                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 13a0315n.06

                                          No. 11-4151                                 FILED
                                                                                   Mar 29, 2013
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee                         )
                                                  )
v.                                                )     ON APPEAL FROM THE UNITED
                                                  )     STATES DISTRICT COURT FOR THE
TIMOTHY BAKER,                                    )     NORTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellant                        )
                                                  )
                                                  )



BEFORE:        MERRITT, CLAY, and GRIFFIN, Circuit Judges.


       MERRITT, Circuit Judge. In this criminal case, the defendant appeals his sentence of two

years’ imprisonment for violations of supervised release. For the reasons set forth below, we find

the sentence reasonable and affirm the district court’s judgment.

                                             I. Facts

       In 2008, Timothy Baker began serving a ten-month sentence followed by three years of

supervised release for unlawful access to stored communications. While on supervised release,

William Decker gave Baker a second chance. Decker employed Baker at his kitchen cabinet

company as an internet salesman. Customers could order the cabinets directly from the company’s

website or over the phone. The phone sales garnered commissions; the self-orders did not.
No. 11-4151
United States of America v. Timothy Baker

       Decker testified that a few weeks after Baker started working for him, the number of self-

orders dramatically decreased and the number of commissions credited to Baker for phone sales rose

significantly. Decker stated that he soon learned that Baker had configured the computer system to

drive all the self-orders to himself in order to profit from the commissions and had additionally

pocketed $650 dollars from the company.

       Baker was arrested for violating his supervised release based on this theft as well as for

failure to submit monthly reports and failure to pay restitution in a timely manner. Baker only

contested the theft and pleaded guilty to the other violations. At sentencing, based largely on

Decker’s testimony, the judge found that Baker committed the theft by a preponderance of the

evidence. Baker faced a guidelines range of 5 to 11 months and a statutory maximum of two years.

The judge sentenced Baker to two years.

                                           A. Sentencing

       At the sentencing hearing, the judge spoke extensively about the nature of the theft and his

particular frustration with Baker for taking advantage of a “good samaritan.” Sent. Tr. at 44. The

judge stated, “It is the mindset that troubles me and failure to have learned the lesson that troubles

me, and it’s the use of a computer. It’s the taking advantage that troubles me.” Id. at 31.

       Baker’s attorney argued for a lesser sentence, stating that Baker had a drug habit and suffered

from Attention Deficit Hyperactivity Disorder. Baker also addressed the judge. He told the judge

that he was “strung out on pills” and was sorry for his betrayal of trust. Id. at 40.




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        The judge, focusing on the intent and deliberation involved, laid out in detail his reasons for

sentencing Baker to the statutory maximum of 2 years. He mentioned Baker’s previous criminal

history, the need to protect the public, the seriousness of the crime, and deterrence.

        Baker timely filed this appeal, arguing that his sentence is both procedurally and

substantively unreasonable.

                                                II. Analysis

                                   A. Procedural Unreasonableness

        Generally, this Court reviews a sentence for reasonableness under an abuse of discretion

standard. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). If, however, the district court

conducted a Bostic inquiry and the defendant failed to object to the procedural reasonableness of the

sentence, plain error review applies. United States v. Davy, 433 F. App’x 343, 347 (6th Cir. 2011).

Under the plain error standard, the defendant must prove (1) the district court erred, (2) the error was

plain, (3) the error affected substantial rights, and (4) the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732 (1993).

Baker did not object at the sentencing hearing and both parties agree that plain error review applies.

        Baker argues that his sentence is procedurally unreasonable for two reasons. First, he argues

that in imposing the two-year sentence, the judge departed rather than varied from the guidelines

range without giving the requisite notice associated with a departure. Second, Baker asserts that the

judge was required to address each mitigating factor put forth by the defendant and that his failure

to mention Baker’s drug abuse rendered the sentence procedurally unreasonable.



