                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0583n.06

                                            Case No. 13-2251
                                                                                               FILED
                                                                                           Aug 01, 2014
                                                                                    DEBORAH S. HUNT, Clerk
                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                   )
                                                            )
        Plaintiff-Appellee,                                 )
                                                            )         ON APPEAL FROM THE
v.                                                          )         UNITED STATES DISTRICT
                                                            )         COURT FOR THE WESTERN
JAMES DAVID SHIRELY,                                        )         DISTRICT OF MICHIGAN
                                                            )
        Defendant-Appellant.                                )
                                                            )                               OPINION
                                                            )


BEFORE: GIBBONS and McKEAGUE, Circuit Judges, LAWSON, District Judge.*

        McKeague, Circuit Judge. James David Shirley appeals the district court’s decision to

impose a twenty-four month prison sentence on the revocation of his term of supervised release.

We affirm.

                                                     I.

        In January 2008, Shirely pled guilty to bank robbery.               Shirely’s presentence report

included a statement by him explaining how his drug abuse, especially of heroin, had adversely

affected his life and led him to his current predicament. The district court, noting Shirley’s




*
 The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting by
designation.
Case No. 13-2251
United States v. Shirely

chances of rehabilitation, departed downward from the guideline range and sentenced Shirely to

thirty-six months of imprisonment to be followed by thirty-six months of supervised release.

       But once on supervised release, Shirely again began abusing drugs such as marijuana and

Vicodin. This resulted in Shirely violating the conditions of his supervised release five times;

each time the district court imposed progressively harsher sanctions on Shirely, including

electronic monitoring, time spent at the Residential Reentry Center (“RRC”), and incarceration

time within the guidelines range, to no avail. The fifth time, Shirely’s violation involved the use

of heroin, the same drug he was using when he committed the bank robbery. In considering

Shirely’s supervised release violation sentence, the district court reasoned as follows:

               The relevant factors to be considered by the Court in imposing a prison
       sentence and a term of supervised release are the nature and circumstances of the
       offense; and history and characteristics of the defendant. The sentence must afford
       adequate deterrence to criminal conduct; protect the public from further crimes of
       the defendant; provide the defendant with needed medical, educational, and/or
       correctional treatment; the need to avoid unwarranted sentencing disparity among
       similarly situated defendants; any guideline policy statements that pertain; and the
       kinds of sentences available to the Court. . . .

               I do not intend to place Mr. Shirely on supervised release after he
       completes his term of imprisonment that I’m about to impose. An upward
       departure from the advisory guideline range is totally appropriate in this case, at
       this point in time, in this particular case.

                First, the Court notes the Application Note 4 of Guideline 7B1.4, I believe
       it is, indicating that if the original sentence was a result of a downward departure
       on a violation of supervised release, the Court may consider an upward departure.
       And I have considered, and I believe upward departure is warranted for that
       reason. In addition to that, I have four prior supervised release violations in which
       the Court desperately tried to keep Mr. Shirely within the guidelines as well as
       giving him minimal incarceration time -- and incarceration time within the
       guidelines on each occasion.

              The penalty imposed in November of 2010 for use of marijuana was three
       months on home detention. In July of 2011, for use of marijuana and Vicodin. In
       July of 2011, five months in the halfway house. Electronic monitoring pending
       placement in the halfway house. In November, 2011, the use of synthetic


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Case No. 13-2251
United States v. Shirely

       marijuana in violation of the RRC rules two months, with supervised release to
       follow.

                In July of 2012, use of controlled substances and failure to participate in
       treatment; custody ten months; supervised release 23, and now we are back for the
       fifth time.

               There is no doubt that drug addiction has Mr. Shirely by the neck, by the
       throat, but he is -- but his probation officer and this Court have been working
       harder on it than he has. And I and the Court’s resources are at an end for Mr.
       Shirely. And given his prior violations, of which there are four, usually you don’t
       come in front of a federal judge for the fifth time, usually by the second or third
       time you are headed off to a lengthy term of incarceration. But as I said, the Court
       has tried alternative sanctions, intermediate sanctions, sanctions within the
       guidelines, but they apparently have not had any effect on Mr. Shirely because he
       is back again.

               I think the statutory maximum, recognizing that it is a significant
       departure upward is warranted in this case for the factors that I have outlined, that
       is, the four prior supervised release violations, as well as the fact that he was a
       beneficiary of an original downward departure. So for all of these reasons, it’s the
       judgment of the Court the defendant is committed to the custody of the Bureau of
       Prisons for a period of 24 months, with no supervised release to follow.

