, 19 F.3d States 3553(c)(2) contrast, Circuit, § holds Cir.1994). (6th Instead, Chapter n. 3 applies setting. in this See United en- advisory role” to special “fulfilled] 1173, 1177-78 Miqbel, 444 F.3d revocation flexibility” for “greater sure Cir.2006). it, sees As the Ninth Circuit compared regular sen- proceedings as 3553(c)(2) to, among provi other § refers the Although Id. at 1101 n. 3. tencings. sions, 3553(a)(4), § which talks about “vio made the portion of Booker remedial release,” ... supervised of lation[s] suddenly made advisory and guidelines impose the same reason- that suffices to 3553(c) § to all deviations from applicable written-order-of-judgment re giving and vari- ranges, whether guidelines traditional supervised-release hear quirements on States v. departures, ances or see United may may right, That or not be ings. Id. 220, 261, Booker, 125 S.Ct. 543 U.S. prefatory that the noting it bears though (2005), it not clear that L.Ed.2d 621 is (“the 3553(a)(4) §in kinds of sen language 3553(c)(2) § suddenly applicable made sentencing range established tence and violations. 3553(c)(2) (“is for”) §in language and the oddity applying about Another kind, range”) not of the or is outside 3553(c)(2) § setting § in this is language to the naturally connect statute,” see “supervised release Unit- 3553(a)(4)(A), provide § which used to 479, 483 Gilpatrick, ed States sentences, language mandatory not to (6th Cir.2008), nothing about such a says 3553(a)(4)(B), is the subsection § which 3583(e). § requirement. See U.S.C. release and which dealing with 3583(e) sub- incorporates several Section always advisory. been has § for con- appropriate 3553 as sections or the Ninth Eighth Circuit Whether revoking a term of release sideration today, makes no difference 3553(c)(2). right is Id. conspicuously omits but accordingly we need not resolve a dis- empowers 3583 that Because it is 38, 51, point. way, Either district court must 128 S.Ct. 169 L.Ed.2d 445 give sufficient reasons for its sentence Malone’s serial violations and his review, all appellate allow for as three straight probation failure be with his dispositive today us agree. point gave officer district ample court discre- whether the district court abused its dis- add two months to the top On giving cretion in those reasons here. advisory guidelines range. appeal, Malone concedes that a within- have We affirmed similar vari- guidelines sentence would have been rea- setting, before in this ances and we see no sonable, say which is to toup sentence reason to do so here. What was said ten months. Malone’s Br. at 15. What his in one case be with equal could said truth to, then, complaint comes down is whether A here: two-month addition to the adviso- adequately explained district court ry guidelines range necessary get months, months, why 12 rather than 10 defendant’s “attention” and to “end his everything was Yet appropriate. cycle of self-destructive behavior.” Poli- in explaining said as chroni- honki, 543 at 326. The goes same earlier, justified a cled 12-month sentence another affirming up- case a two-month explain why sufficed to two months ward variance: district court had guidelines appropriate. “[T]he above the circumstances, Under these given the failure of twice ‘a defendant] break’: at [the explicit the court to add coda—to the hearing by the first revocation allowing justified all effect that of this a variance of him, violations, despite multiple to contin- two months —does amount revers- release, ue with and at ible error. by a hearing imposing prison second short term. That the precedent hearing

A recent third revocation illustrates the other side of the coin. In prompted United States v. Pee- the a impose district court bles, we reversed a 10-month sentence im- just modest two months over variance — posed a supervised-release for on violation top the of advisory guidelines range— the procedural-reasonableness grounds. See patently is United v. reasonable.” States (6th Cir.2010). There, 624 344 F.3d the Morrow, 591, (6th 207 Fed.Appx. 593 Cir. only district court not failed to address 2006); Brown, see v. also United States policy range only statement and not failed (6th Cir.2007) 722, 501 F.3d (affirming 726 variance, its explain but the time the upward ten-month variance when defen- case came to our court it also remained positive drugs dant tested and failed to unclear what proper range was. at Id. report treatment program); his John- 346-47. Peebles thus was a case in which son, eight- 403 at (affirming 817 the appellate court could not even tell month when variance defendant range, among op- which several competing terms, forged had violated his release doc- tions, the district court had invoked before officer). probation uments and to his lied defendant, sentencing making it appro- that the sentence responds is priate cursory to treat the explana- court’s “greater given than necessary” that his tions for sentence as reversible error. Super “limited” use occurred at a drug The is not same true here. party. Bowl Malone Br. at But 12-15. B. why exculpatory? anyone is that Does “mine-run,” 12, realistically a at think id. The court’s sentence also is sub Super place Bowl is the kind reasonable, party stantively say which is been if he too under where Malone should have long “totality circum States, grip stances.” Gall v. 552 to break free from the trying United U.S. ruthless 970 from the deviation explanation the call point, More to the

