                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                         Case No. 18-5092

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  May 30, 2018
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE EASTERN DISTRICT OF
DAVID SHROPSHIRE,                                    )       TENNESSEE
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )


BEFORE: SUTTON, McKEAGUE, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. After successfully petitioning for his

release from prison under 28 U.S.C. § 2255 post-Johnson v. United States, 135 S. Ct. 2551 (2015),

Defendant-Appellant David Shropshire tested positive for cocaine five times in the first six months

of his supervised release and failed to attend another scheduled drug test. In response, the district

court sentenced him to five months in prison, followed by two years of supervised release.

Shropshire contends that the district court abused its discretion and imposed a procedurally

unreasonable sentence by failing to consider the availability of substance abuse treatment

programs and a both procedurally and substantively unreasonable sentence by failing to credit the

alleged excess time he served on his original convictions. For the reasons that follow, we

AFFIRM.
Case No. 18-5092, United States v. Shropshire




                                                I.

       In 2002, Shropshire pleaded guilty to being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(e), and Hobbs Act robbery, in violation of 18 U.S.C. § 1951.

Due to previous convictions for first-degree murder, aggravated assault, and attempted carjacking,

Shropshire was sentenced under the Armed Career Criminal Act (“ACCA”).                   As such,

Shropshire’s Guideline range was 188 to 235 months’ imprisonment.              Under the ACCA,

Shropshire also faced a fifteen-year mandatory minimum for the firearms offense. See 18 U.S.C.

§ 924(e)(1). The district court sentenced him to 211 months’ imprisonment followed by five years’

supervised release.

       In 2008, Shropshire filed an unsuccessful 28 U.S.C. § 2255 motion. In 2016, after Johnson,

this Court authorized Shropshire to file a successive § 2255 motion. In it, Shropshire argued that

he no longer qualified as an armed career criminal due to the invalidation of the residual clause.

The district court then held that Shropshire had been subject to ACCA penalties due to his

attempted carjacking conviction, which was a predicate offense under the now-invalid residual

clause. The district court noted that Shropshire had served at least 170 months in prison, that his

non-ACCA guideline range was 151 to 188 months, and reduced his sentence to “time served.”

The court also imposed the non-ACCA statutory maximum of three years’ supervised release and

denied Shropshire’s request to have his supervised release terminated. The district court entered

an amended judgment imposing a sentence of “time served.”

       Shropshire’s term of supervised release began on April 20, 2017. Shortly after, Shropshire

tested positive for cocaine and admitted to using on three separate occasions between May 30,

2017 and August 4, 2017. As a result, Shropshire agreed to participate in mental health treatment



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Case No. 18-5092, United States v. Shropshire


and serve twelve days in custody at a local detention facility. His probation officer also enrolled

Shropshire in a substance abuse treatment program as of September 1, 2017. In October 2017,

however, Shropshire tested positive for cocaine twice in one week. He then failed to appear for a

drug test and his probation officer petitioned to revoke Shropshire’s supervised release. Shropshire

was detained pending resolution of his revocation.

       Prior to the revocation hearing, Shropshire filed a pro se motion seeking to have his

supervised release terminated on the basis that he had already been incarcerated longer than the

combined non-ACCA statutory maximums for custody and supervised release. Shropshire argued

that his “time served” sentence reflected a sentence of 120 months and that he had effectively

served eighty months longer than that—a calculation that included good behavior credit.

Shropshire’s counsel then filed a similar motion, also noting that the United States Sentencing

Commission Guidelines (“Guidelines”) instructed the district court to consider the availability of

substance abuse programs as an alternative to revocation of supervised release and imprisonment.

       The district court held a revocation hearing on January 12, 2018. Shropshire admitted that

he had violated the terms of his supervised release but argued that his violations were singular in

nature—cocaine abuse—and that he had already overserved his ACCA sentence by “about six

years.” RE 241, PageID #962, 965-68. Shropshire requested that any sentence imposed be less

than one year of supervised release and that any detention be in an inpatient drug treatment

program. The government responded that Shropshire had not overserved any sentence because his

Hobbs Act conviction carried a maximum sentence of twenty years, and that Shropshire had

already declined treatment and denied drug use.         The government requested six months’

imprisonment, followed by an additional two years of supervised release.




