                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0029n.06

                                          No 07-2460                                  FILED
                                                                                   Jan 19, 2010
                             UNITED STATES COURT OF APPEALS                  LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )        ON APPEAL FROM THE
       Plaintiff-Appellee,                              )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE EASTERN
v.                                                      )        DISTRICT OF MICHIGAN
                                                        )
KELLY DAWE,                                             )                          OPINION
                                                        )
       Defendant-Appellant.                             )
                                                        )



BEFORE:         MARTIN, BOGGS, and COLE, Circuit Judges.

       COLE, Circuit Judge. Defendant-appellant Kelly Dawe appeals her forty-two-month

sentence for violating the conditions of her probation. Dawe argues that the sentence must be

vacated because the district court did not comply with the notice requirement of Federal Rule of

Criminal Procedure 32(h) and because of due process concerns. She also argues that the court’s

failure at her sentencing hearing to calculate correctly the applicable sentencing range under the

United States Sentencing Guidelines renders the sentence procedurally unreasonable. For the

following reasons, we VACATE the sentence and REMAND the case to the district court for

resentencing.

                                      I. BACKGROUND

       On August 16, 2005, Dawe signed a plea agreement for Conspiracy to Possess with the Intent

to Distribute and Distribution of Cocaine and Cocaine Base, 21 U.S.C. §§ 841(a)(1), 846. At her
No. 07-2460
United States v. Dawe

sentencing hearing on November 7, 2005, the district court determined that the recommended

sentencing range under the United States Sentencing Guidelines (“Guidelines” or “USSG”) was

forty-six to fifty-seven months. Following the Government’s oral motion for a downward departure

under USSG § 5K1.1 for substantial assistance, the court sentenced Dawe to three years of probation,

with the first nine months to be spent in a corrections center. On November 2, 2006, following

Dawe’s testing positive for cocaine, the court modified the sentence to include an additional period

of residence in the corrections center of up to 180 days. On September 24, 2007, the Eastern District

of Michigan Probation Department issued a report to the district court that alleged Dawe had violated

several conditions of her probation¯including failing to report to her probation officer, testing

positive for drugs, and failing to participate in a substance abuse program¯and requested that a

warrant be issued for her arrest. The district court issued the warrant on October 7, and Dawe was

arrested on October 25.

       At a hearing before the district court on November 8, Dawe pled guilty to violating the

conditions of her probation.1 Her attorney acknowledged that she had a substance abuse problem

and urged the court to include mandatory treatment in its sentence. The government also requested

that Dawe be put into a treatment program, stating “[t]his is a critical point in [Dawe’s] life. She is

young. She is salvageable.” (Sentencing Tr. 9.) The district court sentenced Dawe to a term of

forty-two months’ imprisonment. As the adequacy of the court’s explanation for this sentence is


       1
         At the hearing, the district court and both parties erroneously referred to Dawe’s offense as
violating the conditions of her supervised release. Similarly, the district court’s sentencing opinion
incorrectly refers to Dawe’s supervised release violations. Before this Court, however, both parties
correctly identify Dawe’s offense as violating the conditions of her probation.

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United States v. Dawe

central to the procedural reasonableness (or lack thereof) of Dawe’s sentence, we include the court’s

announced rationale in its entirety:

                It occurs to the Court that this defendant pled guilty originally to conspiracy
       to distribute cocaine and crack cocaine. That carried a mandatory minimum sentence
       of five years and a maximum of forty years. She pled guilty to a Rule Eleven Plea
       Agreement with a guideline range of 46 to 57 months and with substantial assistance
       the government recommended a range of 12 to 24 months.
                The government did, in fact, make a motion pursuant to 5K1.1 because of her
       substantial assistance in this case and at sentencing the Court deviated from that.
       Instead of giving the defendant prison time within the range of 12 to 24 months, the
       Court placed this defendant on probation, three years probation with drug treatment
       and testing. And obviously that has not worked.
                The original total offense level was 21 with a category of one. That came out
       to a guideline of 37 to 46 months. And, again, the Court deviated from that and
       sentenced this defendant to probation. Obviously it did not work.
                Based on my understanding of this case it’s going to be the sentence of the
       Court that, first of all, supervised release of this defendant be terminated. The
       defendant is going to be turned over to the Bureau of Prisons and confined for a
       period of 42 months. That is basically the midpoint of her prior guideline range of
       37 to 46 months.

