                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0489n.06

                                             No. 18-3012

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                       FILED
                                                                                       Oct 01, 2018
 UNITED STATES OF AMERICA,                                  )                     DEBORAH S. HUNT, Clerk
                                                            )
         Plaintiff-Appellee,                                )
                                                            )      ON APPEAL FROM THE
 v.                                                         )      UNITED STATES DISTRICT
                                                            )      COURT FOR THE
 CHARLOTTE C. NEEL,                                         )      NORTHERN DISTRICT OF
                                                            )      OHIO
         Defendant-Appellant.                               )



       Before: MERRITT, COOK, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. In 2014, Charlotte Neel was sentenced to six months in prison

for four probation violations. After being released, she was again brought before the district court

in late 2017 to answer for four supervised release violations: (1) associating with a felon; (2) failing

to report to her probation officer; (3) testing positive for cocaine; and (4) failing to pay restitution

for her original 2009 fraud conviction. After Neel admitted the violations, the district court

imposed an above-Guidelines sentence of two years in prison—the statutory maximum—with no

supervised release to follow. Neel appeals, challenging the substantive reasonableness of her

sentence. Having considered her argument, we AFFIRM.

                                                   I.

       Original Conviction. In March 2008, Neel used her brother’s name, Social Security

number, and other personal information to open a credit card account and incur $19,000 in charges

without his consent. On June 26, 2009, Neel pled guilty to one count of fraud in connection with
No. 18-3012, United States v. Neel


an access device in violation of 18 U.S.C. § 1029(a)(2). The district court sentenced Neel to three

years of probation and ordered her to pay $17,914.28 in restitution as a condition of her probation.

        Multiple Probation Violations. When she failed to pay the restitution amount during her

probation period, the district court extended Neel’s probation period twice, in September 2012 and

April 2013. Things only went downhill from there. In April 2014, the probation officer filed a

third report, this time alleging multiple new violations: (1) being convicted of possession of

criminal tools and threatening telecommunications in February 2014; (2) failing to pay her

outstanding restitution; (3) failing to notify her probation officer of her new criminal charges; and

(4) traveling to Maryland without her probation officer’s permission. Neel ultimately admitted the

violations. At these hearings, it also came to light that she had been convicted of disorderly

intoxication in August 2013 but, similarly, had failed to notify her probation officer of that

conviction.

       At the sentencing hearing, Neel asked that the court allow her to go to a treatment facility,

stating that she had mental health and substance abuse issues. Her attorney presented what he

described as an email1 from an Alcoholics Anonymous sponsor, Ann Thomasen, in support of

leniency for Neel. He claimed that Ann Thomasen—who had written glowingly about Neel’s

exemplary participation in AA—was traveling from Indianapolis to testify at Neel’s probation

violation hearing that day. The district court raised questions about the sponsor, based on the

probation officer’s concerns that Ms. Thomasen didn’t actually exist.2 When it became clear that



1
 At the original May 14, 2014 hearing, Neel’s attorney had also attempted to present what he
described as a letter from the claimed sponsor “explaining that [Neel] is sober.”
2
  The probation officer had informed the district court that she “ha[d] received numerous phone
calls from . . . so-called Ms. Thomasen,” but that she “ha[d] never been able to get in contact with
her.” The probation officer also said that the caller who left voicemails as Ms. Thomasen
“sound[ed] remarkably similar” to Neel.
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the district court was determined to wait for Ms. Thomasen to appear in person, Neel revealed to

her attorney—who had also been deceived up to this point—that Ms. Thomasen was “made up”

and “a complete fraud.”

       Based on the four supervised release violations and Neel’s “Ann Thomasen” charade, the

government asked for a sentence at the higher end of the Guidelines range (three to nine months).

The district court ultimately sentenced Neel to only six months’ imprisonment, followed by three

years of supervised release. The district court hoped that “perhaps after she serves some period of

time in custody, . . . she will be fully motivated . . . , when she returns to supervised release, to

obtain the help that she needs.”

       Most Recent Violations. That was, as it turned out, too optimistic. In August 2017, after

Neel had served her six months’ incarceration and been released, her probation officer filed a

fourth violation report alleging four new supervised release violations: (1) associating with a

felon; (2) failing to report to her probation officer; (3) failing a drug test; and (4) failing to pay

restitution for her original 2009 fraud conviction. Since the probation officer had not been able to

contact Neel and had no idea where she was, the district court issued a warrant for Neel’s arrest

on August 28, 2017. Neel was apprehended shortly thereafter and appeared before the court on

November 15, 2017, where she waived her right to a hearing and admitted the four new violations.

At Neel’s request, the district court postponed sentencing for a month so that her attorney could

explore possible substance abuse treatment options at an Akron facility called the Edna House.

