                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0324n.06
                              Filed: May 9, 2006

                                            No. 05-4232

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
v.                                     )                  UNITED STATES DISTRICT
                                       )                  COURT FOR THE SOUTHERN
THOMAS RAY COFFEE.                     )                  DISTRICT OF OHIO
                                       )
      Defendant-Appellant.             )                          OPINION
                                       )
_______________________________________)


Before: MOORE and GIBBONS, Circuit Judges, and SHADUR,* District Judge.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Thomas Ray Coffee

(“Coffee”) appeals from the sentence imposed by the district court following his guilty plea to a

charge of conspiracy to commit wire and mail fraud. For the reasons discussed below, we AFFIRM

the judgment of the district court.

                                       I. BACKGROUND

       In June 1999, Thomas Coffee was arrested on the basis of a warrant stating that “[t]he

defendant, acting as The Centerville Marketing Group, a/k/a ‘Centerville Marketing’ (‘TCMG’),

participated in a scheme in which TCMG fraudulently sold to private companies substandard,

untested, and/or counterfeit aircraft parts, which had both military and civilian applications.” Joint



       *
          The Honorable Milton Shadur, United States District Judge for the Northern District of
Illinois, sitting by designation.
Appendix (“J.A.”) at 4 (Warrant for Arrest). After a short period of detention, Coffee was released

from custody on an appearance bond with conditions.1 On July 8, 1999, Coffee was indicted by a

federal grand jury for mail fraud, wire fraud, conspiracy, trafficking in counterfeit goods, and aiding

and abetting these offenses.2 Coffee pleaded guilty to one count of conspiracy to commit wire fraud

and mail fraud3 pursuant to a plea agreement in August 2002. In the years between the indictment

and the plea agreement, Coffee’s bond was modified to allow him to travel for both business and

personal reasons and to report to pretrial services less frequently.

       The sentencing proceedings in this case spanned the course of several years; the district court

held four different sessions of sentencing hearings that were delayed by numerous postponements.

During these years, Coffee remained under pretrial supervision. On August 11, 2005, the district

court sentenced Coffee to twelve months of incarceration, a $100 special assessment, $2800 in

restitution, and three years of supervised release. Coffee timely appealed this sentence.

                                           II. ANALYSIS

       On appeal, Coffee argues that the three-year term of supervised release is unreasonable in

light of the fact that he had already served several years of pretrial supervision without incident.


       1
         The conditions of Coffee’s release included restrictions on travel, reporting requirements,
surrender of his passport, and “to have no association with the area of aircraft and/or aviation parts.”
J.A. at 23-24 (Order Setting Conditions of Release).
       2
        The case was transferred from the Eastern District of Pennsylvania to the Southern District
of Ohio in September 2000.
       3
        Coffee pleaded guilty to violating 18 U.S.C. § 371, which states:
       If two or more persons conspire either to commit any offense against the United
       States, or to defraud the United States, or any agency thereof in any manner or for
       any purpose, and one or more of such persons do any act to effect the object of the
       conspiracy, each shall be fined under this title or imprisoned not more than five
       years, or both.

                                                   2
“[W]hen a defendant challenges a district court’s sentencing determination, we are instructed to

determine ‘whether [the] sentence is unreasonable.’” United States v. Webb, 403 F.3d 373, 383 (6th

Cir. 2005) (quoting United States v. Booker, 543 U.S. 220, 261 (2005)), cert. denied, 126 S. Ct. 1110

(2006). “[W]e may conclude that a sentence is unreasonable when the district judge fails to

‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed in 18

U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without

such required consideration.” Id. (quoting Booker, 543 U.S. at 245-46) (footnote omitted).

       A court is permitted to impose a term of up to three years of supervised release as a part of

a sentence for a Class C or D felony. 18 U.S.C. § 3583(a)-(b). The Guidelines provisions regarding

supervised release state as follows:

       (a) The court shall order a term of supervised release to follow imprisonment when
           a sentence of imprisonment of more than one year is imposed, or when required
           by statute.
       (b) The court may order a term of supervised release to follow imprisonment in any
           other case.