(Id. at 10-11.) At no point during the hearing did the court mention the applicable Guidelines range

of three to nine months for Dawe’s probation violations. See USSG § 7B1.4 (listing terms of

imprisonment advised following violation and revocation of probation). Nor did it explain, beyond

stating that the probationary sentence “obviously had not worked,” its rationale for assigning a non-

Guidelines sentence. (Sentencing Tr. at 10-11) The court concluded the hearing by asking whether

there was anything further either counsel wished to place on the record, and both counsel declined.

       On November 15, 2005, the court issued a Sentencing Opinion that “explains why” the forty-

two-month sentence was warranted. The court noted that the sentence range recommended for

Dawe’s probation violations under USSG § 7B1.4 was a term of three to nine months. The court


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United States v. Dawe

found “particularly relevant,” however, Application Note Four to § 7B1.4, which states that

“[w]here the original sentence was the result of a downward departure (e.g., as a reward for

substantial assistance) . . . that resulted in a sentence below the guideline range applicable to the

defendant’s underlying conduct, an upward departure may be warranted.” The court then articulated

the rationale for its sentencing determination under the rubric of the 18 U.S.C. § 3553(a) factors,

pointing to the significant downward departure Dawe originally had been granted; her subsequent

repeated probation violations; the seriousness of these violations; her “complete disregard” for the

probation department and the judicial officers who had attempted to give her a second chance; her

“lack of respect” for the law; the demonstrated inability of a minimal sentence to deter her from

engaging in criminal conduct; the likelihood that she would return to drug dealing to support her

drug habit, thereby posing a danger to herself and others; and the need to avoid unwarranted

sentencing disparities by taking into account the Guidelines range applicable to her original

conviction. Given these considerations and in light of Application Note Four, the court concluded

that the appropriate sentence was forty-two months.

       Dawe filed a timely notice of appeal on November 20, 2007. This court has jurisdiction over

Dawe’s appeal pursuant to 28 U.S.C. § 1291.

                                         II. DISCUSSION

       Dawe argues that her sentence must be vacated due to the district court’s failure to comply

with Federal Rule of Criminal Procedure 32(h) (“Rule 32(h)”), which states, in relevant part, that

“[b]efore the court may depart from the applicable sentencing range on a ground not identified for

departure either in the presentence report or in a party’s prehearing submission, the court must give

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United States v. Dawe

the parties reasonable notice that it is contemplating such a departure.” Fed. R. Crim. P. 32(h). This

Court has never decided whether Rule 32(h)’s notice requirement extends to sentences for revocation

of probation or supervised release, which are generally governed by Federal Rule of Criminal

Procedure 32.1. Circuits that have considered this question universally have held, under varying

rationales, that Rule 32(h)’s notice requirement does not extend to such sentences. See United States

v. Gonzalez, 275 F. App’x 378, 378 (5th Cir. 2008); United States v. Redcap, 505 F.3d 1321, 1322-

23 (10th Cir. 2007); United States v. Ryan, 237 F. App’x 791, 793 (4th Cir. 2007); United States v.

Leonard, 483 F.3d 635, 638-39 (9th Cir. 2007); United States v. Serrano, 174 F. App’x 107, 109 &

n.3 (3d Cir. 2006); see also United States v. Shaw, 180 F.3d 920, 922-23 (8th Cir. 1999) (listing

cases prior to United States v. Booker, 543 U.S. 220 (2005), and codification of notice requirement

in Rule 32(h)). We need not reach this question, however, as we find Dawe’s sentence procedurally

unreasonable.

       Dawe was not given adequate opportunity to object to the reasonableness of her sentence

before the district court. “[A]fter pronouncing the defendant’s sentence but before adjourning the

sentencing hearing,” the district court must ask whether the parties have any objections to the

sentence; if the parties are not provided this opportunity, “they will not have forfeited their

objections.” United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). In this case, at the

conclusion of the hearing, the district court asked, “[i]s there anything further either counsel wish

to place on the record in this matter?” This general question does not satisfy the Bostic requirement.