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Case No. 18-5092, United States v. Shropshire


       After providing Shropshire an opportunity to be heard, the district court addressed several

of the 18 U.S.C. § 3553(a) factors and met Shropshire’s arguments that he should be allowed to

serve any sentence in a drug treatment facility and that he had already served excess time. The

district court acknowledged that the “time served” sentence was less clear than intended and

promised to clarify Shropshire’s § 2255 relief. The court then revoked Shropshire’s supervised

release and sentenced him to five months’ imprisonment, followed by two years of supervised

release. On January 18, 2018, the district court entered a memorandum and order regarding

Shropshire’s pro se expedited motion for revocation hearing of supervised release and motion for

termination of supervised release in which the court—as promised—clarified its § 2255 relief, as

well as its amended judgment. This timely appeal followed.

                                                 II.

       “We review a district court’s decision to revoke supervised release for abuse of discretion,

United States v. Cofield, 233 F.3d 405, 406 (6th Cir. 2000), giving fresh review to its legal

conclusions, United States v. Crace, 207 F.3d 833, 835 (6th Cir. 2000), and clear-error review to

its fact findings, United States v. Carter, 463 F.3d 526, 528 (6th Cir. 2006).” United States v.

Kontrol, 554 F.3d 1089, 1091-92 (6th Cir. 2009). We review sentences imposed for supervised

release violations “under the same abuse of discretion standard that we apply to sentences imposed

following conviction.” Id. at 1092 (quoting United States v. Bolds, 511 F.3d 568, 572-73, 578 (6th

Cir. 2007)) (quotation marks omitted). We will overturn a sentence only if procedurally or

substantively unreasonable. Kontrol, 554 F.3d at 1092 (citation omitted). A sentence may be

procedurally unreasonable if it entails a “significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to



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Case No. 18-5092, United States v. Shropshire


adequately explain the chosen sentence—including an explanation for any deviation from the

Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). If procedurally sound, we “then

consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard . . . tak[ing] into account the totality of the circumstances, including the extent of any

variance from the Guidelines range.” Id.

                                                 A.

       Shropshire first argues that his five-month prison sentence was procedurally unreasonable

because the district court failed to consider whether the availability of appropriate substance abuse

treatment programs warranted or allowed a lesser or modified sentence. Specifically, Shropshire

argues that the record fails to show that the court considered drug treatment or some other sanction

less than incarceration. Generally, when a defendant possesses a controlled substance contrary to

the conditions of his supervised release, the law provides that “the court shall revoke the term of

supervised release and require the defendant to serve a term of imprisonment[.]” 18 U.S.C.

§ 3583(g) (emphasis added); U.S.S.G. § 7B1.4 cmt. n. 5 (2007). The use of a controlled substance

constitutes possession under § 3583(g). Crace, 207 F.3d at 836.

       But § 3583 provides for an exception to revocation: “The court shall consider whether the

availability of appropriate substance abuse treatment programs, or an individual’s current or past

participation in such programs, warrants an exception in accordance with United States Sentencing

Commission guidelines from the rule of section 3583(g) when considering any action against a

defendant who fails a drug test.” 18 U.S.C. § 3583(d). Chapter Seven of the Guidelines also

states: “In the case of a defendant who fails a drug test, the court shall consider whether the

availability of appropriate substance abuse programs, or a defendant’s current or past participation

in such programs, warrants an exception from the requirement of mandatory revocation and



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Case No. 18-5092, United States v. Shropshire


imprisonment under 18 U.S.C. §§ 3565(b) and 3583(g).” U.S.S.G. § 7B1.4 cmt. n. 6 (2007). This

allows the district court to use its own discretion to decide whether to revoke the defendant’s

supervised release. Crace, 207 F.3d at 837.

       The record is clear that Shropshire requested drug treatment in lieu of imprisonment. So,

at the outset, we presume the district court to have considered all the evidence and arguments

presented, including this request and the availability of those remedies. United States v. Gale,

468 F.3d 929, 941 (6th Cir. 2006) (“[W]ithout some affirmative indication in the record to the

contrary (apart from the sentence imposed), we presume that a district court has reviewed the

evidence provided to it.”). The record is also clear that Shropshire initially declined drug

treatment, that he abused cocaine even after declining such treatment, and that he continued to use

after enrolling in a treatment program in September 2017. As the government aptly argues, the

court could reasonably conclude that “counseling alone was not enough to deter [Shropshire] from

using drugs, and that a sentence of incarceration was warranted.” United States v. Williams, 333