U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 5D1.1. Guideline § 5D1.2 sets forth the

appropriate length of the supervised release term:

       (a) Except as provided in subsections (b) and (c), if a term of supervised release is
           ordered, the length of the term shall be: . . .
           (2) At least two years but not more than three years for a defendant convicted
               of a Class C or D felony.

Because Coffee pleaded guilty to a Class D felony4 and the district court chose to impose a term of

supervised release, the three-year term was within the advisory Guidelines range. Thus, this



       4
        Felonies punishable by “less than ten years but five or more years” of imprisonment are
Class D felonies. 18 U.S.C. § 3559(a)(4). Because the maximum term of imprisonment authorized
by 18 U.S.C. § 371 is five years, it meets the minimum requirements of a Class D felony.

                                                 3
sentence must be credited “with a rebuttable presumption of reasonableness.” United States v.

Williams, 436 F.3d 706, 708 (6th Cir. 2006). However, “[t]his rebuttable presumption does not

relieve the sentencing court of its obligation to explain to the parties and the reviewing court its

reasons for imposing a particular sentence.” United States v. Richardson, 437 F.3d 550, 554 (6th

Cir. 2006).

       In analyzing Coffee’s claim that he has been sentenced to a total term of supervision

spanning approximately nine years, we first note the distinct purposes of pretrial supervision and

supervised release. Pretrial supervision is designed to restrict an individual only to the extent

necessary to ensure that he or she will not endanger others and will comply with court orders. The

relevant statutory provisions require release “subject to the least restrictive further condition, or

combination of conditions, that [the] judicial officer determines will reasonably assure the

appearance of the person as required and the safety of any other person and the community.” 18

U.S.C. § 3142(c)(1)(B). Section 3142(j) states that “[n]othing in this section shall be construed as

modifying or limiting the presumption of innocence.” Supervised release, by contrast, is intended

“‘to ease the defendant’s transition into the community after the service of a long prison term for

a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short

period in prison for punishment or other purposes but still needs supervision and training programs

after release.’”5 United States v. Johnson, 529 U.S. 53, 59 (2000) (quoting S. REP. NO. 98-225, at



       5
         The Sentencing Guidelines state that a court is free to impose conditions of supervised
release “to the extent that such conditions (1) [a]re reasonably related to . . . (B) the need for the
sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the
public from further crimes of the defendant; and (D) the need to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in the most effective
manner . . .” U.S.S.G. § 5D1.3(b).

                                                   4
124 (1983)).6 Given this difference, the length of the pretrial supervision period should have no

independent bearing on the reasonableness of the supervised release term.7

        This still leaves the question of whether the three-year term of supervised release was itself

reasonable. Section 3583(c) states that “[t]he court, . . . in determining the length of the term and

the conditions of supervised release, shall consider the factors set forth in section 3553(a)(1),

(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).”8 At sentencing, the district court

discussed the § 3553(a) factors as well as the arguments raised by Coffee. As support for his

unreasonableness claim, Coffee points out that he had “only two prior contacts with law

        6
        Johnson overruled a Sixth Circuit opinion holding that excess prison time served by a
defendant could be credited against the defendant’s subsequent term of supervised release. Id. at
55-56. The Supreme Court explained that this court’s holding was contrary to both the language and
the purpose of 18 U.S.C. § 3624(e), which states that “[t]he term of supervised release commences
on the day the person is released from imprisonment.” Id. at 56-60. The Court stated that an
individual cannot be “released” while still imprisoned. Id. at 57. In addition, “[t]he [rehabilitative]
objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce
terms of supervised release.” Id. at 59.
        7
          However, Coffee’s behavior during the period of pretrial supervision can be considered as
it relates to factors such as deterrence or rehabilitation.
        8
        These factors are:
       (1) the nature and circumstances of the offense and the history and characteristics
            of the defendant;
       (2) the need for the sentence imposed--
            (B) to afford adequate deterrence to criminal conduct;
            (C) to protect the public from further crimes of the defendant; and
            (D) to provide the defendant with needed educational or vocational training,
                  medical care, or other correctional treatment in the most effective manner;
       (4) the kinds of sentence and the sentencing range established for--
            (A) the applicable category of offense committed by the applicable category
                  of defendant as set forth in the guidelines . . .
       (5) any pertinent policy statement . . .
       (6) the need to avoid unwarranted sentence disparities among defendants with
            similar records who have been found guilty of similar conduct; and
       (7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).