See United States v. Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (holding that Bostic was not satisfied

when court asked counsel “[d]o you have anything further for the record?”). Accordingly, we review

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Dawe’s sentence, not for plain error, but instead “‘under a deferential abuse-of-discretion standard’

for reasonableness.” United States v. Lalonde, 509 F.3d 750, 769 (6th Cir. 2007) (quoting Gall v.

United States, 552 U.S. 38, 41 (2007)). Under this standard, the Court conducts “a robust review

of the factors evaluated and the procedures employed by the district court in reaching its sentencing

determination.” United States v. Bolds, 511 F.3d 568, 578-79 (6th Cir. 2007) (internal quotation

marks and citation omitted).

        Dawe argues that the court’s failure at her sentencing hearing to calculate correctly the

applicable sentencing range rendered her sentence procedurally unreasonable. The district court, at

the time of sentencing, must state in open court the reasons for its imposition of a particular sentence.

18 U.S.C. § 3553(c). “The district court must also acknowledge the defendant’s applicable

Guideline range.” United States v. Johnson, Nos. 08-5890, 08-5891, slip op. at 14 (6th Cir. 2009)

(citing United States v. Blackie, 548 F.3d 395, 400 (6th Cir. 2008)) (internal quotation marks

omitted). This requirement is more than a mere formality: it exists to “assure that the court has

properly calculated the applicable Guidelines range, and that adequate explanation is provided to

allow for meaningful appellate review and the perception of a fair sentence.” Blackie, 548 F.3d at

401 (citing Gall, 552 U.S. at 50-51). Here, the court failed to state in open court the applicable

Guidelines range of three to nine months; instead, the court referred to only the Guidelines range

applicable to Dawe’s original conviction, incorrectly stating it was 37 to 46 months. This omission

precludes meaningful appellate review of whether the court properly calculated the applicable

Guidelines range and constitutes an abuse of discretion on the part of the district court. Cf. id. at



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United States v. Dawe

400-01 (“A sentence imposed without complying with the requirements of § 3553(c) constitutes

[plain] error.”).

        Nor did the district court explain at the hearing the rationale for its imposition of a non-

Guidelines sentence. If the court decides a non-Guidelines sentence is warranted, it must state, “in

open court . . . the specific reason for the imposition of a sentence different from that described [in

the Guidelines], which reasons must also be stated with specificity in the written order of judgment

and commitment.” 18 U.S.C. § 3553(c); see also United States v. Kincaid, 959 F.2d 54, 55 (6th Cir.

1992) (noting that the open court requirement “ensures that a defendant at the time of sentencing will

know the grounds for an upward departure” and is not satisfied by a “belated attempt . . . to correct

[a] failure to provide a specific statement at the sentencing hearing” in a subsequently issued

opinion). The court’s Sentencing Opinion listed in detail the reasons for its non-Guidelines sentence,

including the guidance in Application Note Four to § 7B1.4 of the Guidelines and a litany of

considerations under 18 U.S.C. § 3553(a). At the sentencing hearing, however, the court did not

mention any of these reasons for disagreeing with the applicable Guidelines range, instead vaguely

stating only that the probationary sentence “obviously had not worked.” This failure constitutes an

abuse of discretion on the part of the district court. See Bolds, 511 F.3d at 579 (a district court

“necessarily abuses its sentencing discretion if it ‘commit[s] [a] significant procedural error, such

as failing to calculate (or improperly calculating) the Guidelines range . . . or failing to adequately

explain the chosen sentence¯including an explanation for any deviation from the Guidelines

range’”) (quoting Gall, 552 U.S. at 51); see also United States v. Manning, 317 F. App’x 517, 522

(6th Cir. 2009) (“‘Even though . . . the policy statements contained in Chapter Seven of the

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Sentencing Guidelines are merely advisory, a court still must consider them prior to imposing a

sentence for revocation of supervised release.’”) (quoting United States v. Carr, 421 F.3d 425, 431

(6th Cir. 2005)).

                                       V. CONCLUSION

       For the foregoing reasons, we VACATE Dawe’s sentence and REMAND the case to the

district court for resentencing.




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