                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0005n.06

                                           No. 13-6076
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                           Jan 07, 2014
                               FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE WESTERN
                                       )                 DISTRICT OF TENNESSEE
MITCHELL CLARK,                        )
                                       )
      Defendant-Appellant.             )                         OPINION
_______________________________________)


Before: MOORE and COOK, Circuit Judges, and GWIN, District Judge.*

       KAREN NELSON MOORE, Circuit Judge. Mitchell Clark appeals his sentence of twelve

months in prison following violation of the terms of his supervised release. He argues that his

sentence is both procedurally and substantively unreasonable because the district court

impermissibly focused on rehabilitative and specific deterrence goals and failed to consider that an

alternative to incarceration would be most beneficial to Clark as he struggled to break his pattern

of substance abuse. For the following reasons, we AFFIRM the judgment of the district court.

                                       I. BACKGROUND

       In 2009, Clark was convicted under 18 U.S.C. § 922(g) for being a felon in possession of a

firearm. R. 30 (Pet. for Warrant or Summons) (Page ID # 53–54). He was sentenced to a 57-month

term of imprisonment and a two-year term of supervised release. Id. On August 29, 2012, his term


       *
        The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 13-6076
United States v. Mitchell Clark


of supervised release began. While on supervised release, Clark completed a one-month inpatient

treatment program to address his history of addiction. R. 57 (Supervised Release Violation Hr’g Tr.

at 18) (Page ID #109) [hereinafter “Hr’g Tr.”]. He also began regularly to attend Alcoholics

Anonymous meetings. Id.

       On May 20, 2013, the government filed a Petition for Warrant or Summons for Offender

Under Supervision (the “Petition”) after Clark pleaded guilty to possession of a controlled substance

in state court. R. 30 (Pet. for Warrant or Summons) (Page ID # 53–54). The Petition listed several

violations of the conditions of Clark’s supervised release: commission of a new crime, failure to

notify the probation officer of his arrest, failure to report to scheduled probation appointments, and

failure to participate in substance-abuse treatment and mental-health counseling. Id. On August 12,

2013, the district court held a hearing regarding the supervised-release violations. Clark admitted

his guilt as to each of the violations charged in the Petition. R. 57 (Hr’g Tr. at 10–14) (Page ID

#101–05).

       The probation office calculated the appropriate sentencing range for Clark’s violation of

supervised release at twelve to eighteen months. Id. at 15 (Page ID #106). Based on Clark’s history

of violating the terms of supervised release and probation, the government recommended a twelve-

month sentence. Id. at 16 (Page ID # 107). Clark’s counsel requested that the district court hold the

case in abeyance and monitor Clark’s compliance with the conditions of his release for a period of

time before making a sentencing decision. Id. at 32 (Page ID #123).




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       The district court imposed a sentence of twelve months of confinement. Id. at 40 (Page ID

#131). The district court first discussed the need to impose a sentence to reflect the seriousness of

the offense: “Basically Mr. Clark took himself off probation. I think he violated just about every

condition of probation. . . . In this court’s mind that’s always serious. Any violation of supervised

release probation is a serious offense.” Id. at 35–36 (Page ID #126–27). The district court also

considered Clark’s history and personal characteristics, weighing the effect of Clark’s support in the

community against his history of consistent parole violations. Id. at 36–38 (Page ID #127–29).

Referring to several examples of probation or parole violations identified in Clark’s Presentence

Report, the district court concluded that “that is an indication to me of how Mr. Clark has . . . fared

being released into the community on various types of release.” Id. at 38 (Page ID #129).

Ultimately, the district court explained its decision as follows:

                As I indicated before, [Clark] has violated just about every term of probation.
       In this court’s experience a 28-day residential program is a good start when you are
       dealing with true addicts. But it isn’t enough to actually turn the corner. And
       residential drug treatment for at least six months, usually up to a year, in this court’s
       experience, is what is necessary.
                I say all of that to say that given the nature of all of these violations, I still
       have to impose a sentence that reflects the seriousness of the offense and promote
       respect for the law. As I said, this is a very serious offense in this court’s eyes.
                And Mr. Clark really has demonstrated over the years, as well as this case,
       has a total disrespect for the law and the controls that have been put in place.
                I have to really take into account deterrence because of so many violations
       in the past and the violations in this case, there is a need for deterrence. And really
       have to protect the public from further crimes of the defendant, that’s a lesser
       consideration, I mean, there was an additional crime but it was a drug case that
       ultimately resulted in a misdemeanor conviction.
       ....
                I’m going to impose a sentence of 12 months [of] confinement. . . . I think
       that takes into account, it’s an adequate sentence given all of the circumstances

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United States v. Mitchell Clark


       presented to me today, the positives and the negatives, I think it accomplishes all the
       goals of guidelines as well as sentencing statutes and the factors that I have to take
       into account when considering supervised release violations.