of alcoholism? give district error. procedural make. must is a clear guidelines” is not ours to We these making 586; Gall, courts “due deference” 128 S.Ct. see 552 U.S. at decisions, Gall, 552 at 128 S.Ct. (“A U.S. Blackie, at 400-01 sen 548 F.3d also say that a recidi- is difficult to with the imposed complying tence without violator, like Ma- vist 3553(c) er §of constitutes requirements lone, a less-than-twelve- must receive Grams, ror.”); at 685-88. 566 month sentence. district recognized We have permits of its sentence explanation court’s

III. per and the “meaningful appellate review reasons, these we affirm. For Blackie, fair ception of a sentence.” Gall, 50, 128 MOORE, (citing F.3d at 401 U.S. KAREN NELSON 586). case, however, dissenting. In review Judge, this S.Ct. explanation is not district court’s legal appeal primary issue this the district court did possible because quite simple: when a district court sen absolutely It give any explanation. said imprison tences a defendant a term why about it was above nothing ment is above the recommended Indeed, we can guidelines range, explain guidelines range. must it its reason doing Congress Supreme so? and the even that the district court con presume yes, have both said see 18 U.S.C. Court guidelines because the range sidered the States, 3553(c)(2); United Gall that. failed to mention And also 128 S.Ct. 169 L.Ed.2d although majority believes that (2007), circuit, as has this see United twelve-month sentence included “modest Grams, 566 F.3d 683 Cir. variance,” Majority Opinion at two-month 2009); Blackie, States v. nothing in record indicates that (6th Cir.2008); see also United States on mind or the variance was either (6th Cir.2010) Peebles, F.3d 344 tongue judge. Clearly the district (remanding failure and ad for to calculate comply with district court did guidelines range); United States dress 3553(e)(2), § which constitutes reversible 980 Barahona-Montenegro, v. 565 F.3d 400-01; Blackie, error. See 548 F.3d (6th Cir.2009) (remanding for to failure Grams, 566 at 685-88. the guidelines range explain calculate Furthermore, plain language sentence). the district court Because 3553(c)(2) § applies statute provides it an why imposed has failed to state hearings. supervised-release-revocation to sentence, above-guidelines application 3553(c)(2) Congress applied § to explicitly law to the facts of this case cannot supervised-release-revocation proceedings however, af be The majority, debated. an for sentences by requiring explanation I dissent. respectfully firms nonetheless. kind, that are “not of the or outside [are] it explain why court must has A district (a)(4).” in range, described subsection particular 18 U.S.C. chosen 3553(c)(2). (a)(4), § Subsection 18 U.S.C. 3553(c), and, § if that is outside sentence turn, explicitly in includes sentences guidelines range, recommended and acknowl- supervised-release violations specific must also state “the reason court “applicable have edges that such violations imposition of a sentence different policy or statements issued guidelines guidelines,]” 18 [in from that described 18 3553(c)(2). Sentencing Commission.” U.S.C. “adequate- § Failure U.S.C. 3553(a)(4)(B). statutory lan- plain § an ly explain sentence-including the chosen

