                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0333n.06

                                        Case No. 15-5794

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Jun 17, 2016
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )        ON APPEAL FROM THE
v.                                                     )        UNITED STATES DISTRICT
                                                       )        COURT FOR THE EASTERN
MIGUEL DAVID AYALA,                                    )        DISTRICT OF KENTUCKY
                                                       )
       Defendant-Appellant.                            )

                                                                          OPINION


BEFORE: BATCHELDER, MOORE, McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Miguel David Ayala violated his conditions of supervised

release three times, squandering the district court’s repeated efforts to send him to treatment

instead of prison. After Ayala’s third strike, the district court revoked his supervised release and

imposed the statutory maximum 24-month sentence. Ayala claims the sentence is procedurally

unreasonable. We disagree and AFFIRM the sentencing decision of the district court.

                                                 I

       Miguel David Ayala has an extensive criminal record including several felonies and

numerous misdemeanors. As a result of pleading guilty to aiding and abetting a bank robbery,

Ayala was sentenced to 78 months of imprisonment and supervised release of three years. Ayala

completed his prison sentence and was released in 2014. He soon began violating conditions of
Case No. 15-5794, United States v. Ayala


his supervised release (using alcohol, failing to secure employment, failing to pay restitution)

and was then arrested for drunk driving, assault, fleeing and evading, and wanton endangerment.

Pending the resolution of these state court charges, the district court held a revocation hearing

and, instead of revoking his supervised release, modified Ayala’s conditions to include six

months of substance abuse treatment and mental health counseling.

       After only one month of treatment, the facility terminated Ayala from the program after

repeated violations of the facility’s regulations. Ayala then pleaded guilty to an underlying state

court felony and was transferred to federal custody. On May 19, 2015, Ayala faced his second

revocation hearing where he admitted continued violations of his supervised release—

committing a crime, using alcohol, and, most notably, failing to complete his substance abuse

treatment program. Even then, the district court was not without patience. After thoroughly

discussing the basis for Ayala’s termination from the treatment facility, the court discussed

Ayala’s request to again be placed in a treatment facility instead of prison.          Admittedly

concerned that Ayala had “so cavalierly rejected” the requirement that he complete treatment, the

court gave Ayala a final chance to avoid revocation, modifying his conditions to permit re-

enrollment in a different treatment facility. This leniency was not without cost—the court

warned Ayala that getting himself “kicked out” of the treatment facility would result in a swift

return to prison. When asked whether Ayala understood the seriousness of this promise, he

responded: “[It is] crystal clear, sir, I understand. Failure is not an option any more for me.” R.

333, May Hr’g Tr., PID 886.

       But Ayala could not follow through with his end of the bargain. After only one month at

the new facility—the same duration as his previous stint in rehab—Ayala voluntarily left the

program without permission from his probation officer or the court. This led to his arrest and a



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third revocation hearing on July 20, 2015, a mere two months after his second revocation hearing

before the same sentencing judge. Ayala explained that his departure was triggered by the

facility’s internal policy to not provide his specific bi-polar medication; the denial of medication

reportedly resulted in withdrawal symptoms and exacerbated his unstable mental state.

Nonetheless, Ayala acknowledged his mistake before the district court: “I know that you gave

me a break, I know that you did and I really appreciate that, and you made it perfectly clear what

would happen should I not complete the program[.]” R. 334, July Hr’g Tr.,PID 921. Ayala’s

counsel asked for a sentence within the Guidelines range of 8–14 months, but also stated that he

“specifically recollect[ed]” the district court “telling my client and me that if he did violate your

order, you would sentence him to the statutory maximum of two years.” R. 334, July Hr’g Tr.,

PID 920.

       After hearing counsel’s arguments and listening to Ayala’s allocution, the district court

reminded Ayala: “I told you when you were here the last time that this was your last chance and

that if you didn’t complete the program I was going to give you the statutory maximum [of 24-

months].” R. 334, July Hr’g Tr., PID 922–23. The court continued, “[y]ou know, that’s a

serious promise, and I expected you to complete the program. I didn’t expect you to walk out.”

Id. at 923.    Though Ayala’s Supervised Release Violation Report (“Violation Report”)

recommended an 8–14 month sentence, Ayala’s persistently disastrous track record led the court

to impose the statutory maximum 24-month sentence. The court recommended that Ayala be

incarcerated in a correctional facility with polysubstance abuse and mental health programs, and

directed Ayala to receive mental health and substance abuse treatment. When asked if there

were questions or objections, both Ayala and his counsel responded that they had none.




