                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0361n.06
                              Filed: May 6, 2005

                                            No. 04-1965

                           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
JASON MICHAEL PHILLIPS,                           )    WESTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellant.                       )




       Before: MARTIN, COOK, and LAY,* Circuit Judges.


       PER CURIAM. Jason Michael Phillips appeals his sentence for violating the conditions of

his supervised release. We affirm.


                                                  I


       Phillips pleaded guilty to violating two conditions of his supervised release: (1) failing to

participate in substance-abuse counseling, a Grade C violation, and (2) testing positive for marijuana

and cocaine use, a Grade B violation. The United States Sentencing Guidelines recommended a

range from eight to fourteen months for those violations, U.S. Sentencing Guidelines Manual §



       *
        The Honorable Donald P. Lay, Circuit Judge for the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
No. 04-1965
United States v. Phillips

7B1.4(a) (2003), but the probation office recommended that the district court sentence Phillips to

eighteen months to make Phillips eligible for the Federal Bureau of Prisons’ 500-hour drug-

treatment program. The district court ultimately sentenced Phillips to eighteen months, though the

sentence did not specifically include a recommendation for the drug-treatment program.


                                                   II


                                       A. Standard of Review


       This court reviews a district court’s actions in supervised release cases for abuse of

discretion. United States v. Webb, 30 F.3d 687, 688 (6th Cir. 1994). We will affirm a district

court’s sentence provided the court considered the relevant statutory factors and imposed a sentence

that is not plainly unreasonable. United States v. McClellan, 164 F.3d 308, 309 (6th Cir. 1999).


                        B. The District Court Did Not Abuse Its Discretion


                     1. The Court Considered the Relevant Statutory Factors


       Title 18 U.S.C. § 3583(e) provides that, before imposing a prison sentence for violation of

supervised release, a district court must consider “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).” Those sections require taking into

account:


       (1) the nature and circumstances of the offense and the history and characteristics of
       the defendant; (2) the need for the sentence imposed . . . (B) to afford adequate

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No. 04-1965
United States v. Phillips

       deterrence to criminal conduct; (C) to protect the public from further crimes of the
       defendant; and (D) to provide the defendant with needed educational or vocational
       training, medical care, or other correctional treatment in the most effective manner
       . . . (4) the kinds of sentence and the sentencing range established . . . (5) any
       pertinent policy statement issued by the sentencing commission . . . (6) the need to
       avoid unwarranted sentence disparities among defendants with similar records who
       have been found guilty of similar conduct; and (7) the need to provide restitution to
       any victims of the offense.


       The district court here considered those factors, noting Phillips’s history of drug dependency

and the need to deter Phillips from further drug offenses.         Affording Phillips educational

opportunities ranked among the court’s principal concerns: “I’m going to again require that you

receive educational opportunity because I want you to spend that time reading. I want you to spend

the time studying there.” The court referred to the Amended Supervised Release Violation Report,

which states that the recommended Guidelines sentence is eight to fourteen months. That reference

permits this court to presume that the district court considered the recommended Guidelines range.

McClellan, 164 F.3d at 310.


                            2. The Sentence Is Not Plainly Unreasonable


       Where a district court imposes a sentence higher than the recommended Guidelines range,

it “must provide at least an indication of its reasons for imposing a sentence that exceeded the

recommended sentencing range.” Id. Without tying the drug-treatment program to the eighteen-

month sentence, Phillips argues, the district court failed to indicate any reason for exceeding the

recommended sentencing range.




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United States v. Phillips

        The district court did, however, indirectly acknowledge Phillips’s eligibility for the drug-

treatment program, and produced nine pages of sentencing transcript discussing Phillips’s unique

circumstances and needs. Phillips asked to be placed at the federal prison in Milan, Michigan, so

he could be near his mother. Phillips’s attorney told the court: “Milan does have the 500-hour

program.” The district court then recommended that the Bureau of Prisons place Phillips at Milan.

And even if the district court failed entirely to consider Phillips’s eligibility for the drug-treatment

program, the other factors the district court considered foreclose our finding Phillips’s sentence

plainly unreasonable.


                                                  III


        Finding no abuse of discretion, we affirm Phillips’s sentence for violating the conditions of

his supervised release.




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