                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0224n.06

                                           No. 18-5876


                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                               Apr 29, 2019
                                                                              DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                               )
                                                         )
        Plaintiff - Appellee,                            )
                                                         )       ON APPEAL FROM THE
 v.                                                      )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
 JACK L. GARNER,                                         )       DISTRICT OF KENTUCKY
                                                         )
        Defendant - Appellant.                           )       OPINION
                                                         )



BEFORE:        ROGERS, DONALD, and THAPAR, Circuit Judges

       ROGERS, Circuit Judge. Under federal statute, if a defendant on supervised release

unlawfully possesses a controlled substance, the court “shall revoke” the defendant’s supervised

release and order some term of imprisonment. 18 U.S.C. § 3583(g). But if the defendant fails a

drug test, the court “shall consider whether the availability of appropriate substance abuse

treatment programs . . . warrants an exception” to the revoke-and-imprison requirement.

§ 3583(d). The court in this case revoked Jack Garner’s supervised release, in part for failing drug

tests, and sentenced him to a further twenty-one months in prison. Garner argues on appeal that

the district court did not consider in-patient drug treatment as an alternative to imprisonment. The

record, however, sufficiently shows that the district court did consider appropriate substance-abuse

programs, even though the court did not explicitly say so.
Case No. 18-5876, United States v. Garner


       Back in August 2008 Garner pleaded guilty to possession of crack cocaine with intent to

distribute, 21 U.S.C. § 841(a)(1), and was sentenced to ten years’ imprisonment followed by a

five-year term of supervised release. After his sentence was reduced because of a change in the

guidelines, Garner began his supervised release in January 2015. Two years later, in February

2017, he pleaded guilty in Kentucky state court to possession of cocaine, a clear violation of the

terms of his federal supervision. At a revocation hearing later that year, Garner admitted the

violation; but the court, rather than revoke his supervised release, ordered Garner to submit to

location monitoring for six months and to participate in moral reconation therapy, a form of

substance-abuse treatment. Garner graduated from the therapy program in February 2018.

       Soon thereafter, in June 2018, Garner’s probation officer filed a petition alleging that

Garner had admitted using marijuana and oxycodone and had failed three drug tests since the

beginning of that year. At the revocation hearing, Garner argued through counsel that he failed

the tests because of lawfully prescribed oxycodone use, but the district court found that Garner did

not have a valid prescription when he failed the tests. The court found that Garner had therefore

violated the terms of his supervised release, and heard argument from both sides about sentencing.

The Government argued that a prison term at the low-end of the advisory range (twenty-one

months) was warranted in light of the court’s previous leniency in ordering Garner to therapy

rather than prison. Defense counsel responded that Garner was a drug addict who needed help and

asked the court to “impose a lesser punishment combined with some sort of inpatient treatment,”

which Garner had never received. When asked if he had anything to add, Garner replied, “I would

like to say I just need help. That’s all I can say.”

       Having heard argument from both sides, the court expressed concern that Garner had

committed a series of drug violations in the short time since the court showed him leniency at the

                                                   2
Case No. 18-5876, United States v. Garner


last revocation hearing. The court was also concerned that Garner refused to admit several of the

violations despite the positive drug-test results. Thus, “consider[ing] the guidelines and the

3553(a) factors,” the court revoked Garner’s release and sentenced him to twenty-one months’

imprisonment, followed by thirty-six months’ supervised release and inpatient drug treatment. The

court further noted that Garner’s advisory range was 21–27 months given the nature of his

violations and criminal history, and that it “believe[d] the sentence imposed is sufficient but not

greater than necessary to comply with [the] 3553(a)(2) factors.”

       After imposing the sentence, the court asked counsel if there were “any objections that [it

hadn’t] heard?” Counsel for Garner replied, “[n]othing further, Judge.”

       Now on appeal both of Garner’s claims focus for the first time on the district court’s

obligation under 18 U.S.C. § 3583(d) to consider appropriate substance-abuse treatment as an

alternative before imposing imprisonment for a violation of supervised release. Section 3583(g)

requires the court to revoke supervised release if it finds that a defendant possessed a controlled

substance while on supervised release, but § 3583(d) permits the court to grant an exception and

order appropriate substance-abuse treatment instead of imprisonment if the violating defendant

failed a drug test while on supervised release. Neither the court below nor the parties expressly

referred to these statutory provisions during the revocation hearing.

