                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0031n.06
                          Filed: January 15, 2009

                                         No. 07-5188

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
KELLOA M. FIELDS,                               )    WESTERN DISTRICT OF TENNESSEE
                                                )
       Defendant-Appellant.                     )



       Before: DAUGHTREY and KETHLEDGE, Circuit Judges; RESTANI,* Judge.


       PER CURIAM.         The defendant, Kelloa Fields, appeals from the judgment of the

district court revoking the period of supervised release imposed in a prior criminal

proceeding and imposing a new 60-month term of imprisonment for the violation leading

to the revocation. Specifically, Fields contends that the new sentence, which is higher than

the applicable guideline range, is unreasonable. We disagree and, therefore, affirm the

judgment of the district court.


                     FACTUAL AND PROCEDURAL BACKGROUND




       *
         Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade,
sitting by designation.
No. 07-5188
United States v. Fields

       While subject to five years of supervised release following service of a 94-month

prison term for possession with intent to distribute cocaine base, Kelloa Fields was

arrested on an unrelated charge of second-degree murder. Because one condition of his

supervised release required that Fields “not commit another federal, state, or local crime,”

the defendant’s probation officer requested that the supervised release be revoked in light

of the murder charge.


       At the revocation hearing, the government presented witnesses whose testimony

connected Fields with an aggravated assault, if not with second-degree murder. Two

individuals, Gary Schoonover and Albert Rhea, testified that they were driving together on

North Hollywood Boulevard in Memphis when they saw Fields running down the sidewalk

after another individual who appeared to be a male teenager or child. At one point during

the chase, the smaller individual, who was later identified as 24-year-old Stacy Davis,

ducked between two vehicles parked along the street in an apparent effort to escape from

Fields. Eventually, however, the defendant caught up with Davis and was seen raising his

leg in a kicking motion toward Davis’s lower back. Although neither Schoonover nor Rhea

actually saw Fields’s foot contact Davis, one of the witnesses testified that he saw “what

looked like the adult pushing [Davis] out [into the street] with his foot.” Unfortunately, as

Davis was pushed into the lanes of traffic, an automobile driving by hit the victim, killing

him. Both Schoonover and Rhea claimed unequivocally, however, that the driver of that

vehicle had no opportunity whatever to avoid the collision.



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No. 07-5188
United States v. Fields

       Additional evidence introduced at the hearing indicated that the defendant’s anger

at Davis resulted from a disagreement over money owed by Davis and Davis’s fiancee to

the defendant and to the defendant’s girlfriend. Further information supplied through police

reports confirmed that Fields had attacked Davis prior to chasing him down the sidewalk

and that the defendant “slapped [Davis] and then repeatedly punched him in the stomach.

Then threw him on the ground and started kicking him in the face, stomach, and the head.”

Fields did not dispute that he and Davis fought over an unpaid debt or that he chased

Davis down the street. He insisted, however, that he did not push or kick Davis into traffic

but, instead, that Davis, of his own volition, ran into the street to escape from the

defendant.


       In ruling upon the revocation request, the district judge pointed out the serious,

vicious nature of the crime that involved an attack by Fields, a 250-pound man, upon a

mentally-challenged, 125-pound man who was such slight build that witnesses thought he

was a child or a teenager. The district judge also discussed the need to protect society,

the need to deter other persons from committing crimes, and the need to provide just

punishment for an individual who callously violated the supervised release prohibition on

commission of additional crimes. Finally, when discussing consideration of the relevant

guideline sentencing range, the district court stated:


       In this case, the guideline range is lower than the [statutory] maximum, but
       it is substantial, and it might constitute an appropriate sentence in the case.
       The guideline range in the case is 27-33 months. We also want to avoid in
       any situation unwarranted sentencing disparity when we’re sentencing

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No. 07-5188
United States v. Fields

       individuals. Those are all things that the court should consider. It would be
       hard to contemplate any case that is more appropriate for a high end
       sentence. Even the admitted facts are disturbing, extremely disturbing. The
       facts that are somewhat contested, but not contested in this case with any
       credible proof are even more disturbing. This is a case where the
       appropriate sentence is, in fact, five years incarceration in a federal facility.
       So what we will do in this case is enter a judgment to that effect.
                                          * * * * *
       I have considered whether it should be, for example, 33 months, plus a
       period of additional supervision because that is what I was considering as
       the alternative, and whether that might be more constructive, that’s what I
       was debating, frankly. And in my mind, if I – it has some appeal, the problem
       is the gravity of the offense conduct.


                                       DISCUSSION


       Before this court, Fields does not challenge the actual revocation of his supervised

release following his arrest for second-degree murder. Indeed, section 7B1.3(a)(1) of the

United States Sentencing Guidelines mandates that “[u]pon a finding of a Grade A . . .

violation [(a federal, state, or local offense that is a crime of violence and is punishable by

a term of imprisonment exceeding one year)], the court shall revoke probation or

supervised release.” (Emphasis added.) Instead, Fields contends only that the prison

sentence imposed upon him after such revocation should have been a sentence within the

applicable guideline range rather than a prison term equal to the statutory maximum

punishment.