971 3553(c)(2) Face, (8th 733, § thus guage applies super- v. 383 White 738-39 Cir.2004). proceedings. fact, Cotton, vised-release-revocation In the district clearly give specific court did “the reason” This circuit previously applied has exceeding guidelines at the hear 3553(c)(2) § to supervised-release-revoca ing; only failing its in regards to the proceedings. See United States v. Cotton, requirement. written-statement (6th Johnson, 785, Fed.Appx. 356 793-95 399 (noting F.3d at 915 that the district Cir.2009) (unpublished opinion); United guidelines stated “I’ve exceeded the 517, v. Manning, Fed.Appx. States 317 reasons,” for four provided those rea (6th Cir.2009) (unpublished 523-24 opin sons). regular And the context of a ion). At least six other circuits have done sentencing hearing, this circuit recog has so, as well. See United States v. Miqbel, nized that a comply failure to with the (9th 1173, Cir.2006) 444 F.3d 1177-78 written-statement requirement will not re 3553(c)(2) § (holding applies super sult in reversible long error so as the proceedings); vised-release-revocation provides district court explanation oral Lewis, 239, United States 424 F.3d 244- for an above-guidelines sentence. (2d United Cir.2005) (same); 45 Williams, 212, Fed.Appx. 396 220 Whitelaw, (5th 580 F.3d 261-62 Cir. (6th Cir.2010) 2009) (unpublished opinion). This (holding that failure comply with is because the oral 3553(c)(2) sufficiently statement § in a supervised-release pro provides perception for the of a fair sen error); ceeding constitutes In re Sealed review, Case, meaningful appellate tence and for (D.C.Cir.2008) 527 F.3d 193 id., neither can (same); of which be said of the Tedford, United States v. 92 Fed. (10th Cir.2004) Lastly, sentence here. it is true that the Appx. (unpub order) Circuit, (same); unpublished, Seventh in an lished two- see also United Silva, page order on a motion to States v. withdraw as Cir.2006) 3553(c)(2) counsel California, § under Anders v. (applying proba 87 S.Ct. tion-revocation L.Ed.2d proceedings). The 1994 (1967), 3553(c)(2) 3553(a)(4) § held that ap § amendments does not support this ply supervised-release-revocation approach, pro because Congress explicitly add Garner, ceedings. States v. ed proceedings (7th Cir.2005) (un Fed.Appx. their 320-21 corresponding guidelines policy order). 3553(c)(2)’s (a)(4) published given But statements to subsection while leav 3553(c)(2) text, clear I do not find that court’s brief its connection to —and explanation persuasive. I also “subsection find note (a)(4)” unchanged. See Vio — worthy relied, that court in lent Gamer Crime Control and Law Enforcement 103-322, part, on the fact that no other circuit at XXVIII, Act of Pub.L. Title -just four months after § Booker Stat. 2095-96 time— opposite was decided—had reached the Eighth The two cases from the conclusion. Id. The cases mentioned distinguishable, are because in those cases above, however, this show reliance to have that court considering a different misplaced. been question from presented the one here: 3553(c)(2)’s Any suggestion regarding what § has been requirement whether of a 3583(e) § unpersuasive. omitted from written statement of reasons for sen- 3583(e) permits Section guidelines range applies tence outside the revocation su- pervised only in supervised-release-revocation proceed- release after the court has Cotton, most, all, ings. See United States v. considered but not of the factors Cir.2005); 3553(a). 3583(e) § listed in Section pro- supervised term of of a defendant’s cation “may, after consider- that the court vides from the conceptually forth in section different factors set release is ing the (a)(2)(D), (a)(2)(B), (a)(2)(C), conduct; 3553(a)(1), provided for criminal punishment terminate, (a)(6), (a)(7),” (a)(4), (a)(5), and as a properly understood the former extend, or revoke a term of while the latter can re- of trust” “breach release, to be or order defendant only following a convic- in a sanction sult confinement. 18 U.S.C. placed on home Id. separate proceeding. a criminal tion in 3583(e). Clearly contains § this list Sentencing (citing at Guidelines 3553(a) factors, only to § and it relates (2004)). result, Pt. A As a Ch. Manual, what must consider and what the court conduct constitutes where a defendant’s may impose; the court types of sanctions supervised-release a violation of a both with what provision nothing has to do this offense, separate a criminal condition and But this is not explain. the court must proceed- supervised-release in a 3553(c) already § surprising given that ad- imposing a should remain focused on a court must ex- dresses what trust,” for the “breach of sanction pro- plain supervised-release-revocation to do what should not consider need Frankly, meaning ceedings. to derive (a)(2)(A) providing calls subsection for— 3553(c)(2) § fact that was not from the for the offense.” Id. “punishment 3583(e) § implies belief mentioned provision, omitted subsection The second 3553(c)(2) § enact Congress needed to (a)(3), provides for consideration of “the apply once. twice before the section can available.” It would kinds of sentences Nonetheless, in- Congress the fact that superfluous required have been to have 3553(a) many § of the dividually listed so supervised-release proceed- in a the court 3583(e) ques- §in does raise the factors factor, however, be- ing to consider this this list? tion: what has been omitted from available” in cause “the kinds of sentences 3553(a)(1), Subtracting “section[s] proceeding are listed (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), 3583(e), considering §in After itself. 3553(a) (a)(7)” (a)(6), § from reveals 3553(a) factors, may, § the court listed (a)(2)(A) the answer: subsections “(1) context, terminate a depending on (a)(3). And the content of these subsec- (2) ...; supervised release extend term of why they demonstrates were omitted tions ... ... a term of release 3583(e). § from reduce, modify, enlarge or the conditions first, (a)(2)(A), provides subsection (3) ...; supervised release revoke for consideration of the need for the sen- (4) ...; supervised release or term of “to reflect the seriousness imposed tence place to remain at his order the defendant offense, respect for the promote of the and, during nonworking hours of residence law, just punishment for provide and to directs, compliance if the court so to have 3553(a)(2)(A). the offense.” 18 U.S.C. by telephone sig- or electronic monitored explained But as the Ninth Circuit 3583(e)(1)- naling U.S.C. devices[.]” (a)(2)(A)’s on the Miqbel, subsection focus (4). quite It therefore understandable is providing “seriousness of offense” would have omitted subsec- Congress “just for the makes punishment offense” (a)(2)(A), (a)(3), along with subsection inappropriate the subsection for consider- of factors a court must con- from the list in a supervised-release-revocation ation supervised-release proceeding. in a sider proceeding. Miqbel, 444 at 1181-82. F.3d argues that the district court Primarily, Sentencing because the this is why ... adequately explain made clear that the revo- “failed to Commission has