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                                                II

       Ayala challenges only the procedural reasonableness of his sentence, alleging that the

district court (1) failed to refer to the recommended Guidelines range set forth in the Violation

Report and offered little explanation for sentencing in excess of that range; and (2) failed to

address his mitigating argument that he left treatment because the facility did not provide his bi-

polar medication.

       As Ayala did not raise any objections to his 24-month sentence at the conclusion of his

revocation hearing, we are constrained to review only for “plain error.” United States v. Vonner,

516 F.3d 382, 386 (6th Cir. 2008) (internal citation and quotation marks omitted). Reversal for

plain error is limited to “exceptional circumstances,” Vonner, 516 F.3d at 386, and the defendant

has the burden to “show (1) there is error; (2) the error was ‘clear or obvious rather than subject

to reasonable dispute’; (3) it affected the defendant’s substantial rights, which in the ordinary

case means it affected the outcome of the district court proceedings; and (4) it seriously affected

the fairness, integrity or public reputation of judicial proceedings.” United States v. Massey, 663

F.3d 852, 856 (6th Cir. 2011) (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).

       1. Consideration of the Guidelines Range and § 3553(a) factors

       Ayala complains that the district court did not adequately explain its reasons for imposing

his sentence or explicitly refer to his Guidelines range. A court may impose a prison sentence

for violation of the terms of supervised release “after considering [various] factors” including:

“the nature of the offense [and the history and characteristics of the defendant]; the need to deter

criminal conduct, to protect the public, and to provide Defendant with appropriate treatment; any

guideline range for sentencing; guideline policy statements; and avoidance of unwarranted

disparities.” United States v. Johnson, 403 F.3d 813, 815 (6th Cir. 2005); see 18 U.S.C.



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§ 3583(e) (referring to consideration of § 3553(a) factors in modifying supervised release). As

some factors are more relevant than others in any given case, we have consistently held that a

“ritual incantation” of each factor is unnecessary to affirm a district court’s sentence. Johnson,

403 F.3d at 816; see also United States v. Denny, 653 F.3d 415, 424 (6th Cir. 2011). Rather, our

modest inquiry is only whether a district court’s sentencing explanation is sufficient to “permit

meaningful appellate review.” United States v. Simmons, 587 F.3d 348, 361 (6th Cir. 2009).

       In considering the history between the sentencing judge and defendant Ayala, involving

several encounters in a relatively short period, we are satisfied that the district court met this

standard. Addressing the nature and circumstances of the offense, the court referred to Ayala’s

previous failure to complete treatment, noting “help is something we have tried to give you.” R.

334, July Hr’g Tr., PID 922. The court also discussed Ayala’s history and characteristics when it

acknowledged that “you just don’t want . . . to abide by the programs’ requirements, and you are

not going to get any better until you learn to do that.” Id. at 922. Further, at Ayala’s prior

revocation hearing, the court discussed Ayala’s age (37), and expressed concern that his repeated

interactions with the justice systems could “find [him] standing in front of [the district court] or

some other judge the rest of [his] life.” R. 333, May Hr’g Tr., PID 885. See United States v.

Mendez, 498 F.3d 423, 428 (6th Cir. 2007) (examining the explanation furnished at an original

sentencing hearing to determine adequacy of the court’s subsequent sentencing explanation).

Obviously cognizant of Ayala’s repeated violation of his conditions, the court also addressed the

need to deter future criminal conduct by revoking his supervised release and placing him a in

federal correctional facility. Finally, the court took care to “provide the defendant with [other]

needed . . . correctional treatment,” § 3553(a)(2)(D), by ensuring he would be incarcerated at a

“polysubstance abuse and mental health facility” in what amounts to the fourth time the district



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court took active steps to ensure Ayala received treatment. R. 334, July Hr’g Tr., PID 922. To

the extent Ayala argues the court did not allege the “specific reason” for varying from the

Guidelines, see § 3553(c)(2), he ignores the court’s consistent leniency and repeated efforts to

encourage treatment in lieu of prison time and reneges on his professed “crystal clear”

understanding of what would happen if he failed to complete treatment.

         While we have on occasion found a district court’s failure to expressly identify the

applicable advisory Guidelines range to be reversible error, see United States v. Blackie, 548

F.3d 395, 400–01 (6th Cir. 2008), here the Guidelines range was not totally absent from the

revocation hearing. The Violation Report contained Ayala’s range and was indisputably before

the district court; Ayala never argued that the court failed to consider it at any stage in the

revocation proceeding. In such circumstances, we have held a “district court’s statements reflect

consideration of the [Violation Report’s Guidelines range] without express reference to the

report.” United States v. Polihonki, 543 F.3d 318, 324 (6th Cir. 2008); see also United States v.