       Upon finding, by a preponderance of the evidence, that a defendant has violated a

condition of supervised release, a court may revoke that supervised release “and require


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No. 07-5188
United States v. Fields

the defendant to serve in prison all or part of the term of supervised release authorized by

statute for the offense that resulted in such term of supervised release without credit for

time previously served on postrelease supervision.” 18 U.S.C. § 3583(e)(3). Thus,

because the district court originally sentenced Fields to five years of supervised release

after service of his prison sentence for possession with intent to distribute crack cocaine,

in revoking the defendant’s supervised release, the court was statutorily authorized to

impose an additional prison term of up to five years. According to the relevant sentencing

guidelines, however, the range of imprisonment applicable to a criminal history category

II offender who was on supervised release as a result of a Class A felony and who

committed a Grade A violation is only 27-33 months. See U.S.S.G. § 7B1.4(a)(2). The

defendant insists that consideration of the sentencing factors listed in 18 U.S.C. § 3583(e)

supports a sentence within that guideline range and that the 60-month sentence imposed

by the district court is thus unreasonable.


       We review sentences imposed following the revocation of supervised release in the

same manner that we review other sentences in the aftermath of the United States

Supreme Court’s opinion in United States v. Booker, 543 U.S. 220 (2005). See United

States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007). Consequently, we apply “a deferential

abuse of discretion standard for reasonableness” to the district court’s sentencing

determination. See id. (citations and internal quotation marks omitted).




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No. 07-5188
United States v. Fields

       Pursuant to the explicit terms of § 3583(e), a district court may sentence a

supervised release violator to an additional prison term “after considering 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).”

In this case, the district judge clearly considered such factors and, although not referencing

each delineated subsection of 18 U.S.C. § 3553(a), did comment upon: (1) the nature and

circumstances of the offense, including the “great disparity in size” between the defendant

and the victim; (2) the history and characteristics of the defendant, emphasizing that

Fields’s criminal conduct was not aberrant behavior but simply another example of Fields’s

inability to fulfill his societal responsibilities; (3) the need to protect society, deter others

from crime, and impose a just punishment when there is “repeated conduct involving

criminal activity”; (4) the possibility of imposing additional conditions of release and extra

rehabilitative activity; and (5) the avoidance of unwarranted sentencing disparities. Of

course, “[t]here is no requirement . . . that a district court engage in a ritualistic incantation

to establish consideration of a legal issue. Nor is there a requirement that a district court

make specific findings relating to each of the factors considered.” United States v.

McClellan, 164 F.3d 308, 310 (6th Cir. 1999) (citations and internal quotation marks

omitted).


       Nevertheless, a sentencing court must still “provide at least an indication of its

reasons for imposing a sentence that exceeded the recommended sentencing range.” Id.

On appeal, Fields does not suggest that no such explanation was offered. Instead, he

contends that reference to the applicable section 3553(a) factors was “illusory and not

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No. 07-5188
United States v. Fields

actual” and that the sentencing court gave “undue weight to the details of the new criminal

offense,” a factor not mentioned in 18 U.S.C. § 3583(e)’s list of sentencing considerations.


       Without question, section 3583(e) does not list among the factors that may be

considered in resentencing after revocation of supervised release those evaluations

identified in 18 U.S.C. § 3553(a)(2)(A) – “the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment

for the offense.” In United States v. Lewis, 498 F.3d 393, 399-400 (6th Cir. 2007), cert.

denied, 129 S.Ct. 43 (2008), however, the Sixth Circuit held “that it does not constitute

reversible error to consider § 3553(a)(2)(A) when imposing a sentence for violation of

supervised release, even though this factor is not enumerated in § 3583(e).” In making

that determination, the court stated:


       First of all, § 3583(e) provides merely that the court “may, after considering
       the [specified] factors . . . revoke a term of supervised release.” It does not
       state that a court may revoke supervised release after “only considering” the
       enumerated factors. Second, the three considerations in § 3553(a)(2)(A),
       namely the need “to reflect the seriousness of the offense,” “to promote
       respect for the law,” and “to provide just punishment for the offense,” are
       essentially redundant with matters courts are already permitted to take into
       consideration when imposing sentences for violations of supervised release.


Id. at 400.


       The district court’s sentencing determination thus entailed consideration of

appropriate statutory factors. In light of those factors, especially the specter of a six-foot-

two-inch, 250-pound defendant viciously assaulting a five-foot-four-inch, 125-pound,

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No. 07-5188
United States v. Fields

mentally-handicapped individual over a monetary debt, chasing the smaller man down the

street, and then propelling him into oncoming traffic, the 60-month sentence imposed by

the district judge is at least reasonable.      Consequently, according that sentencing

determination the deference to which it is due, the district court did not abuse its discretion

in imposing the challenged sentence upon Fields.


                                       CONCLUSION


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




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