                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0749n.06
                                                                                          FILED
                                           No. 10-6449
                                                                                     Nov 03, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES,                                             )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )         ON APPEAL FROM THE
               v.                                          )       UNITED STATES DISTRICT
                                                           )       COURT FOR THE EASTERN
VANCE BOWERS,                                              )        DISTRICT OF TENNESSEE
                                                           )
       Defendant-Appellant.                                )
                                                           )
                                                           )

BEFORE: ROGERS, COOK, and WHITE, Circuit Judges.

       ROGERS, Circuit Judge.         Defendant Vance Bowers appeals his sentence of 18 months’

imprisonment, imposed when the court revoked his second term of supervised release for testing

positive for a controlled substance and violating the rules of his halfway house. Bowers argues that

his sentence, which includes an upward variance of five months, was substantively unreasonable and

greater than necessary given the nature of his violations. However, because the district court

properly considered and discussed the necessary § 3553(a) factors in support of an upward variance,

and reasonably found that Bowers was unwilling to be supervised, had a poor attitude, and was at

a heightened risk of recidivism, a sentence of 18 months without a period of supervised release was

not an abuse of discretion and was substantively reasonable.

       On December 19, 2002, following a jury trial, Bowers was convicted of conspiracy to



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distribute and possess with intent to distribute methamphetamine, kidnaping, and possession of a

firearm in relation to a crime of violence. Bowers was initially sentenced to 211 months’

incarceration and supervised release, but after a Booker remand and successful § 2255 petition,

Bowers’s firearm conviction was vacated and his sentence was amended to 96 months in prison

followed by three years of supervised release. Bowers’s first term of supervised release began July

24, 2009, but was revoked after Bowers twice tested positive for marijuana and missed three drug

treatment sessions. After these violations, he was sentenced to three months of incarceration

followed by 33 months of supervised release. Bowers’s second term of supervised release began on

April 9, 2010.

       During his second term of supervised release, Bowers was required to spend six months at

the Midway Sanction Center, a halfway house in Knoxville, Tennessee. In light of Bowers’s history

of drug abuse, he was also required to notify his probation officer if a controlled substance was ever

prescribed to him. After only three months at Midway, Bowers tested positive for hydrocodone, a

controlled substance, and was discharged pursuant to Midway’s zero-tolerance drug policy. On

September 20, 2010, Bowers’s probation officer requested that his second supervised release be

revoked because Bowers had tested positive for a controlled substance and in addition had violated

the rules at Midway Sanction Center, including his refusal to pay the subsistence fee.

       A second revocation hearing was held on November 8, 2010. Bowers initially indicated that

he would stipulate to the two violations. However, after the district court read the first violation,

Bowers disputed the proposed stipulation and explained that he had an earlier prescription for the

hydrocodone. In light of Bowers’s objections, the district court heard testimony presented by the

Government from Paul Harris, Bowers’s supervising probation officer, and Steve McNish, the


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director of Midway Sanction Center.

       Harris’s testimony established that Bowers was well aware that he was not permitted to take

narcotic medications without advanced permission, that Harris did not give Bowers permission to

take hydrocodone, that Bowers did not acknowledge a drug problem, and that Bowers was

“completely uncooperative” and resistant to supervision. Harris concluded that Bowers was unlikely

to succeed under any supervisory program or conditions.

       McNish testified that Bowers was uncooperative and that Bowers clearly felt that his

assignment to Midway was a wrong perpetrated against him. Bowers refused to pay his subsistence

fee to Midway. Bowers would check himself out of Midway for up to 80 hours a week, ostensibly

to work at his construction job, yet his paychecks did not report such lengthy hours. Additionally,

McNish confirmed that Bowers had never turned in any medication as required to Midway, yet had

tested positive for hydrocodone.

       At the revocation hearing, the district court found by a preponderance of the evidence that

Bowers had violated his terms of supervised release by testing positive for hydrocodone and failing

to comply with the requirements of Midway. These were grade C violations which, in light of

Bowers’s criminal history categorization, carried an advisory guidelines range of 7 to 13 months’

incarceration. The United States requested the statutory maximum sentence of 21 months’

imprisonment.

