                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0201n.06

                                          No. 18-3842

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
 UNITED STATES OF AMERICA,                          )                        Apr 23, 2019
                                                    )                   DEBORAH S. HUNT, Clerk
 Plaintiff-Appellee,                                )
                                                    )      ON APPEAL FROM THE
 v.                                                 )      UNITED STATES DISTRICT
                                                    )      COURT FOR THE NORTHERN
 SEAN A. MIHALKO,                                   )      DISTRICT OF OHIO
                                                    )
 Defendant-Appellant.                               )
                                                    )


Before: COOK, McKEAGUE, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.

       Defendant-Appellant Sean A. Mihalko (“Mihalko”) challenges the reasonableness of the

sentence imposed by the district court after he admitted to violating his supervised-release

conditions. Mihalko contends that his sentence is procedurally unreasonable because the district

court failed to consider all the sentencing factors, and that his sentence is substantively

unreasonable because it is greater than necessary to accomplish the purposes of 18 U.S.C. § 3553.

Because the district court did not abuse its discretion, we AFFIRM.

                                               I.

                                               A.

       After Mihalko pled guilty to conspiracy to commit wire fraud in violation of 18 U.S.C.

§§ 1343 and 1349, the district court sentenced him to 26 months’ imprisonment, followed by a

three-year term of supervised release. Mihalko began his term of supervised release on January 5,
No. 18-3842, United States v. Mihalko


2018.   On April 27, 2018, Mihalko’s probation officer submitted a report alleging the following

supervised-release violations:

        1. The offender did not attend drug treatment as instructed - He did not attend the
        individual counseling on the following dates: March 7, 9, 16, 21, April 4, 11, 13,
        and 25, 2018.
        2. The offender did not attend drug testing - He did not report for Code-a-Phone
        on the following dates: March 4, 11, and 25, 2018.
        3. Illicit Drug Use - The offender tested positive of [sic] marijuana on March 7,
        2018, which was confirmed by Alere Toxicology on March 12, 2018.
        4. Whereabouts Unknown - The offender left the Open Door Program with all his
        belongings on Sunday April 22, 2018. He also failed to report for his
        employment since Monday, April 23, 2018.

(R. 50, PID 293 (quoting R. 39).) A warrant was issued for Mihalko’s arrest.

        Mihalko was arrested in Philadelphia, Pennsylvania two months later. The probation

officer filed a supplemental information report, stating that Mihalko had been arrested while

“shooting up heroin at a bus stop,” and that he had been verbally aggressive and threatening during

his arrest, threatening “suicide by cop” the next time officers came to arrest him. (R. 49, PID 291.)

According to the report, the arresting officers took Mihalko to a hospital to treat his infected drug-

injection sites, and he continued to act aggressively.

                                                  B.

        Mihalko admitted before a magistrate judge that he committed the four supervised-release

violations alleged in the April 27, 2018, violation report. The magistrate judge recommended that

the district court find that Mihalko violated the terms of his supervised release. The parties then

had a hearing before the district court. The district court first reviewed the initial violation report

from April 27, 2018, and the supplemental report filed after Mihalko’s arrest. Neither party

objected to the magistrate judge’s recommendation, and the district court concluded that Mihalko

had violated the terms of his supervised release. The district court next confirmed that the advisory


                                                  2
No. 18-3842, United States v. Mihalko


range under the United States Sentencing Guidelines (“Guidelines”) for Mihalko’s offense was 8

to 14 months and the maximum sentence the court could impose was 24 months.

       The court then addressed Mihalko, noting that he had been on supervised release only for

a short time and had not been “restrained by its requirements.” (R. 58, PID 317.) The court also

noted Mihalko’s desire to reside in Pennsylvania rather than Ohio. Mihalko interrupted, stating

that he was not from Ohio. The district court warned Mihalko not to interrupt again and reminded

him that his request to transfer supervision to Pennsylvania was denied because of his failure to

comply with the supervision conditions. The court explained that since the denial of the transfer

request, Mihalko had “gone out of [his] way . . . to be a danger to [himself] and to the public.” (Id.

at PID 318.)

       The court invited the government to speak, and the government noted Mihalko’s threat to

law enforcement and recommended a sentence at the “highest end of the guidelines.” (Id. at PID

318-19.) In response, the district court questioned whether any within-Guidelines sentence would

be appropriate due to Mihalko’s refusal to be supervised and disrespect toward court officers. The

government agreed with the district court’s analysis and deferred to its discretion to determine the

proper length of Mihalko’s sentence.