       Before the sentencing hearing, the probation officer filed a supplemental report revealing

the circumstances surrounding Neel’s involvement, or lack thereof, in the program at Edna House.

The probation officer disclosed details from a conversation that occurred when she had called the

Edna House to inquire about Neel. According to the probation officer, Edna House said that



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No. 18-3012, United States v. Neel


Neel—who never actually enrolled in the program—would meet her family near the Edna House

facility to make them believe she was receiving treatment there. At one point in October 2017,

Neel even shared a birthday cake with her family in the Edna House courtyard, though she had

never received treatment there.

        At the sentencing hearing, Neel’s attorney argued that she had been suffering from drug

addiction and asked the court to consider placing her in the Edna House treatment program. Neel

herself also acknowledged her “inability to follow the very simple rules of probation” and her

unfortunate decline under supervised release. The government recommended that the court impose

a sentence “at the higher end” of the three-to-nine month advisory Guidelines range, reasoning

that the six months imposed by the court in 2014 “[o]bviously wasn’t a wake-up call for [Neel]

then, because she turned around and went right back to doing either the same thing or worse things

after that.”

        After hearing from the parties and weighing the statutory goals of sentencing, the district

court ordered twenty-four months’ imprisonment, which was the statutory maximum and fifteen

months above the advisory Guidelines range, with no supervised release to follow. The district

court reviewed Neel’s pattern and extensive history of violations, emphasizing that “despite every

effort by the probation staff, instead of showing some improvement in behavior or in any way,

shape or f[or]m modify her behavior, she has actually gone completely the other direction.” The

court highlighted Neel’s unwillingness to obtain treatment, as well as her lack of credibility:

“I wish I could believe you, Ms. Neel . . . . I don’t think you want really want treatment. I don’t

think you want treatment at all. I don’t think you want to be honest with yourself or honest with

your family or honest with the court.” When Neel’s attorney objected to the above-Guidelines

sentence, the court noted the objection but stated that the upward variance was necessary because



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of Neel’s history of deception, manipulation, and her repeated failure to take advantage of

opportunities for improvement.

       Neel timely appealed.

                                                 II.

       A criminal sentence must be both procedurally and substantively reasonable. United States

v. Morgan, 687 F.3d 688, 693 (6th Cir. 2012).          Neel has challenged only the substantive

reasonableness of her sentence. While an above-Guidelines sentence does not enjoy the same

presumption of reasonableness accorded to a within-Guidelines sentence, United States v.

Polihonki, 543 F.3d 318, 322 (6th Cir. 2008), we must still be “highly deferential” to the district

court’s sentencing decisions. United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018) (citing

Gall v. United States, 552 U.S. 38, 51 (2007)). “[A] major departure” from the Guidelines sentence

“should be supported by a more significant justification than a minor one.” Gall, 552 U.S. at 50.

       To determine whether a sentence is substantively reasonable, we look at the sentence length

and determine whether “the court placed too much weight on some of the [18 U.S.C.] § 3553(a)

factors and too little on others.” Rayyan, 885 F.3d at 442. “The point is not that the district court

failed to consider a factor or considered an inappropriate factor; that’s the job of procedural

reasonableness.” Id. We review claims of substantive unreasonableness for an abuse of discretion,

although we review the district court’s factual findings for clear error and its legal conclusions de

novo. Id. at 440, 442.

                                                III.

       Our review of the arguments and record before us indicate that the district court did not

abuse its discretion. After hearing fully from Neel, the government, and the probation officer, the

district court discussed the nature of the four new supervised release violations. The court noted



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that police officers had found Neel in a car with a convicted felon, along with “drugs . . . , scales,

pipes, [and a] silver spoon.” “Although [the felon] claims that the items are all his,” the court

continued, “given Ms. Neel’s history and her involvement with him, that claim is suspect, to say

the least.” As to Neel’s failure to report to her probation officer, the district court noted that

“[n]umerous attempts were made to contact the offender but to no avail.” She tested positive for

cocaine while on supervised release. And, of course, eight years after her original fraud conviction,

Neel had yet to comply with the restitution order in full.

       Given the many past attempts to give Neel second chances, the district court reasonably

concluded that “any further supervision” would be “a waste of time.” The court noted that Neel

had been under court supervision for an unusually long period of time, and that “[s]he’s been on

supervision primarily because of her inability to follow the law and comply with the basic

requirements of probation.”      Furthermore, the court noted that she had been given ample

opportunities to seek help and treatment, and that she had “failed . . . miserably” in each case. The

court specifically stated that it did not find her testimony, that she wanted to change her behavior

and seek treatment, credible.