R. 15, Tr. at 12–18, PageID # 311–14. This appeal followed.

                                                II.

       Shirley argues that the district court’s imposed sentence was substantively unreasonable

and greater than necessary first because there were no grounds for an upward departure, and

second because the district court failed to consider all of the statutory sentencing factors. “A

sentence may be considered substantively unreasonable when the district court selects a sentence

arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing

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

Brinley, 684 F.3d 629, 636 (6th Cir. 2012) (quoting United States v. Webb, 616 F.3d 605, 610

(6th Cir. 2010)). This court reviews sentences imposed following a revocation of supervised

release for an abuse of discretion. United States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009).


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United States v. Shirely

       First, considering the district court’s discussion provided above, we find no abuse of

discretion in the district court’s determination that an upward departure was warranted. As the

district court correctly noted, the sentencing guidelines specifically provide that “[w]here the

original sentence was the result of a downward departure (e.g., as a reward for substantial

assistance), or a charge reduction that resulted in a sentence below the guideline range applicable

to the defendant’s underlying conduct, an upward departure may be warranted.” See U.S.

Sentencing Guidelines Manual § 7B1.4 cmt. n.4 (2011). The district court departed downward in

sentencing Shirely for the bank robbery, and so this guideline squarely applies. Moreover, we

have previously noted the reasonableness of upward departures in the context of repeated

violations of supervised release, as is the case here. See United States v. Wells, 443 F. App’x

997, 998 (6th Cir. 2011).

       Shirely’s assertion that his circumstances were less than “extraordinary” does not change

the analysis. Shirely presents no convincing argument as to why the district court abused its

discretion in this regard, and instead makes much of the fact that the statutory maximum

represents a 600 hundred percent increase from the bottom of the guideline range and a 240

percent increase from the top of the guideline range.          But the statutory maximum would

necessarily involve some factor of increased proportionality when compared to the top and

bottom of the guideline range; this is why it represents an upward departure. His argument is

akin to saying that if the guidelines suggested, for a defendant who had spent a day in jail, an

available sentence was time served—but the district court instead gave the defendant thirty days

of imprisonment, that the sentence was substantively unreasonable on the basis that the

punishment was a 3000 percent increase from the suggested punishment. Stressing the multiplier

simply does not establish that the district court abused its discretion.


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Case No. 13-2251
United States v. Shirely

       Second, again considering the district court’s reasoning above, we find no abuse of

discretion in the district court’s consideration of the relevant statutory factors. At the onset, we

note that in the context of a sentence imposed on a revocation of supervised release, 18 U.S.C.

§ 3583(e), “Modification of Conditions or Revocation,” governs. Section 3583(e) directs courts

to consider only select factors in § 3553(a) in making its assessment, namely, § 3553(a)(1) (the

nature and circumstances of the offense and the history and characteristics of the defendant),

§ 3553(a)(2)(B)    (deterrence   considerations),     § 3553(a)(2)(C)   (protecting   the   public),

§ 3553(a)(2)(D) (effective treatment for the defendant), § 3553(a)(4) (the sentencing range),

§ 3553(a)(5) (any pertinent policy statements), § 3553(a)(6) (sentencing disparities), and

§ 3553(a)(7) (restitution). A review of the district court’s discussion above clearly indicates that

the district court did in fact consider the factors relevant to Shirley’s case in making its

assessment. The district court focused on Shirely’s history of drug abuse and the repeated failure

of other methods to keep him from drugs as well as the relevant guidelines policy comment.

Factors such as restitution are simply not relevant here. Shirely argues that the district court did

not consider some of the relevant factors. However, the record shows that the district court

identified each of the factors cataloged in § 3553(a), and although there is not an extended

discussion of each of them, it is apparent that there were considered. That is sufficient. See

United States v. Morris, 448 F.3d 929, 932 (6th Cir. 2006) (noting that while a district court must

articulate its reasoning, it need not “explicitly reference” every factor in its review). Moreover,

Shirely’s contention that the district court overemphasized his history of drug use is without

merit. In light of the fact that heroin use led him to commit bank robbery in the first place as

well as his repeated violations, it is simply not the case that the district court’s reliance on this

consideration was an abuse of discretion. See United States v. Bridgewater, 479 F.3d 439, 442


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United States v. Shirely

(6th Cir. 2007) (“Not all [factors] are important in every sentencing; often one or two prevail,

while others pale.”).

                                              III.

       We find no abuse of discretion in the district court’s sentence imposed on the revocation

of Shirely’s term of supervised release. The judgment of the district court is AFFIRMED.




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