       The court then invited Mihalko’s counsel to address the court. Mihalko’s counsel noted

that Mihalko suffered from anxiety and stress that was due in part from residing in Ohio. The

counsel also identified some of Mihalko’s positive accomplishments during supervision, including

Mihalko’s completion of a residential program and his two jobs. Counsel next asserted that some

of Mihalko’s behavior was due to his refusal to take medication that he claimed had adverse effects

on him. Mihalko’s counsel maintained that Mihalko was not a danger to the public, and asked the

court to impose a within-Guidelines sentence under these circumstances. In response, the district



                                                  3
No. 18-3842, United States v. Mihalko


court questioned the statement that Mihalko was not a danger, noting Mihalko’s aggressive

behavior and “suicide by cop” threat during his arrest. (Id. at PID 323-24.) Mihalko then spoke

again, claiming that he did not make the “suicide by cop” statement. (Id. at PID 324.) The court

again warned him against making statements out of turn and noted that the supplemental report

stated that Mihalko made that statement.

       The court then allowed Mihalko to address the court. Mihalko again denied that he

threatened suicide by cop. Mihalko claimed that he only became aggressive toward the arresting

officers after an officer called him a “junkie.” (Id. at PID 325.) The district court asked Mihalko

why he previously called a drug counselor a “bitch.” (Id. at PID 326.) Mihalko said he wanted

the counselor to give his phone back and that was just the way he talked after being incarcerated

for much of the previous 10 years. Mihalko explained that he suffered from anxiety from living

in Ohio and wanted only to go back home to Pennsylvania. He also complained that the probation

department required him to attend drug testing and treatment far too often, and it interfered with

his work. Mihalko also noted that the only drug test he failed was for marijuana.

       After Mihalko concluded, the district court responded that it was unmoved by Mihalko’s

reasons for his behavior toward court officers and his refusal to be supervised. The court then

concluded that the Guidelines did not adequately account for Mihalko’s behavior and that an

above-Guidelines sentence of 20 months’ imprisonment was needed to protect the public, deter

Mihalko, and promote respect for the law:

       [W]hen I look at especially the 3553(a) factors and the policy statements and I
       measure all of that against the recommendation in the United States Sentencing
       Guidelines, the guidelines does not account for your behavior. Your behavior has
       been willful. It’s been defiant. It’s placed you in the position of being a danger to
       society.
       I think the only hope I have of deterring you and anyone else who believes that
       violating supervision is a way to get what you want -- which is back to


                                                4
No. 18-3842, United States v. Mihalko


       Pennsylvania, which was never going to happen without Pennsylvania accepting
       you, and it’s really a pity you didn’t understand that.
       But when I consider all of those things, I find that the guidelines is not sufficient.
       The maximum term I can impose is 24 months. And because of you, Mr. Ranftl
       [Mihalko’s counsel], because you did make some inroads on my thinking, I hereby
       impose a term of incarceration by way of a variance upwards from the high end of
       the United States Sentencing Guidelines of 20 months you’ll serve, without credit
       for time already served. And that’s because of your disrespect to the jailers and the
       marshals and the probation officer and the drug counselor.

(Id. at PID 328-29.)

       The district court subsequently entered an order revoking Mihalko’s term of supervised

release and sentencing him to 20 months’ imprisonment.

                                                II.

       We review supervised release revocation sentences “under a deferential abuse of discretion

standard for reasonableness.” United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007) (internal

quotation marks omitted). Thus, “we may overturn a sentence only if it is procedurally or

substantively unreasonable.” United States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009). If the

sentence is procedurally reasonable, we consider if it is substantively reasonable. See id.

                                                A.

       A district court commits a procedural error and abuses its discretion by “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

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). “[T]his court does not require

‘ritual incantation’ of § 3553 [factors] to affirm a sentence.” United States v. Denny, 653 F.3d

415, 424 (6th Cir. 2011).




                                                 5
No. 18-3842, United States v. Mihalko


       Mihalko challenges the district court’s consideration and weighing of the sentencing

factors, contending that the district court “unreasonably dwelled on [Mihalko’s] perceived

demeanor and attitude and failed to adequately consider other factors.” (Appellant’s Br. at 9.) The

record does not support Mihalko’s assertion that the district court did not adequately consider the

§ 3553 factors. The district court considered Mihalko’s history and characteristics, including

Mihalko’s aggressive and threatening conduct toward arresting officers and continued refusal to

comply with the conditions of supervised release. The court further considered the reasons offered

by Mihalko and his counsel for his history and actions. Although the court was not convinced by

Mihalko’s explanation for his language toward the drug counselor, the court noted that Mihalko’s

counsel’s argument did make “inroads” on its thinking. (R. 58, PID 329.)