                                                   5
enforcement, both relating to his participation in the aircraft parts industry.” Appellant Br. at 11.

However, the district court noted that Coffee’s offense was “[f]ar more serious . . . than the typical

wire and mail fraud where a bank is defrauded of nothing but money,” given the risk that one of the

aircraft parts could have failed. J.A. at 157 (Tr. at 49). In addition, the district court emphasized

the fact that when Coffee was sentenced for his one prior conviction in 1996,9 “he swore off any

further criminal activity” while he “in effect was in the process of committing this offense.”10 J.A.

at 157 (Tr. at 49). The district court stated that a harsher punishment than was imposed in Coffee’s

first conviction11 was necessary for purposes of deterrence. Coffee also points out that he was “not

. . . charged with any additional criminal conduct” during the length of his pretrial supervision; in

addition, “his reporting requirement, during the six year term of supervision, has been periodically

reduced at the request of the United States Pretrial Services office.” Appellant Br. at 11. However,

the district court was aware of Coffee’s pretrial supervision term and apparently believed that a term

of supervised release was still necessary.12 J.A. at 158 (Tr. at 50). The district court considered


       9
        Coffee was prosecuted for mail fraud in federal district court in Missouri.
       10
          The district court explained:
        [B]ased on the stipulated facts agreed to at the plea proceeding at the same time
        [Coffee] appeared before Judge Bartlett on December 12th of 1996 and proclaimed
        himself sorry and determined to lead a blameless life from that point on, at that very
        moment he was engaged in the criminal conduct which formed the basis of this case
        and continued that criminal conduct up through and including June 14th of 1999.
J.A. at 154-55 (Tr. at 46-47).
       11
            Coffee was sentenced to one month of imprisonment and three years of supervised release.
       12
         The district court stated:
       I don’t know whether at this stage of his life this defendant is a risk to commit
       similar offenses, but I would indicate that at least for the time that he is in prison,
       because in truth that is where he is headed and for the period of supervised release,
       we can guarantee that the public safety will not be compromised by this defendant
       in a manner similar to that which he has done on at least two occasions.

                                                  6
rehabilitation, stating, “I don’t know whether rehabilitation truthfully is an issue here except the

extent to which Mr. Coffee might finally be made to realize that this kind of criminal conduct is not

condoned by society.” J.A. at 159 (Tr. at 51). With regard to sentencing disparity, the district court

judge remarked, “I can assure the record no person so situated has received a sentence of less than

this defendant.”13 J.A. at 160 (Tr. at 52).

        In reviewing the sentencing transcript, we believe that it is clear that the district court did not

fail to consider the relevant factors or “simply select[] what the judge deem[ed] an appropriate

sentence without [the] required consideration.” Webb, 403 F.3d at 383. Because the district court

properly articulated its reasoning in the proceedings below, we affirm Coffee’s sentence.

                                         III. CONCLUSION

        For the reasons discussed above, we AFFIRM the judgment of the district court.




J.A. at 158 (Tr. at 50).
        13
          Coffee raised a few additional arguments as support for his position that the term of
supervised release is unreasonable. First, he explained that he “is currently disabled and suffers
from a number of physical and psychological problems.” Appellant Br. at 11. The district court
addressed this concern with regard to the term of imprisonment, concluding that Coffee’s problems
“can be more than adequately treated within the federal prison system.” J.A. at 152 (Tr. at 44).
Coffee also argued that his sons and wife are close to completing their terms of supervised release
or had the supervision terminated, and that “the $100 Special Assessment and all restitution were
paid prior to the time of sentencing.” Appellant Br. at 11. We do not believe that these facts show
that the three-year term of supervised release is unreasonable.

                                                    7