       The district court reasonably determined that Neel’s six-month sentence in 2014 had failed

to get her attention. The court told her that “the six months that we gave you back in 2014 would

have been a motivator, and it was hopefully designed to offer you some motivation when you came

into the community to try to deal with your addiction and your other behaviors.” Unfortunately,

the court observed, “that’s just not happened.” Looking forward, the court believed a new sentence

of nine months’ imprisonment would not “serve any useful purpose.” And, ultimately, the district

court reasonably determined that the upward variance was necessary because of Neel’s steady

deterioration under supervision, as well as her history of deception.



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       Furthermore, considering the statutory sentencing factors, the district court determined that

it would “need to remove [Neel] from society, unfortunately, clearly for the protection of society

as a whole.” The statutory maximum sentence, according to the court, “will insure that this

defendant, again, will clearly not be a danger to the community, either financially or otherwise.”

Granting “due deference” to the district court’s determination, Gall, 552 U.S. at 51, we find that

this conclusion was reasonable in light of the sentencing factors and history the court considered.

       We struggle to find support in the record for Neel’s assertion that the “district court did not

consider the alternative to a full 24-month revocation sentence as presented by counsel.” The

district court postponed the original hearing by one month to give Neel time to investigate the

treatment alternative she would later request. At the hearing, Neel repeatedly stressed the “other

issues taking place in her life, especially as it relate[s] to the substance abuse and some mental

health issues,” and “respectfully request[ed] that the court sentence her [to four to five weeks’

incarceration], and then order [her] to complete the intensive inpatient treatment program at Edna

House followed by whatever . . . period of supervision” the court “deem[ed] appropriate.” The

district court explicitly determined that it did not find Neel’s expressed desire for rehabilitation to

be credible, and Neel has presented no evidence on appeal to show that factual determination was

clearly erroneous. Rayyan, 885 F.3d at 440, 442. Thus, in the context of our “highly deferential”

review, id. at 442, we see no reason to conclude that the sentence was substantively unreasonable.

       An exchange that took place after the district court pronounced its sentence illustrates this

point. During sentencing, the district court judge told Neel (mistakenly) that he had delayed the

sentencing hearing “to give you one last chance to really make a genuine effort to obtain some

form of treatment,” but observed “that has not occurred.” After the sentence, Neel’s attorney spoke

up to correct the record, clarifying that the district court had granted the continuance not to give



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No. 18-3012, United States v. Neel


Neel a chance to seek treatment—she was incarcerated between the hearings—but rather to give

her attorney time to examine treatment options at Edna House. The court acknowledged the error

and corrected the record, and then asked the probation officer several questions about Edna House.

Neel’s attorney added that Neel had been “in forced sobriety” in prison, and that Edna House was

willing to “accept her after she filled out the application.” The district court nevertheless stated

that “I will take all that under consideration. It does not change my thought process with regard

to the defendant.” The court noted that when given the chance to improve, Neel had gone “right

back to the [self-destructive] behaviors and back to the bad relationships.” For these reasons, the

court said, “I am sorry, I will accept what you said, but it isn’t going to change my position.”

Without more, however, this dialogue doesn’t show that the “district court did not consider the

alternative to a full 24-month revocation sentence as presented by counsel,” as Neel contends.

Rather, giving the district court the “due deference” required, Gall, 552 U.S. at 51, this exchange

demonstrates that the court gave Neel sufficient opportunity to make her case for treatment, and

that she had simply failed to convince the court.

       The length of the sentence accounted for the totality of circumstances surrounding Neel’s

violations and her broader history under supervision. The district court specifically stated that it

“ha[d] carefully considered the matter” and “gone back and looked at the history of this case.” As

noted above, the record reflects that careful consideration. When, as in this case, “a district court

considers the relevant § 3553(a) factors in-depth and reaches its determination that the appropriate

sentence [falls] outside the advisory guidelines range,” we are “very reluctant to find the sentence

unreasonable.” United States v. Collington, 461 F.3d 805, 811 (6th Cir. 2006).

       Ultimately, Neel would have the district court put more weight on the goal of “provid[ing]

the defendant with needed . . . medical care,” and less weight on “the history and characteristics



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No. 18-3012, United States v. Neel


of the defendant” and the need “to protect the public from further crimes of the defendant.”

18 U.S.C. § 3553(a)(1), (2)(C) & (D). But we cannot say that the district court abused its

discretion in its own weighing of the statutory sentencing factors. See United States v. Ely,

468 F.3d 399, 404 (6th Cir. 2006) (stating that a defendant’s request “to balance the factors

differently from the district court . . . is simply beyond the scope of . . . appellate review”). In

short, given the factual circumstances of this case, nothing in the record indicates that Neel’s

sentence was substantively unreasonable. Our appellate review is necessarily at an end.

                                               ***

       We AFFIRM the judgment of the district court.




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