               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0302n.06

                                         No. 14-3792                                 FILED
                                                                                 Apr 27, 2015
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE SOUTHERN DISTRICT OF
ROBERT BRAGGS,                                        )   OHIO
                                                      )
       Defendant-Appellant.                           )
                                                      )
                                                      )


       BEFORE: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

       PER CURIAM. Robert Braggs, now known as Elijah Ysrael, challenges the thirty-seven-

month sentence imposed upon the revocation of his supervised release as substantively

unreasonable. We affirm.

       In 1992, a federal jury convicted Braggs of conspiracy to distribute cocaine and cocaine

base; and possession with intent to distribute cocaine; and possession with intent to distribute

cocaine base. The district court sentenced Braggs to the twenty-year mandatory minimum term

of imprisonment, followed by ten years of supervised release. Braggs’s supervised release began

on April 30, 2009. Less than three months later, on July 24, 2009, Braggs was arrested on drug

charges. A jury in the Hamilton County Court of Common Pleas subsequently convicted him of

trafficking in and possessing cocaine, resulting in a four-year sentence. Upon the completion of

his state sentence, Braggs appeared before the district court and admitted his state conviction,

which constituted a violation of a condition of his supervised release. Based on Braggs’s Grade
No. 14-3792
United States v. Braggs

A violation and criminal history category of III, the district court calculated a guidelines range of

thirty to thirty-seven months of imprisonment. After considering the relevant sentencing factors

under 18 U.S.C. § 3553(a), the district court revoked Braggs’s supervised release and sentenced

him to thirty-seven months of imprisonment.

       On appeal, Braggs contends that his sentence is substantively unreasonable. We review

the substantive reasonableness of Braggs’s sentence under a deferential abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Bolds, 511 F.3d 568,

578 (6th Cir. 2007) (“Sentences imposed following revocation of supervised release are to be

reviewed under the same abuse of discretion standard that we apply to sentences imposed

following conviction.”). “The essence of a substantive-reasonableness claim is whether the

length of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in

18 U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010).

“A sentence may be considered substantively unreasonable when the district court selects a

sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant

sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United

States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). We apply a rebuttable presumption of

substantive reasonableness to a sentence within the guidelines range. Bolds, 511 F.3d at 581.

       Braggs argues that the district court imposed a sentence at the top of the guidelines range

based on conduct for which he had already received and served a four-year state sentence.

“[T]he United States Supreme Court has specifically explained that ‘postrevocation penalties

relate to the original offense,’ rather than the violation conduct.” United States v. Johnson, 640

F.3d 195, 203 (6th Cir. 2011) (quoting Johnson v. United States, 529 U.S. 694, 701 (2000)). As

we stated in Johnson:


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United States v. Braggs

        The violations of a defendant’s term of supervised release are properly
        characterized as “breach[es] of trust” which may be “sanctioned” upon
        revocation. But the sanction for failing to abide by conditions of supervised
        release is to be distinguished from “the imposition of an appropriate punishment
        for any new criminal conduct” which may occur only following a conviction in a
        separate criminal proceeding.

Id. (quoting USSG Ch. 7, Pt. A) (internal citation omitted). Pointing out that Braggs was

arrested “[b]arely three months after he was released from federal prison,” the district court

stated that “[t]here can be no argument under the present circumstances that the original sentence

was not only not sufficient to achieve the statutory goals of sentencing, but some punishment for

violation of the terms of Mr. [Braggs’s] supervised release is appropriate.” (RE 326, Supervised

Release Violation Hearing Tr. 23, 25, Page ID # 838, 840). The record shows that the district

court imposed the thirty-seven-month sentence as a sanction for Braggs’s breach of trust in

violating his supervised release after less than three months and not as additional punishment for

his state conviction.

        Braggs contends that, if he had been sentenced under the Fair Sentencing Act of 2010

(FSA), he would have received a sentence half of what he received and would have finished any

supervised release long before the conduct leading to this violation. The district court considered

Braggs’s FSA argument—“I understand the argument that the disparity between crack cocaine

and powder cocaine under the pre-FSA structure was considered objectively unfair”—and

rejected it:

        He didn’t make it three months on supervised release. That tells me that his
        sentence, long as it may have been and longer perhaps than it would have been
        under the Fair Sentencing Act, still wasn’t adequate, did not achieve the goal of
        protecting the public, recognizing the seriousness of his offense, deterring further
        crime by this defendant.




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United States v. Braggs

(Id. at 23, Page ID # 838). The district court did not abuse its discretion in rejecting Braggs’s

FSA argument. See United States v. Williams, 520 F. App’x 420, 424-25 (6th Cir.), cert. denied,

134 S. Ct. 261 (2013); United States v. Mills, 506 F. App’x 490, 492-93 (6th Cir. 2012).

       According to Braggs, the district court failed to consider a partially concurrent sentence.

Given that Braggs had completed his state sentence, the district court stated that it “need not

address whether or not the sentence I anticipate imposing needs to be imposed consecutively.”

(RE 326, Supervised Release Violation Hearing Tr. 26, Page ID # 841). The district court went

on to address Braggs’s request for a partially concurrent sentence:

       If I were to credit Mr. [Braggs] with all or part of his state sentence or take into
       account that his behavior, being on federal supervised release and violating it,
       causing a detainer to be placed upon him, costing any potential good time credit
       in the state sentence, again I think would only reward bad behavior. So I’m going
       to decline your request . . . .

(Id. at 30-31, Page ID # 845-46).

       Finally, Braggs asserts that the district court did not give any weight to the infirmities

underlying his state convictions. The district court determined that the sentencing issues raised

in Braggs’s state appeals were “irrelevant to our proceeding today.” (Id. at 3, Page ID # 818).

Braggs has not shown otherwise.

       Braggs has not overcome the presumption that his within-guidelines sentence is

substantively reasonable. Accordingly, we affirm Braggs’s sentence. We deny Braggs’s motion

for reconsideration of the court’s order filed on December 30, 2014, denying his motion to file a

supplemental pro se brief.




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