       The district court also considered the need to deter Mihalko and promote respect for the

rule of law. The district court found that Mihalko’s behavior had been “willful” and “defiant” and

noted the need to “deter[] [Mihalko] and anyone else who believes violating supervision is a way

to get what you want . . . .” (Id. at PID 328.) The district court also discussed at length the need

to protect Mihalko and the public. The district court explained that after Mihalko’s request to

transfer to Pennsylvania was denied, he had “gone out of [his] way to be a danger to [himself] and

the public.” (Id. at PID 318.) The district court noted Mihalko’s threat that the officers’ next

attempt to arrest him would result in a “suicide by cop.” (Id. at PID 324.) Although Mihalko

denied making the statement, he did not request an evidentiary hearing, and the district court did

not clearly err in concluding that the information in the supervised-release violation report was

credible. The district court also cited Mihalko’s aggressive behavior toward the arresting officers,

actions that Mihalko did not deny but tried to justify. The district court further noted Mihalko’s

refusal to abide by supervised-release conditions made him a danger to himself and the public.



                                                 6
No. 18-3842, United States v. Mihalko


       Mihalko contends that the district court failed to adequately consider the positive steps he

had taken and his attempts to comply with the terms of supervised release. However, the court

considered argument from Mihalko’s counsel highlighting that Mihalko completed a residential

program, entered a halfway house, and found employment. The court later stated that Mihalko’s

counsel’s argument had affected its sentencing decision.

       Because the district court adequately considered the sentencing factors, the sentence it

imposed was not procedurally unreasonable.

                                                 B.

       “The essence of a substantive-reasonableness claim is whether the length of the sentence

is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United

States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). We consider the totality of the

circumstances to determine if a sentence is substantive reasonable. Bolds, 511 F.3d at 581.

Although a within-Guidelines sentence is entitled to a presumption of reasonableness, we do “not

[ ] apply a presumption of unreasonableness to outside-Guidelines sentences.” Id. “In general, we

must give ‘due deference’ to the district court's conclusion that the sentence imposed is warranted

by the § 3553(a) factors.” Id.

       Mihalko asserts that his sentence is substantively unreasonable because the district court

“gave an unreasonable amount of weight to [his] demeanor and perceived attitude to the exclusion

of his attempts to comply with the conditions of supervised release.” (Appellant’s Br. at 12.)

Mihalko also points to the non-violent nature of both his original offense and admitted supervised-

release violations.

       The district court’s above-Guidelines sentence was not an abuse of discretion. The court

determined that an above-Guidelines range was necessary to deter Mihalko and protect the public,



                                                 7
No. 18-3842, United States v. Mihalko


considering Mihalko’s refusal to abide by the terms of his supervised release and violent threats

and conduct during his arrest.      In making that determination, the district court considered

Mihalko’s counsel’s arguments for a lesser sentence, including Mihalko’s struggle with anxiety

and stress and the positive steps he had taken. The district court implied that those arguments

affected the sentence it imposed, noting that Mihalko’s counsel had made “inroads” on its thinking.

(R. 58, PID 329.) The district court also considered Mihalko’s own explanations for his actions,

but found them unconvincing. The district court thus properly considered the sentencing factors

and Mihalko’s arguments in mitigation before imposing a sentence above the Guidelines range.

Under these circumstances, Mihalko’s sentence was not substantively unreasonable. This court

has found similar above-Guidelines sentences substantively reasonable under comparable

circumstances.     See, e.g., Kontrol, 554 F.3d at 1093 (affirming 15-month sentence where

Guidelines range was 4 to 10 months but defendant had “unmitigated and well-documented

difficulties in dealing with persons in authority” and threatened probation officer); United States

v. Branch, 405 F. App’x 967, 970 (6th Cir. 2010) (affirming 24-month sentence where Guidelines

range was 6 to 12 months but defendant had multiple supervised-release violations and absconded

from supervision).

                                               III.

          Finding Mihalko’s sentence neither procedurally nor substantively unreasonable, we

affirm.




                                                8
