              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0255n.06

                                        No. 10-4456

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                                 Apr 20, 2011
UNITED STATES OF AMERICA,                                                   LEONARD GREEN, Clerk

       Plaintiff-Appellee,

              v.                                               On Appeal from the United
                                                               States District Court for the
ACAMIE S. SALTER,                                              Southern District of Ohio at
                                                               Columbus
       Defendant-Appellant.


                                                         /

Before:       GUY, COOK, and STRANCH, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.           Defendant Acamie S. Salter was initially

sentenced to probation for crimes involving counterfeit obligations. After she violated the

terms of her probation, the district court revoked Salter’s probation and sentenced her to a

period of incarceration followed by supervised release.        Salter appeals that sentence,

asserting the district court’s failure to consider the United States Sentencing Guidelines and

18 U.S.C. § 3553(a) factors was unreasonable. We affirm.

                                              I.

       In 2007, Salter pleaded guilty to multiple counts of uttering counterfeit obligations of

the United States and dealing in such obligations, in violation of 18 U.S.C. §§ 472 & 473.
No. 10-4456                                                                                                2

Salter received a sentence of three years of probation. She was required to serve four months

of the sentence in home confinement.

        Nearly three years later, Salter’s probation officer filed a Petition for Warrant or

Summons, alleging that Salter had violated several terms of her probation.1 When Salter

appeared before the district court in November 2010, she did not contest the alleged

violations. Using the United States Sentencing Guidelines Chapter Seven Policy Statements,

the district court determined that all of Salter’s violations were Grade C violations, which in

combination with a criminal history category of I subjected Salter to a three- to nine-month

sentencing range. Despite defense counsel’s request for no further sanction, the district court

sentenced Salter to 90 days of incarceration, followed by one year of supervised release. In

response to the district court’s question whether there were any objections to the sentence,

Salter’s counsel stated there were none. This timely appeal followed.

                                                    II.

        When a defendant sentenced to probation violates its terms, the district court may

continue probation, with or without modifications, or revoke the probation and resentence

the defendant, so long as the sentence is no greater than the maximum for the original

offense. 18 U.S.C. § 3565(a). In this case, the district court chose to revoke probation and

sentence Salter as described above. We review the sentence imposed by the district court for




        1
         It was alleged that Salter went to California without permission, where she was charged with a
felony, and that she failed to inform her probation officer about the contact with law enforcement or the new
charge in California, for which she was subject to a warrant. She was also alleged to have failed to provide
a DNA sample.
No. 10-4456                                                                                     3

reasonableness, just as we would review a sentence imposed following the underlying

conviction. See United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007).




       In this appeal, Salter objects only to the procedural reasonableness of her sentence.

Salter asserts that the district court committed procedural error by (1) failing to fully consider

the United States Sentencing Guidelines, and (2) failing to consider any of the 18 U.S.C. §

3553(a) factors. Salter concedes that although she was given the appropriate opportunity as

prescribed by United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004), she did not

object to the district court’s pronouncement of sentence, and that our review is for plain

error. United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc); United States

v. Lalonde, 509 F.3d 750, 757 (6th Cir. 2007). Plain error review affords more deference to

the district court’s determination than does a review for abuse of discretion. It requires that

Salter demonstrate error that (1) is obvious or clear; (2) that affected her substantial rights;

and (3) that affected the fairness, integrity, or public reputation of the judicial proceedings.

Vonner at 386.

       In her first claim, Salter contends that although the district court stated that the range

under the Sentencing Guidelines was three to nine months, it never again “addressed” the

Guidelines, and failed to “evaluate what the imposition of a sentence of imprisonment

required under the Guidelines.” Specifically, Salter points to § 7B1.3 of the Sentencing

Guidelines, entitled “Revocation of Probation or Supervised Release (Policy Statement).”

A subsection of that title provides:
No. 10-4456                                                                                     4

       In the case of a Grade B or C violation- (1) Where the minimum term of
       imprisonment determined under § 7B1.4 (Term of Imprisonment) is at least
       one month but not more than six months, the minimum term may be satisfied
       by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that
       includes a term of supervised release with a condition that substitutes
       community confinement or home detention according to the schedule in §
       5C1.1(e) for any portion of the minimum term.

U.S.S.G. § 7B1.3(c)(1). Salter appears to be arguing that the district court failed to follow

the Guidelines here, when it imposed a term of imprisonment as well as a term of supervised

release. For this reason, she asserts, the sentence is procedurally unreasonable.

       Salter’s claim is without merit. To the extent she is arguing that the district court

erred by sentencing her to a term that included both a term of incarceration and a period of

supervised release, she is incorrect. U.S.S.G. § 7B1.3 (c)(1) states only that when the

minimum sentence for a probation or supervised release violation is more than one but no

more than six months, the district court may substitute community confinement or home

detention for all—or a portion—of that sentence. As the Seventh Circuit has opined, this

Guideline “. . . does not mean that supervised release may not be imposed unless it is done

as part of a plan to substitute community confinement or home detention for part of a

defendant’s prison term.” United States v. Adams, 240 F. App’x 728, 731 (7th Cir. 2007).

Because the district court did not misapply U.S.S.G. § 7B1.3(c)(1), we find no error in the

court’s failure to substitute home detention for any portion of the term imposed.

       Salter’s next assertion, that the district court failed to calculate or consider any of the

18 U.S.C. § 3553(a) factors, is equally unavailing. After the district court calculated the

guideline range, counsel for Salter described Salter’s violations, and asked that the district
No. 10-4456                                                                                  5

court terminate Salter’s supervision. The district court’s immediate reaction was to state that

rewarding Salter with no punishment would be inappropriate under the circumstances. The

district court confirmed with counsel that the new charges in California were felony charges,

and stated its opinion that the probation officer’s recommendation was generous to Salter.

Following the district court’s pronouncement of sentence, Salter requested a sentence of

house arrest so that she could preserve her employment and living situation. The district

court entered into the following exchange with Salter:

              THE COURT: Ms. Salter, that’s the same type of argument I had when
       I put you on probation, and you screwed it up. That’s why I put you on
       probation. You had employment in a nursing home back then. You had a
       place to live. I don’t recall the argument with regard to the house. So, how
       many times do you want to make that argument to me? It’s not going to work
       anymore. I’m sorry.

              THE DEFENDANT: Please just give me a chance, Your Honor.

              THE COURT: I know -- I’d love to give you a chance.

              THE DEFENDANT: Please.

              THE COURT: But I think I did. I actually did back [at the time of the
       original sentence]. And, you know, uttering counterfeit obligations is one
       thing, but then we get into similar types of fraudulent activities out in
       California.

               No, Ms. Salter, I have sympathy for you. I really do. I have sympathy
       for the position you find yourself in, and I feel sorry for you, but I don’t feel
       sorry enough to say no jail time at all. That, to me, is no penalty at all for
       violating what I told you to do and violating the law.

       Both the district court’s earlier commentary as well as this exchange with the

defendant clearly demonstrate the district court’s consideration of Salter’s “history” and

“circumstances,” the need for the sentence “to promote respect for the law,” and the “kinds
No. 10-4456                                                                                 6

of sentences available.” See 18 U.S.C. § 3553(a)(1), (a)(2)(A), & (a)(3). While the district

court may not have made “explicit reference” to the listed factors in § 3553(a), no such

“ritual incantation” is required. See United States v. Polihonki, 543 F.3d 318, 324 (6th Cir.

2008). No error, plain or otherwise, was committed by the district court in its fashioning of

a reasonable sentence under the circumstances presented here.

       The district court is AFFIRMED.