F. App’x 63, 70 (6th Cir. 2009); see also United States v. Metcalf, 292 F. App’x 447, 450 (6th Cir.

2008) (finding imprisonment sentence, rather than treatment, procedurally reasonable where

“substance abuse treatment had not worked in the past” and where the sentencing court was aware

and acknowledged the defendant’s history of drug use). Moreover, the probation office had

already allowed Shropshire to enroll in mental health treatment and to serve twelve days in a local

detention facility rather than having his supervised release revoked—a fact of which the district

court was aware. The record also shows that the district court considered his request to serve his

sentence at a halfway house or drug treatment facility, denying the request but finding that there

were resources that would be available to him both before and after his sentence. When Shropshire

again asked why he could not attend in-patient rehab immediately, the court emphatically stated



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Case No. 18-5092, United States v. Shropshire


that Shropshire violated an order of the court and punishment was required, whether or not drug

addiction was involved. Though the court acknowledged that “the best way to rehabilitate you is

not to . . . incarcerate you . . . Totally agree 110 percent,” RE 241, PageID #992, it nonetheless

determined that Shropshire’s continued violation of court orders was best addressed with the

sentence imposed.

       “[W]e do not require magic words in the record of the sentencing hearing indicating that

substance abuse treatment was considered in order to uphold the district court’s prison sentence.”

Crace, 207 F.3d at 836. Here, the court adequately considered substance abuse treatment as an

alternative under § 3583(d), and sufficiently explained its rationale for imposing a sentence of

imprisonment instead.

                                                B.

       Shropshire next argues that the district court failed to clarify its imprecise language in

granting his § 2255 motion and thus levied a procedurally and substantively unreasonable term of

supervised release.

       This argument is premised on Shropshire’s contention that, after Johnson and his

successful § 2255 motion, he has served excess time that should have been considered when

determining his current sentence. This argument fails for several reasons. First, the amended

judgment is clear: Shropshire was resentenced for his §§ 922(g)(1) and 922(e) and § 1951

convictions to time served. He was not, however, sentenced to 120 months (the non-ACCA

statutory maximum applicable to his felon-in-possession conviction), or any amount of

incarceration less than what he had already served. Thus, no excess time was served. While the

district court calculated Shropshire’s guideline range for his §§ 922(g) and 924(e) convictions and

noted the imprisonment range was now confined to 120 months—an amount he had already



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Case No. 18-5092, United States v. Shropshire


exceeded—it later clarified, firmly, that Shropshire’s statutory maximum for Hobbs Act robbery

was twenty years. Moreover—despite Shropshire’s contrary contention on appeal (Appellant Br.

at 13)—the district court clarified that Shropshire “had not served or accumulated good-time credit

beyond his statutory maximum when the [district court] granted § 2255 relief.” RE 231, p.3.

       Second, even if Shropshire had exceeded the statutory maximum for his crimes, and even

if the district court had found that he served excess time, Shropshire provides no legal authority

supporting the proposition that a district court can or must credit excess time served when

determining supervised release. Cf. United States v. Johnson, 529 U.S. 53, 59 (2000) (“The

objectives of supervised release would be unfulfilled if excess prison time were to offset and

reduce terms of supervised release. . . . Supervised release fulfills rehabilitative ends, distinct from

those served by incarceration.”).

       Finally, the district court’s memorandum and order on Shropshire’s motion for termination

of supervised release and motion for revocation hearing of supervised release show that it did

exercise discretion. While Shropshire argues that “the failure to exercise discretion is itself an

abuse of discretion,” (Appellant’s Br. at 15), the fulsome order shows that the court understood

Shropshire’s argument, found it without both factual and legal merit, and consciously chose not to

alter Shropshire’s sentence despite his argument. In sum, the district court did not abuse its

discretion in selecting Shropshire’s revocation sentence. See United States v. Hammonds, 468 F.

App’x 593, 599 (6th Cir. 2012) (“The issue is not whether some other, lesser sentence . . . would

have been reasonable; rather, it is whether the . . . sentence [defendant] actually received was

reasonable.”).




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Case No. 18-5092, United States v. Shropshire


                                                III.

       Shropshire has failed to demonstrate that the district court’s revocation sentence was either

procedurally or substantively unreasonable. We AFFIRM the judgment of the district court.




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