       Garner now argues that the court erred in neglecting to consider in-house substance-abuse

treatment as an alternative to imprisonment (presented as a claim of procedural unreasonableness),

and that his twenty-one-month prison term was too harsh a punishment when inpatient treatment

would have been enough (presented as a claim of substantive unreasonableness).

       Garner did not argue below, and does not argue here, that § 3583(d) requires the court to

explain explicitly why it declined to grant a discretionary exception to the mandatory-

                                                 3
Case No. 18-5876, United States v. Garner


imprisonment provision of § 3583(g). Instead, Garner argues that the district court in fact failed

to consider treatment as an alternative to imprisonment. But the record makes sufficiently clear

that the district court did consider substance-abuse treatment in lieu of imprisonment. First, the

court had ordered therapy rather than imprisonment for Garner’s prior violation—so the court

knew that ordering treatment, as permitted by § 3583(d), was an option. In other words, this is not

a case where the court could have mistakenly thought that imprisonment was required under

§ 3583(g). Second, Garner asked the court at revocation to order inpatient treatment—so there is

no doubt that the option was squarely presented to the court at sentencing. We presume that the

district court considers evidence and arguments presented to it. See United States v. Gale, 468

F.3d 929, 941 (6th Cir. 2006). Third, the court ordered that Garner participate in treatment

following his sentence—so not only did the court consider treatment, it ordered it as requested,

only without also reducing the sentence below twenty-one months. Finally, the court explained

that its sentencing decision was based on its earlier leniency in ordering therapy rather than

imprisonment, Garner’s many controlled-substance violations since then, and Garner’s refusal to

take responsibility for his three failed drug tests. This record shows, if implicitly, that the court

considered treatment, which is all that was required of it.

       It is by now well settled that a district court generally need not expressly mention a

sentencing argument or alternative, so long as the record as a whole shows that it considered the

issue. See Rita v. United States, 551 U.S. 338, 359 (2007); United States v. Crace, 207 F.3d 833,

835–36 (6th Cir. 2000). More specifically, this court has consistently held that a district court’s

consideration is apparent where, as here, the record shows that the court understood that treatment

was an alternative to mandatory revocation under § 3583(g), heard argument on whether to order

treatment, and sufficiently explained its rationale for imposing a sentence of imprisonment rather

                                                 4
Case No. 18-5876, United States v. Garner


than merely ordering treatment. See, e.g., Crace, 207 F.3d at 835–36; United States v. Shropshire,

742 F. App’x 50, 53–54 (6th Cir. 2018); United States v. Williams, 333 F. App’x 63, 70–71 (6th

Cir. 2009); United States v. Metcalf, 292 F. App’x 447, 450 (6th Cir. 2008). Other circuits too

have recognized that “[w]here, for instance, the defendant argues to the district court that a

substance abuse treatment program should be imposed and the court still revokes supervised

release, it is understood that the court implicitly considered and rejected application of the drug

treatment exception.” United States v. Brooker, 858 F.3d 983, 987 (5th Cir. 2017); see also United

States v. Hammonds, 370 F.3d 1032, 1038–39 (10th Cir. 2004).

       Garner looks to several cases where he says the justification for imprisonment, over

treatment, was greater than it is here. Even were he right on that point, it is irrelevant to his

procedural challenge—that is, whether the court considered treatment at all.

       Garner’s second claim, that his sentence is substantively unreasonable because it is greater

than necessary to comply with the purposes of punishment set forth in 18 U.S.C. § 3553(a)(2), also

lacks merit. This argument is based largely on the court’s alleged failure to consider in-house

treatment as an alternative, an issue disposed of above.

       Garner’s substantive-reasonableness argument is reviewed only for abuse of discretion,

and sentences within the guidelines range—like this one—are presumed to be reasonable. United

States v. Johnson, 640 F.3d 195, 202 (6th Cir. 2011). Garner has offered no reason to disturb that

presumption.

       Garner tries to distinguish his case from four others where imprisonment was ordered in

part because the defendant had spurned or squandered prior opportunities for rehabilitation. But

these juxtapositions are unpersuasive as a matter of fact and logic. As to fact, the court here

similarly concluded that Garner had wasted the court’s earlier leniency by returning to drug use so

                                                 5
Case No. 18-5876, United States v. Garner


soon after completing court-ordered substance-abuse therapy. As for logic, it does not follow from

the reasonableness of imprisonment in those (allegedly) worse cases that it is not reasonable to

order imprisonment here as well.

       We affirm.




                                                6
