                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0055n.06
                           Filed: January 23, 2007

                                           No. 06-1492

                          UNITED STATES COURT OF APPEALS
                               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
                                                         )
TAMAR DESHAWN WILLIAMS,                                  )            MEMORANDUM
                                                         )              OPINION
       Defendant-Appellant.                              )




BEFORE:        SUHRHEINRICH, SUTTON and McKEAGUE, Circuit Judges.

       PER CURIAM. This is an appeal from a judgment of sentence revoking defendant’s

supervised release and sentencing him to an additional prison term of 36 months. Defendant

contends the sentence, almost three times longer than the upper end of the advisory guidelines range,

is procedurally and substantively unreasonable. For the reasons that follow, we affirm the judgment.

                                                  I

       On November 17, 1999, defendant-appellant Tamar Deshawn Williams, having pleaded

guilty to possession of cocaine base with intent to distribute, was sentenced in the Middle District

of Florida to a prison term of 63 months, followed by four years of supervised release. Following

his release from prison, jurisdiction over defendant during supervised release was transferred to the

Eastern District of Michigan on January 24, 2005. In April 2005, defendant’s supervising probation
No. 06-1492
United States v. Williams

officer charged him with violating the conditions of supervised release and petitioned the district

court for issuance of an arrest warrant. The petition averred that defendant had been arrested by the

Detroit Police Department on February 8, 2005 and charged with kidnaping and assault and battery,

and that defendant had not timely notified his probation officer of the arrest. The state court

complaint on the kidnaping and assault charges had been dismissed without prejudice on February

22, 2005, when the complaining witness failed to appear. Defendant did not report the arrest to his

probation officer until March 21, 2005, and then falsely explained that the charges had been

dismissed due to “mistaken identity.”

        Specifically, defendant was charged with five violations of the conditions of his supervised

release: (1) commission of another crime, i.e., kidnaping and assault and battery; (2) submission of

an untruthful written report to the probation officer; (3) failure to truthfully answer an inquiry by the

probation officer; (4) failure to maintain employment; and (5) failure to notify the probation officer

within 72 hours of being arrested. Defendant was arrested and a contested hearing on the charged

violations was conducted on May 24, 2005.

        The district court received testimony from two probation officers and two police officers.

As to violations two through five, defendant essentially conceded that technical violations had been

made out, but he argued for leniency. As to violation one, two police officers testified regarding the

fruits of their investigation at the scene of the alleged kidnaping and assault and battery. They

testified to their personal observations as well as to statements received by them from witnesses at

the scene. Their testimony tended to establish that defendant Williams had taken a woman, Christal

Sugg, by the neck and forced her into a vehicle and transported her against her will to his residence.

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In fact, the officers found Ms. Sugg at defendant’s residence in a traumatized state: “frightened. .

. . highly distraught, physically shaking.” Sgt. Jason Sloan, Hearing Tr. p. 46, JA 86. The officers’

testimony was based partly on hearsay, admitted over defendant’s objection, because, as the district

court observed, the rules of evidence are “somewhat relaxed’ in supervised release revocation

proceedings. Defendant’s counsel cross-examined the police officer witnesses, but defendant offered

no evidence in defense of the violation one charge.

        At the conclusion of the hearing, the district court declined, for the sake of efficiency, to

make a ruling on the violation one charge. The court found that the other four violations were clearly

established by a preponderance of the evidence and, in themselves, warranted revocation of

supervised release. As it proceeded to sentence defendant, the court noted, however, that it had

heard the testimony relating to violation one and deemed it “important as it relates to his answer

mistaken identity and so forth.” Sentencing Tr. p. 68, JA 108. Defendant declined to make

allocution, citing Fifth Amendment concerns. The district court then rejected defendant’s request

to treat his violations as Grade C violations under U.S.S.G. § 7B1.4, and proceeded to sentence him

as though he had committed a Grade A violation. The court found the advisory guidelines range did

not adequately account for defendant’s “horrible record.” Concluding that violations two through

five were “indicative of his total disregard for the rules of this Court, the rules of society,” the court

imposed a sentence of 36 months in prison. Id. at 70, JA 110.