McClellan, 164 F.3d 308, 310 (6th Cir. 1999) (finding that the “court is presumed to have

considered the recommended sentencing range set forth in the policy statements”); United States

v. Malone, 404 F. App’x 964, 966 (6th Cir. 2010). Here, the court’s reference to Ayala’s

repeated failures to comply with the conditions of his supervised release “shows it was plenty

familiar with, and quite disappointed by, the report.” Malone, 404 F. App’x at 966.1

        Because the record reflects appropriate consideration of several relevant § 3553(a)

sentencing factors and reaffirms the court’s interest in ensuring Ayala receive mental health

treatment (albeit, now while incarcerated), we discern a “reasoned basis” for the court’s decision,




1
 We also note that Ayala’s defense counsel discussed the Violation Report’s Guidelines recommendation of 8–14
months during the final revocation hearing. R. 334, July Revocation Hearing, PID 920.

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Rita v. United States, 551 U.S. 338, 356 (2007), and hold the court did not commit plain error in

imposing Ayala’s sentence.

       2.   Consideration of Ayala’s Mitigating Argument

       Ayala     also contends that the district court erred by not addressing his mitigating

argument that “he left the treatment program because they failed to give him his medication,

which in turn caused problems with his mental health issues.” Ayala Br. at 14. In essence,

Ayala suggests that the court’s failure to directly reject his argument indicates that the court

failed to consider it when imposing his sentence. But the record makes clear that this factor was

well within the court’s contemplation during sentencing; defense counsel cross-examined a

counselor at the rehabilitation facility who testified that Ayala’s bi-polar disorder medication was

on the facility’s “cannot take list.” R. 334, July Rev. Hr’g Tr., PID 899–907. Further, Ayala

referred to the change in his medicated status several times at the hearing and noted that he

“struggled on a daily basis” as a result.

       “District courts may exercise discretion in determining how much of an explanation of

the sentence is required because the amount of reasoning required varies according to context.”

United States v. Jeross, 521 F.3d 562, 582–83 (6th Cir. 2008) (internal citation and quotation

marks omitted).        Where the defendant presents arguments that are “conceptually

straightforward,” Vonner, 516 F.3d at 388, “we may assume, even absent express analysis by the

judge, that the sentence reflects consideration of the argument.” Simmons, 587 F.3d at 361; see

also Polihonki, 543 F.3d at 325 (“This court has made it clear that a district court need not

explain its reasons for rejecting each argument made by a defendant.”) (quoting United States v.

Smith, 510 F.3d 603, 608 (6th Cir. 2007)).           Because Ayala’s mitigating argument was

straightforward and obviously present throughout the revocation hearing, it did not necessitate a



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direct response and rejection from the district court. While the district court could certainly have

said more, Ayala’s supervised release violations, inability to complete treatment, and mental

health concerns had been at the forefront of the sentencing judge’s mind over the course of three

revocation hearings during a span of just over one year. There simply wasn’t much left to say.

        Ayala’s professed concern over the district court’s brevity is belied by how little he had

to say about the matter at sentencing. Ayala did not object to the Violation Report or otherwise

respond to it; he did not deny the problems underlying his repeated violations of his conditions,

nor did he argue against the need for the court to respond to them. We see no mystery here. All

of the parties understood that Ayala’s failure to complete the second program was the proverbial

straw that would break the camel’s back—an outcome that would result in sentencing in

accordance with the statutory maximum.2

        For these reasons, even if we concluded the district court’s admittedly sparse explanation

amounted to clear error, Ayala would still fail to carry his burden under the third prong of plain

error review “because he cannot show prejudice.” United States v. Gabbard, 586 F.3d 1046,

1051 (6th Cir. 2009) (citing United States v. White, 563 F.3d 184, 197 (6th Cir. 2009)). “The

prejudice in an adequacy-of-explanation challenge comes from the inference that the district

court would have reached a different sentence if it had reasoned properly.” Id. Though we

ultimately find no reversible defect in the district court’s explanation, Ayala is, in any event,

unable to persuade us that remanding for further discussion of issues already considered in

multiple revocation hearings would lead to a different sentence.                     Therefore, any alleged




2
 See R. 334, July Rev. Hr’g Tr., PID 921–22 (Ayala: “you made it perfectly clear what would happen should I not
complete the program[.]”; Defense Counsel: “I specifically recollect standing in this courtroom a short time ago,
you telling my client and me that if he did violate your order, you would sentence him to the statutory maximum of
two years.”)