       The district court sentenced Bowers to 18 months of incarceration without any further

supervised release period. In arriving at this sentence, the district court considered and discussed

the guidelines range and the § 3553(a) factors. The district court acknowledged the importance of

the guidelines, but determined that the § 3553(a) factors called for an upward variance. The district


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court specifically discussed Bowers’s angry attitude and demeanor, his unwillingness to follow rules,

his resistance to treatment, and the fact that this was Bowers’s second revocation of supervised

release. After this discussion, the district court concluded:

          Your resistance to any kind of supervision and treatment is something that’s not
          taken into account by the guideline range. Your argumentative, uncooperative, anti-
          authority attitude is something that’s not taken into consideration; and the reason
          that’s important, in addition to the reasons I’ve already stated . . . is that that
          increases the risk of recidivism . . . . Because I find . . . that there are certain factors
          that are not taken into account in the guideline range, because of . . . the lengthy
          record of noncompliance, because of the nature of the noncompliance, because you
          have effectively managed to avoid your Midway obligation, and because there is no
          further supervision that will serve any purpose, I am going to impose an above the
          guideline sentence here. I’m not, however, going to impose the statutory maximum.
          I’m going to impose an 18 month sentence here . . . a sentence that I believe is
          sufficient but not greater than necessary to comply with the purposes of sentencing
          established by the Congress.

          On November 9, 2010, one day after the revocation hearing, Bowers filed a timely notice of

appeal.

          Bowers’s sentence was not procedurally or substantively unreasonable, and thus the district

court did not abuse its discretion by sentencing Bowers to a five-month upward variance from the

guidelines. As Bowers does not claim on appeal that the district court committed procedural error,

this court must only review his sentence for substantive reasonableness. United States v. Walls, 546

F.3d 728, 736 (6th Cir. 2008). However, even if Bowers had raised procedural error, this argument

would not have merit because the district court properly calculated and considered the guidelines

range, evaluated the § 3553(a) factors, and thoroughly explained its decision in open court. Gall v.

United States, 552 U.S. 38, 51 (2007).

          Bowers does challenge the substantive reasonableness of his sentence, claiming that 18

months is greater than necessary given the nature of his violations. Though on appeal he


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acknowledges that he took hydrocodone without authorization and did not make subsistence

payments to Midway, he argues that these violations were minor and do not merit a five-month

upward variance. To support these contentions, Bowers notes that the circumstances of his

violations are not as egregious as the examples given in the comments to U.S.S.G. § 7B1.4 to justify

an upward variance.

        Despite Bowers’s claim, the district court did not abuse its discretion because the five-month

upward variance was substantively reasonable. Though a sentence may be outside the guidelines

range, as in this case, that does not necessarily make the sentence unreasonable. United States v.

Petrus, 588 F.3d 347, 353 (6th Cir. 2009). Bowers’s sentence was substantively reasonable because

it was not selected arbitrarily, the § 3553(a) factors were properly considered, and no factor received

impermissible weight. United States v. Denny, 653 F.3d 415, 424 (6th Cir. 2011). When

considering the § 3553(a) factors, the district court examined the present violations alongside

Bowers’s overall behavior, his prior revocation, his attitude, and the testimony from his supervisors

regarding his unwillingness to cooperate with supervision. In doing so, the district court reasonably

concluded that an upward variance was necessary given that Bowers’s resistance to supervision and

increased risk of recidivism were not reflected in the guidelines range. In light of the district court’s

findings and discussion, there is no basis to conclude that the district court abused its discretion in

sentencing Bowers to 18 months’ incarceration without a period of supervised release.

        Bowers’s argument that his violations are not as egregious as the examples given in the

comments to U.S.S.G. § 7B1.4 is unavailing. As the guidelines are discretionary, the comments to

the guidelines are also discretionary; even if Bowers’s argument had merit, it was within the district

court’s discretion to either rely on the comments or not. More importantly, the sentence is


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substantively reasonable because the “totality of the circumstances,” Gall, 552 U.S. at 51, including

Bowers’s demeanor, prior revocation, and risk of recidivism, “justify the extent of the variance.”

Id. It is upon this basis, and not whether or not the sentence aligns with the guidelines’s comments,

that the sentence should be upheld.

       For the foregoing reasons, we affirm Bowers’s sentence.




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