        In defendant’s initial appeal to this court, the parties jointly moved to vacate the sentence

because the district court had erroneously treated the supervised release violations as including a

Grade A violation. On December 19, 2005, a panel of this court granted the motion, vacated the

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original sentence and remanded for resentencing. United States v. Williams, No. 05-1862. The

resentencing occurred on February 15, 2006. The district court treated defendant’s violations as

Grade C violations and determined that an advisory guidelines range of 7 to 13 months applied.

Still, the court imposed the same 36-month sentence. The court explained its reasoning as follows:

        I think this matter goes way outside the heartland of America based upon his record
        and I think he’s a danger to society. I think that based upon his prior record, his
        actions throughout the years have been very assaultive, very aggressive, very – he’s
        a menace to society and to people specifically.

Resentencing Tr. p. 7, JA 118. In evaluating the sentencing factors under 18 U.S.C. § 3553(a), the

court cited the importance of punishment, deterrence, rehabilitation, and protection of the public.

Id. at 7-8, JA 118-19.

        On appeal, defendant contends the district court erroneously relied on evidence of the assault

and kidnaping despite having stopped short of finding such conduct proven by a preponderance of

the evidence. Defendant contends the sentence is unreasonable because the district court either

failed to consider all the relevant sentencing factors or improperly exaggerated the significance of

one factor.

                                                  II

        The revocation of supervised release and sentence of imprisonment will ordinarily be

affirmed if the district court considered the relevant statutory factors and the sentence is not “plainly

unreasonable.” United States v. Kirby, 418 F.3d 621, 625-26 (6th Cir. 2005). In the wake of the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), there is some question

whether we should evaluate the sentence only in terms of whether it is “unreasonable,” rather than


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“plainly unreasonable.” The question has not been resolved in the Sixth Circuit. See Kirby, 418

F.3d at 625, n.3; United States v. Morrow, 2006 WL 3488769 (6th Cir. Dec. 4, 2006) (unpublished);

United States v. Reid, 2006 WL 3314556 (6th Cir. Nov. 15, 2006) (unpublished). Yet, we need not

resolve the question in this case either. For even if defendant’s burden is deemed to be the lighter

of the two, i.e., to show that the sentence is simply unreasonable, as opposed to plainly unreasonable,

it is clear that the burden has not been met.

       Under this lighter standard, the district court’s sentence must be vacated if it is found to be

either procedurally or substantively unreasonable. United States v. Collington, 461 F.3d 805, 808

(6th Cir. 2006). A sentence may be held procedurally unreasonable if the district court (1) did not

appreciate the non-mandatory nature of the guidelines, (2) did not correctly calculate the sentencing

range under the guidelines, or (3) did not consider the 18 U.S.C. § 3553(a) factors. United States

v. Davis, 458 F.3d 491, 495 (6th Cir. 2006). Here, defendant nominally relies on the third ground,

yet the record makes it clear that the district court adequately considered the § 3553 factors,

expressly referring to defendant’s criminal history, as well as the need for punishment, deterrence,

rehabilitation and protection of society. The gravamen of defendant’s challenge goes to substantive

reasonableness.

       Defendant contends the sentence is substantively unreasonable because the district court erred

by relying on evidence of a crime he was not found to have committed and by placing too much

weight on this consideration. But for the district court’s improper consideration of the kidnaping

evidence, defendant insists there is no plausible justification for the dramatic upward variance from

the advisory guidelines range.