Id. at 38–40 (Page ID #129–31). Clark’s counsel objected, arguing that a period of incarceration

would be detrimental in Clark’s struggle to break his addictions because it would remove him from

his support group. She noted that Clark had successfully completed an intensive inpatient program

while on supervised release and that he was regularly attending support group meetings. Id. at

41–42 (Page ID #132–33). The court responded to the objection as follows:

       . . . I’ve considered all of those things.
                 There is other information contained in the Presentence Report, but sooner
       or later it has to come to an end. You’re right, some people it just takes a few
       meetings with alcohol or narcotics anonymous. Some people it takes 28-day
       treatment program, outpatient, some it’s inpatient, some never come to grips with the
       problem and are addicts and users and binge users to the day they die, and I . . .
       realize that.
                 And so what you say in that way is correct. But when I look at the full
       circumstances, the information in the Presentence Report, the information in the
       violation, his history, the things that I’ve heard today, I’ve come to the inescapable
       conclusion of what’s best in this circumstance, Mr. Clark’s circumstance is a period
       of incarceration.
                 If he is truly going down that road, there are resources in the Bureau of
       Prisons that he can take advantage of. But his actions that he has demonstrated over
       the years now indicates that his around and around thing of getting into trouble,
       convincing whatever—at whatever level, judges, to place him on probation or
       supervised release, however he gets it. Constantly violating the terms of probation,
       you know, those things have to come to an end.

Id. at 43–44 (Page ID #134–35). Clark filed this timely appeal.

                                         II. ANALYSIS

       We review the reasonableness of sentences, including supervised-release revocation

sentences, under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007);

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United States v. Mitchell Clark


United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007). Our review of a sentence proceeds in two

stages: First, we “ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51. Second, if we

determine that the sentence is procedurally reasonable, we “consider the substantive reasonableness

of the sentence imposed under an abuse-of-discretion standard.” Id. “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).

A. Procedural Reasonableness

         Clark asserts that the district court committed two procedural errors: (1) it based Clark’s

sentence on the erroneous fact that Clark would have access to substance-abuse treatment in prison

and (2) it failed to account for disparities between Clark’s sentence and the sentences of similarly

situated defendants. Both arguments are without merit.

         First, Clark argues that the district court erred because it based his sentence on the mistaken

factual belief that “there are resources in the Bureau of Prisons that [Clark] can take advantage of”

to treat substance abuse. R. 57 (Hr’g Tr. at 43) (Page ID #134). Citing a report released by the

Federal Bureau of Prisons, Clark argues that he will not be able to access substance-abuse treatment



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United States v. Mitchell Clark


in prison because the twelve-month sentence he received is not long enough to make him eligible

for intensive residential drug-abuse treatment. See Federal Bureau of Prisons, Annual Report on

Substance Abuse Treatment Programs Fiscal Year 2011 6–7 (2011) [hereinafter, “Annual Report”].

To the contrary, although Clark will not be eligible for his preferred intensive residential program,

the Bureau of Prisons also offers a non-residential program targeted at several discrete prison

populations, including “[i]nmates with a drug use disorder who do not have sufficient time

remaining on their sentence to complete the intensive Residential Drug Abuse Treatment Program.”

Annual Report at 5. Therefore, the district court’s factual belief that drug abuse treatment would

be available to Clark in prison was accurate, and the district court did not err by referring to the

availability of such treatment.

       Second, Clark’s argument that the district court erred by failing to consider the disparities

between his sentence and the sentences of two other defendants represented by his attorney in

unrelated cases also lacks merit. In arguing for an alternative to incarceration, Clark’s counsel

advised the district court that she represented two other defendants in similar circumstances whose

cases had been held in abeyance so that the district court could monitor the defendants’ compliance

with release conditions. R. 57 (Hr’g Tr. at 32) (Page ID #123). Clark asserts that the district court

erred by failing to address his argument that his sentence was disparate from these similar

defendants.1 One of the sentencing factors a district court must consider is “the need to avoid


       1
        Clark also directs our attention to data demonstrating that other jurisdictions have
successfully implemented programs promoting alternatives to incarceration for low-level drug
offenders. But this data is not relevant to the issue before us: That Clark might be successful in

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United States v. Mitchell Clark


unwarranted sentence disparities among defendants with similar records who have been found guilty

of similar conduct.” 18 U.S.C. § 3553(a)(6). However, this factor is not a directive to consider

similarities between codefendants or other specifically identified defendants; rather, “this factor

concerns national disparities between defendants with similar criminal histories convicted of similar

conduct.” Conatser, 514 F.3d at 521.

        We have noted that § 3553(a)(6) “is an unconventional ground for challenging a within-

guidelines sentence.” United States v. Swafford, 639 F.3d 265, 270 (6th Cir. 2011). In Swafford,

we explained that:

        The point of the guidelines is to decrease sentencing disparities, an objective
        furthered by a within-guidelines sentence, as opposed to a sentence that varies above
        or below the advisory guidelines range. The very thing Swafford presumably
        wants—a below guidelines sentence—is more likely to create disparities than
        eliminate them.