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Case No. 15-5794, United States v. Ayala


procedural defect did not affect the outcome or the fairness of the proceedings, a necessary

prerequisite for relief under plain error review. Massey, 663 F.3d at 856.

                                               III

       For the reasons above, we hold that the district court’s imposition of Ayala’s sentence

was not procedurally unreasonable and therefore AFFIRM.




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       KAREN NELSON MOORE, Circuit Judge, dissenting. I would hold that the district

court plainly erred by not identifying the applicable Guidelines range and by not explaining why

Miguel Ayala’s conduct warranted a term of imprisonment almost twice as long as the high end

of that range. I would further hold that, in sentencing Ayala for leaving a drug rehabilitation

facility, the district court plainly erred by not responding to Ayala’s argument that he left the

facility only because it would not allow him to take his bipolar medication.

       18 U.S.C. § 3553(c)(2) requires a district court to state its reasons for a sentence “with

specificity.” We have interpreted § 3553(c)(2) to mean that a district court must both identify

the applicable Guidelines range and offer a reasoned explanation for its sentence. United States

v. Blackie, 548 F.3d 395, 401‒02 (6th Cir. 2008). Here, the district court did neither. At the

May hearing, the district court told Ayala that it would sentence him to the statutory maximum if

he left the rehabilitation facility. R. 333 (May 19, 2015 Hr’g Tr. at 17‒19) (Page ID #885‒87).

And at the July hearing, the district court did exactly that. R. 334 (July 20, 2015 Hr’g Tr. at 34‒

36) (Page ID #922‒24). But at neither hearing did the district court acknowledge Ayala’s

Guidelines range of 8‒14 months of imprisonment or explain why Ayala’s decision not to

complete the treatment program deserved a sentence almost twice the high end of that range.

The only justification that the district court offered for Ayala’s twenty-four month sentence was

that the court had previously said it would impose a twenty-four month sentence. Id. This is far

from sufficient. The district court’s failure to comply with the clear dictates of § 3553(c)(2)

constitutes plain error. Blackie, 548 F.3d at 401‒02.

       The district court also did not address Ayala’s argument that he left the rehabilitation

facility because the facility would not allow him to take his bipolar medication. “‘When a

defendant raises a particular, nonfrivolous argument in seeking a lower sentence, the record must



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reflect both that the district judge considered the defendant’s argument and that the judge

explained the basis for rejecting it.’” United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010)

(alterations omitted) (quoting United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009)). The

record does not reflect either here. Although Ayala raised the issue at the July hearing, and

although one of the counselors from the rehabilitation facility testified that Ayala was not

allowed to bring his bipolar medication into the facility, R. 334 (July 20, 2015 Hr’g Tr. at 18)

(Page ID #906), the district court never responded to Ayala’s argument. This is plain error.

Wallace, 597 F.3d at 803‒05.

       These errors deprived Ayala of his right to meaningful appellate review. See United

States v. Cabrera, 811 F.3d 801, 813 (6th Cir. 2016) (“A district judge must comply with

§ 3553(c) in order to afford a defendant the right to meaningful appellate review—i.e., to create a

record for appeal that adequately discloses the judge’s reasons for sentencing a defendant.”

(emphasis in original)); see also Rita v. United States, 551 U.S. 338, 356 (2007) (“The

sentencing judge should set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.”). The majority is wrong in requiring Ayala additionally to show prejudice. Maj. Op.

at 8‒9. We have repeatedly held that a defendant’s right to meaningful appellate review is a

substantial one. Cabrera, 811 F.3d at 813 (identifying “the right to meaningful appellate

review” as “a substantial right that does not require a showing of prejudice”); Wallace, 597 F.3d

at 807 (recognizing “that § 3553(c) generally implicates a ‘substantial right’ . . . to meaningful

appellate review”): Blackie, 548 F.3d at 403 (joining other circuits “in finding that § 3553(c)(2)

confers a substantial right to meaningful appellate review” (emphasis in original)). Ayala need

not show that the district court would have imposed a different sentence had it not committed



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these errors. See Maj. Op. at 8‒9. Ayala need show only that the errors deprived him of his right

to meaningful appellate review, which he has done. Accordingly, I would vacate Ayala’s

sentence and remand this case to the district court for resentencing. The majority seeing things

differently, I respectfully dissent.




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