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       We agree that there is nothing inherent in defendant’s failure to maintain employment and

failure to timely and truthfully report the fact that he was arrested that would reasonably justify a

prison sentence of 36 months. Yet, though the district judge declined to find defendant responsible

for having committed the charged felony offenses, he was not required to close his eyes to evidence

of the reasons for which defendant failed to timely and truthfully report his arrest. Defendant had

indisputably been arrested for serious felony offenses, kidnaping and assault and battery. The

evidence presented in the supervised release revocation hearing, though inclusive of hearsay,

strongly suggested that defendant had committed the offenses. The evidence was unrefuted. The

evidence helped explain why defendant had been less than forthcoming with his probation officer

and was appropriately deemed probative of defendant’s culpability.

       Hence, as the district court observed in the initial sentencing, although defendant was not

sentenced for having committed kidnaping and assault and battery, the evidence of his involvement

in such offenses was nonetheless “certainly important” in considering the § 3553(a) factors. It was

also reasonable and appropriate for the district court to view this evidence as significant in light of

defendant’s prior convictions for crimes of violence, including three separate batteries in 1998. The

evidence of defendant’s continuing involvement, shortly after his release from federal prison, in

assaultive behavior similar to several batteries he committed shortly before the federal imprisonment,

could hardly be ignored. The district court was obviously, and not unreasonably, alarmed that a 63-

month term of imprisonment appeared not to have resulted in any change in defendant’s violent

manner of dealing with other persons. Due to this intractability, the district court, on resentencing,

expressly viewed defendant as a “menace to society,” from whom the public needed continuing

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protection. These considerations were reasonably viewed as taking defendant “way outside the

heartland” of cases represented by the advisory guidelines range applicable to the violations

defendant was formally found to have committed.

       Defendant objects, contending the alleged kidnaping and assault and battery were never

proven—either in the state court or in the district court. It appears the district court refrained from

finding defendant responsible for violation one only because the evidence presented included

hearsay. In order to obviate the need to hear arguments and make rulings on the extent to which the

hearsay was reliable and admissible, the district court side-stepped violation number one.

       There was no need to do so. It is well-settled that hearsay may be considered in a supervised

release revocation hearing if it is shown to be reliable. Kirby, 418 F.3d at 626-27; United States v.

Donald, 106 F. App’x 429, 432, 2004 WL 1826648, at *3 (6th Cir.) (unpublished). Here, the

hearsay evidence presented to the district court had greater indicia of reliability than that found to

be properly considered in Kirby. We are satisfied the evidence was appropriately considered in

determining defendant’s sentence.

       Further, it is also well-settled that relevant unconvicted conduct, even acquitted conduct, may

be considered in determining a defendant’s sentence. See United States v. Milton, 27 F.3d 203, 208-

09 (6th Cir. 1994) (“This circuit clearly allows district courts to consider acquitted conduct at

sentencing.”); United States v. Harris, 149 F.3d 1185, 1998 WL 344052, at *2 (6th Cir.)

(unpublished) (same). The unrefuted evidence of defendant’s involvement in the alleged kidnaping

and assault and battery of Christal Sugg was certainly relevant to the motivation underlying several



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of defendant’s uncontested violations of the conditions of his supervised release. It was also relevant

to the district court’s required consideration of all the § 3553(a) sentencing factors.

       Having carefully reviewed the transcripts of the supervised release revocation hearing and

both sentencing hearings, we remain unpersuaded that the sentence imposed by the district court is

substantively unreasonable. The district court did not base the sentence on any impermissible factor.

Nor has defendant demonstrated that the district court placed unreasonable weight on any one

sentencing factor. The district court’s upward variance from the advisory guidelines range is

substantial. Yet, in light of defendant’s evident continuing propensity for violence, the variance is

premised on compelling reasons. The district court’s explanation of its reasoning, though succinct,

demonstrates appropriate consideration of defendant’s history and characteristics, the need for just

punishment, the need for deterrence, the need to protect the public, and the need to provide defendant

with correctional treatment. See 18 U.S.C. § 3553(a).

                                                 III

       Accordingly, finding no error, we AFFIRM the judgment of the district court.




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