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        A departure results from the district court’s application of a particular guidelines provision,

and a variance refers to the selection of a sentence outside of the advisory range based upon the §

3553(a) factors. United States v. Grams, 566 F.3d 683, 686-87 (6th Cir. 2009). The sentencing

transcript makes clear that the judge did not reference any guidelines provisions, but instead recited

a variety of reasons based on Baker’s history and characteristics and the nature of the crime as to why

he was deviating upward from the advisory guideline range. The judge based the sentence on the

§ 3553(a) factors and therefore, although he did not explicitly categorize it in this way, he varied

upward. Although it behooves a district court to indicate clearly whether it is departing or varying,

a sentence is not per se procedurally unreasonable if the district court fails to specify this distinction.

United States v. Denny, 653 F.3d 415, 419 (6th Cir. 2011); United States v. Herrera-Zuniga, 571

F.3d 568, 586 (6th Cir. 2009). Moreover, even if the judge departed rather than varied, the

procedural reasonableness argument would still fail because the notice requirement associated with

a departure under Fed. R. Crim. P. 32(h) does not apply to a probationary setting such as a revocation

of supervised release. See United States v. Dawe, 362 F. App’x 436, 438 (6th Cir. 2010) (“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 also, e.g.,United States v. Gonzalez, 275

F. App’x 378 (5th Cir. 2008); United States v. Ryans, 237 F. App’x 791 (4th Cir. 2007); United

States v. Redcap, 505 F.3d 1321 (10th Cir. 2007).

        Further, the judge’s failure to specifically reference Baker’s drug abuse does not make his

sentence procedurally unreasonable. The judge did not impose the sentence without providing

detailed reasoning for imposing the statutory maximum. Cf. United States v. Thomas, 498 F.3d 336

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United States of America v. Timothy Baker

(6th Cir. 2007). In United States v. Gunter, 620 F.3d 642, 646 (6th Cir. 2010), we adopted a

functional approach to examining the reasonableness of a sentence, concluding that a judge need not

give a formulaic point-by-point discussion of each and every mitigation argument. Rather, we must

look to the entirety of the sentencing transcript and determine whether the district court conducted

a meaningful sentencing hearing and truly considered the defendant’s arguments. Id.

        Here, the district court spent a significant amount of time outlining the nature of Baker’s

violations, focusing on his intent, deliberation, and betrayal of trust. The judge carefully considered

Baker’s previous criminal history, his education and background, and the need to protect the public

from Baker’s criminal proclivities. Although the judge did not specifically mention the drug abuse,

the sentencing hearing was nonetheless meaningful and considerate of a variety of factors. Under

the plain error standard, the sentence was appropriate.

                                 B. Substantive Unreasonableness

        This court reviews substantive reasonableness for an abuse of discretion. United States v.

Richards, 659 F.3d 527, 549 (6th Cir. 2011). District courts have wide discretion in fashioning

sentences. United States v. Guthrie, 557 F.3d 243, 256 (6th Cir. 2009). A sentencing judge is not

required to recite verbatim the statutory sentencing factors. United States v. Jeross, 521 F.3d 562,

583 (6th Cir. 2008). A sentence may be substantively unreasonable if the district court selects the

sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a)

factors, or gives an unreasonable amount of weight to any pertinent factor. United States v. Vowell,

516 F.3d 503, 510 (6th Cir. 2008). In evaluating substantive unreasonableness, the court looks to

the totality of the circumstances, including the extent of any variance from the guidelines range.

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United States v. Christman, 607 F.3d 1110, 1118 (6th Cir. 2010) (quoting Gall v. United States, 552

U.S. 38, 51 (2007)).

       The judge here was well within his discretion to impose the statutory maximum. He had to

confront an individual who had come before him just a few years earlier for a computer-based crime

and now had reoffended on supervised release by again using a computer to steal from a man who

tried to give him a second chance. The judge, clearly troubled by this offense, correctly calculated

the guidelines range and adequately explained his reasons for the upward deviation. The judge

sufficiently detailed the § 3553(a) factors and did not abuse his discretion in imposing the sentence.

                                          III. Conclusion

       Baker’s sentence is both procedurally and substantively reasonable. Accordingly, the

judgment of the district court is affirmed.




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