973 guideline range sentence sentence, above was meritorious claim for a lesser but 10; necessary.” Malone Br. at see also id. suggest there is little to that the district at 11-12. Because the district court did actually it, considered then remand give indication that knew the may be appropriate.”). range recommended sentencing or intend- I would vacate and remand resen- variance, impose ed to an much and, therefore, tencing, respectfully dis- explanation why less an it imposed a sent. sentence above the recommended sentenc- ing range, meaningful we cannot conduct

appellate review and we must remand for

resentencing. respect

With to the district treat- court’s request year-and-a-

ment Malone’s for a

day district court not to provide explanation

failed in re-

sponse request, to that but also important-

ly permit the district court did Ma- attorney request,

lone’s even to finish his

thereby demonstrating an unwillingness argument.

consider the The entire ex-

change as follows: Honor, attorney]:

[Malone’s Your would

the Court consider 12 months and one

day eligible make him for— America, UNITED STATES of just The Court: I think 12 months Plaintiff-Appellee, fine. Thank you. R. though 15-16. Even “arguments can, clearly without merit and for the sake WILLIAMS, Odell Defendant- should, judicial economy be passed over Appellant. silence,” Smith, No. 09-5014. Cir.2007) (internal quo omitted), tation marks this was not such an Appeals, Court argument. requested of one sentence Sixth Circuit.

year day and one have would been to Malone’s day benefit because the extra Dec. 2010. eligible good- would have made Malone 3624(b)(1). time credit under 18 U.S.C.

It provided would also have an incentive good prison. behavior in See Barber v. —

Thomas, -, S.Ct.

2505, 177 L.Ed.2d 1 It therefore

clearly argument, non-fiivolous deserv consideration and discussion Gale,

district court. United States v. (6th Cir.2006) (“When, on

appeal, a argument sup defendant’s

porting presents arguably evidence

Case Details

Case Name: United States v. Wallace Malone

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 16, 2010

Citation: 404 F. App'x 964

Docket Number: 10-1261

Court Abbreviation: 6th Cir.