                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0552n.06

                                           No. 13-5895
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                          Jul 24, 2014
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )    ON APPEAL FROM THE UNITED
v.                                                     )    STATES DISTRICT COURT FOR
                                                       )    THE WESTERN DISTRICT OF
ANDRE DESHAWN TERRY,                                   )    TENNESSEE
                                                       )
       Defendant-Appellant.                            )
                                                       )
                                                       )


       BEFORE: BOGGS, CLAY, and GILMAN, Circuit Judges.


       PER CURIAM. Andre Deshawn Terry challenges his 24-month sentence imposed by the

district court when it revoked his supervised release. As set forth below, we affirm.

       In 2004, Terry pleaded guilty to possession of a firearm by a felon in violation of

18 U.S.C. § 922(g). The district court sentenced Terry to 108 months of imprisonment followed

by two years of supervised release. Upon remand for resentencing under United States v.

Booker, 543 U.S. 220 (2005), the district court imposed the same sentence.

       Terry’s supervised release began on January 26, 2012. The probation office subsequently

petitioned the district court to issue an arrest warrant, asserting that Terry had been arrested on

September 18, 2012 and charged with delivery of .5 grams or more of cocaine, in violation of the

mandatory supervised-release condition that he not commit another crime. At the supervised

release violation hearing on June 18, 2013, Terry admitted that he violated a condition of his
No. 13-5895
United States v. Terry

supervised release by committing the drug-trafficking offense, to which he had pleaded guilty in

state court and received a ten-year sentence reduced to time served. Based on Terry’s Grade A

violation and criminal history category of VI, the sentencing guidelines called for a range of

33 to 41 months of imprisonment. As the district court determined, that range was restricted to

24 months of imprisonment due to the two-year statutory maximum for Terry’s underlying Class

C offense. See 18 U.S.C. § 3583(e)(3). Terry requested that the district court credit the time

served in state custody against any federal sentence. The district court sentenced Terry to

24 months of imprisonment, with no further supervision, and expressly left the calculation of

credit for time served to the Bureau of Prisons (“BOP”).

       In this timely appeal, Terry challenges his 24-month sentence as procedurally and

substantively unreasonable. We review sentences imposed upon revocation of supervised release

in the same way that we review sentences imposed upon conviction—for procedural and

substantive reasonableness under a deferential abuse-of-discretion standard. United States v.

Bolds, 511 F.3d 568, 578 (6th Cir. 2007).

       We “must first 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 [18 U.S.C.] § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence

. . . .” Gall v. United States, 552 U.S. 38, 51 (2007). Terry contends that his sentence is

procedurally unreasonable because the district court (1) failed to discuss the pertinent sentencing

factors set forth in § 3553(a) and (2) failed to provide an adequate explanation for denying his

request for a concurrent sentence and ordering his sentence to run consecutively.




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No. 13-5895
United States v. Terry

       Under 18 U.S.C. § 3583(e), the district court, upon finding by a preponderance of the

evidence that the defendant violated a condition of supervised release, may revoke the

defendant’s supervised release and impose a term of imprisonment after considering certain

sentencing factors set forth in § 3553(a). However, when revocation and imprisonment are

mandatory under § 3583(g) because, as here, the defendant possessed a controlled substance,

“the statute does not require consideration of the § 3553(a) factors.” United States v. Giddings,

37 F.3d 1091, 1095 (5th Cir. 1994). See also United States v. Doe, 617 F.3d 766, 772 (3d Cir.

2010) (“While § 3583(g) does not expressly require consideration of the § 3553(a) factors, it

does not prohibit the sentencing court from doing so.”). The only limitation in § 3583(g) is that

the sentence not exceed the statutory maximum authorized under § 3583(e)(3), which is two

years in Terry’s case. See § 3583(g)(4).

       In any event, the district court considered the § 3553(a) factors, including the policy

statement range and its restriction due to the statutory maximum, Terry’s significant criminal

history, which placed him in criminal history category VI, and his dealing cocaine while on

supervision, which implicated the need to deter criminal conduct and protect the public. During

the sentencing portion of the hearing, Terry’s only request was that the district court give him

credit for time served in state custody. The district court acknowledged Terry’s request, pointing

out that he received state credit for that custody, and declined to calculate any credit for time

served, leaving that calculation to the BOP. By considering the relevant § 3553(a) factors and

addressing Terry’s sole argument, the district court imposed a procedurally reasonable sentence.

See United States v. Cochrane, 702 F.3d 334, 345 (6th Cir. 2012) (citing Rita v. United States,

551 U.S. 338, 358 (2007)).




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No. 13-5895
United States v. Terry

       Terry further argues that his sentence was procedurally unreasonable because the district

court failed to provide an adequate explanation for denying his request for a concurrent sentence

and ordering his sentence to run consecutively. At the time that the district court imposed

Terry’s 24-month sentence upon revocation of his supervised release, Terry was not serving any

other sentence. Terry’s state sentence had already been reduced to time served. Therefore, there

were no multiple sentences to run consecutively or concurrently. As for any credit for time

served, the district court properly left that calculation to the BOP. See United States v. Crozier,

259 F.3d 503, 520 (6th Cir. 2001) (“[T]he power to grant credit for time served lies solely with

the Attorney General and the Bureau of Prisons.”).

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

a sentence arbitrarily, bases the sentence on impermissible factors, or gives an unreasonable

amount of weight to any pertinent factor.” Cochrane, 702 F.3d at 345 (quoting United States v.

Conatser, 514 F.3d 508, 520 (6th Cir. 2008)). Terry contends that his sentence was substantively

unreasonable because the district court based the sentence on his new drug-trafficking offense

rather than his original felon-in-possession offense.

       “[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:

       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 U.S.S.G. Ch. 7, Pt. A) (internal citation omitted).

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No. 13-5895
United States v. Terry

       In the instant case, the district court stated: “Also the court cannot have people on

supervision dealing cocaine. That’s just—it’s just not possible for me to give reduced sentences

to cocaine dealers while they’re on supervision.” (emphasis added). The district court focused

on Terry’s breach of trust in failing to comply with the conditions of his supervised release and

properly sanctioned him for that breach.

       For the foregoing reasons, we AFFIRM Terry’s 24-month sentence as procedurally and

substantively reasonable.




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