Id. Accordingly, we find no merit to Clark’s argument that the district court failed properly to

consider disparities between defendants by imposing a within-guidelines sentence. Nor was the

district court’s failure to discuss explicitly his reason for selecting a sentence that differed from other

defendants error: “‘A sentencing judge has no more duty than we appellate judges do to discuss

every argument made by a litigant; arguments clearly without merit can, and for the sake of judicial

economy should, be passed over in silence.’” United States v. Gale, 468 F.3d 929, 940 (6th Cir.

2006) (quoting United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005)).




complying with the conditions of an alternative sentence does not prove that the district court abused
its discretion in ordering a term of imprisonment.

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United States v. Mitchell Clark


       The record demonstrates that the district court considered both the § 3553(a) factors and

Clark’s argument to hold his case in abeyance. The district court merely weighed the factors in a

manner different than that preferred by Clark. We find no procedural error in the district court’s

decision to accord substantial weight to the seriousness of Clark’s pattern of supervised-release and

parole violations and to impose a term of confinement. See Bolds, 511 F.3d at 582.

B. Substantive Reasonableness

       Because we find no procedural error, we next assess whether the sentence imposed is

substantively reasonable. As an initial matter, we note that Clark’s sentence is within the

appropriate Guidelines range, and is thus entitled to a presumption of reasonableness. Conatser, 514

F.3d at 520. Nonetheless, Clark claims that the district court erred in two ways that render his

sentence substantively unreasonable: (1) it based its decision on the impermissible consideration

of Clark’s need for rehabilitative programming and (2) it weighed the need for specific deterrence

too heavily at the expense of other relevant sentencing factors.

       First, Clark argues that the district court decided on a twelve-month sentence of

imprisonment because it believed that an extended treatment program of the kind available in prison

was necessary to treat Clark’s substance-abuse problems. Clark selects unrelated statements from

different sections of the sentencing hearing to construct the false conclusion that the court based its

decision to imprison Clark on the availability of substance-abuse treatment in prison. The mere

discussion of rehabilitative programming in prison does not support an inference that the district

court impermissibly considered a defendant’s rehabilitative needs when imposing a sentence. “A



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United States v. Mitchell Clark


court commits no error by discussing the opportunities for rehabilitation within prison or the benefits

of specific treatment or training programs.” Tapia v. United States, 131 S. Ct. 2382, 2392 (2011).

What a sentencing court may not do is impose a term of imprisonment longer than necessary to

ensure that an offender has adequate time to complete a rehabilitative program in prison. Id. at

2393. We cannot find any indication in the record that the district court performed such

impermissible calculations in this case.

        When considered in context, none of the district court’s statements made at the sentencing

hearing suggest that he imposed a period of incarceration because Clark could benefit from

treatment resources available in prison. The district court opined that Clark would be best served

by an extended treatment program of six months to one year to explain why Clark was not an

appropriate candidate for probation: the district court was unconvinced that Clark’s completion of

a 28-day program indicated that he had broken his history of addiction and was ready to succeed on

probation. Likewise, the district court’s reference to treatment options available in prison merely

responded to defense counsel’s concern about interrupting Clark’s recovery by removing him from

the network of support he had created outside of prison. A complete review of the hearing transcript

reveals that the district court’s decision was based primarily on Clark’s extended history of violating

the terms of supervised release and parole: “[G]iven the nature of all of these violations, I still have

to impose a sentence that reflects the seriousness of the offense and promote[s] respect for the law.

As I said, this is a very serious offense in this court’s eyes. And Mr. Clark really has demonstrated

over the years, as well as this case, [that he] has a total disrespect for the law and the controls that



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United States v. Mitchell Clark


have been put in place.” R. 57 (Hr’g Tr. at 39) (Page ID #130). Therefore, we conclude that the

district court did not impermissibly consider Clark’s rehabilitative needs when determining an

appropriate sentence.

        Finally, Clark argues that the district court erred by giving unreasonable weight to a single

sentencing factor: specific deterrence. Clark argues that the court should have also considered that

an unduly harsh punishment would undermine general deterrence sentencing goals by dissuading

other defendants from voluntarily seeking inpatient treatment. Appellant Br. at 19. To the contrary,

considering Clark’s long-standing pattern of violating the conditions of supervised release and

parole, the district court reasonably gave significant weight to the need for specific deterrence. Cf.

United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (finding no error when the district court

heavily considered the need for general deterrence and retribution because the defendant had an

extensive history of drug trafficking). And we find that the district court’s explanation references

several § 3553(a) sentencing factors, including the seriousness of the offense, Clark’s characteristics,

and the protection of the public, in addition to deterrence. R. 57 (Hr’g Tr. at 39) (Page ID #130).

Clark’s assertion that the district court gave too much weight to specific deterrence “ultimately boils

down to an assertion that the district court should have balanced the § 3553(a) factors differently,

[and thus] it is simply beyond the scope of our appellate review.” Sexton, 412 F.3d at 332 (internal

quotation marks omitted).




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       There is no indication that the district court either considered inappropriate factors or

weighed any permissible factor too heavily. Therefore, Clark has not overcome the presumption that

his within-guidelines sentence is substantively reasonable.

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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