                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0677n.06

                                       Case No. 17-3107

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                               FILED
                                                                         Dec 07, 2017
UNITED STATES OF AMERICA,                          )                 DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE NORTHERN DISTRICT OF
SYLVESTER MARKS,                                   )       OHIO
                                                   )
       Defendant-Appellant.                        )
                                                   )       OPINION
                                                   )

       BEFORE: GILMAN, SUTTON, and STRANCH, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Sylvester Marks appeals his sentence of

36 months’ imprisonment for violating the terms of his supervised release. He argues that his

sentence is both procedurally and substantively unreasonable. For the reasons set forth below,

we AFFIRM the judgment of the district court.

                                      I. BACKGROUND

A.     Factual background

       Marks has an extensive criminal history. It began in 1987, when, at age 18, he was

convicted of petty theft and forgery. The following year, Marks was convicted of receiving

stolen property. And in 1989, he was convicted of drug trafficking. He also committed a

robbery that year, for which he received a sentence of 3 to 15 years’ imprisonment.
Case No. 17-3107
United States v. Marks

       Marks was later paroled. While on parole, he accumulated numerous violations. His

parole was not revoked, however, until he was charged with attempted robbery, resisting arrest,

and assault on a police officer. Six months’ confinement followed. Marks was released in 2004.

       The day after his release, Marks participated in a bank robbery. He was subsequently

arrested and found to be in possession of crack cocaine. Federal charges followed. After Marks

pleaded guilty to receiving stolen property and possessing crack cocaine with intent to distribute,

the district court sentenced him to 151 months in prison to be followed by a three-year term of

supervised release. The court also ordered Marks to participate in a substance-abuse treatment

program while imprisoned.

       Marks was released on July 20, 2016. Less than six weeks later, he first violated the

terms of his supervised release when he was arrested for theft, criminal mischief, littering, and

possession of drug paraphernalia—to all of which he pleaded “no contest.” Marks remained in

custody for these offenses until September 3, 2016. Upon his release, he failed to timely report

his arrest to his probation officer. That was Marks’s second violation of the terms of his

supervised release.

       His third violation followed two days later, on September 5, 2016, when Marks

committed two more thefts. In that day’s first theft, Marks and another man, later identified as

Troy Martin, entered a “Circle K” convenience store, picked up a case of beer, and took the beer

without paying.

       The second theft occurred later that day, when Marks and Martin went to a Dollar

General store. Marks entered the store and indicated that he wished to buy cigarettes. Martin

remained outside. After the store’s clerk handed Marks a ten-pack carton of cigarettes, Martin

entered the store. A dispute ensued. During the dispute, Marks dropped a pack from the carton


                                               -2-
Case No. 17-3107
United States v. Marks

onto the floor. As he bent down to pick it up, Martin grabbed the nine packs remaining in the

carton and ran out of the store. Marks then followed with the pack that he had dropped.

       Later that day, a police officer spotted Marks near an apartment building about a mile and

a half from the Dollar General store. The officer questioned Marks about the theft of cigarettes.

When the officer placed his hand on Marks’s arm, Marks pushed it away and started running.

The officer pursued Marks on foot and, with the help of other officers, apprehended him after a

short chase. For the theft from the Dollar General store, Marks subsequently pleaded guilty in

Ohio state court to felony theft. Charges regarding the theft from the Circle K were dropped.

       The federal revocation proceeding followed. At the second of two revocation hearings,

the district court heard testimony from witnesses, Marks’s allocution, and the arguments of

counsel. Defense counsel contended that Marks’s “drug and alcohol abuse” and “mental health

history” had played a significant role in his conduct on supervised release. He opined that “Mr.

Marks, instead of using the medication that was prescribed to him, started using illicit drugs to

deal with some of the issues that have plagued Mr. Marks most of his life.” Defense counsel also

informed the court that Marks wanted to “go into a residential drug treatment program” to obtain

the “treatment that he believes that [he] so sorely needs.”

       Marks echoed his attorney’s remarks. He stated: “I always used drugs and alcohol, you

know, and any time that I committed my crimes, Your Honor, I always was under the influence

of alcohol and drugs. And I just really want to get some help and try to get my life back on

track.” Marks also explained that he had fled from the officers investigating the Dollar General

theft partly because he “was high and drinking.” He concluded by reiterating, “I just want to

have an opportunity to change my life.”




                                                -3-
Case No. 17-3107
United States v. Marks

       When Marks finished his allocution, the district court expressed doubt that he would

benefit from additional supervised release because the Presentence Report (PSR) indicated that

he had done poorly in his prerelease program and shown little interest in rehabilitation. In

particular, the court noted that the PSR reflected the following facts: Marks had exhibited

problems following the rules of the prerelease program. He appeared to have issues with

authority figures. Three times in July 2016, he had shown up late to counseling appointments.

His counselors wrote that he appeared to have significant issues with chemical dependency,

which he refused to address, and that he was very resistant to making any positive changes in his

life. The administrators of the halfway house where Marks had stayed considered his prognosis

poor and deemed him likely to recidivate. They concluded that he was simply going through the

motions of the prerelease program. In the court’s opinion, subsequent events had validated these

assessments.

       The district court then explained the reasons for the sentence that it was about to

pronounce:

               We have a defendant for all those reasons who cannot be supervised, who
       despite whatever efforts we have made or have been made, in a matter of weeks
       and days returns to criminal conduct at every turn, and has refused to confront the
       issues that bring him here, and makes him a high risk for continued recidivism.

               The need for the sentence imposed, and I’ve described in some respects
       the nature and circumstances of his record, of his arrests and his criminal conduct
       here that brings him here as set forth in the report.

               The need for the sentence imposed here is just punishment, adequate
       deterrence, protect the public, reflect the seriousness of the offense and improve
       the offender’s conduct and condition.

              This is a defendant who rehabilitation is not likely, unfortunately, as borne
       out in the reports, referencing his time in the halfway house, he’s made no


                                              -4-
Case No. 17-3107
United States v. Marks

       progress or little progress, in fact, refused to acknowledge the issues of his drugs
       and alcohol abuse.

               So, therefore, we have little alternative but to remove him from society for
       as long of a period of time as can be removed.

Accordingly, the court varied upward from the Guidelines range of 8 to 14 months’

imprisonment. It imposed the statutory-maximum term of imprisonment—36 months—to run

consecutively to his State sentence, with no term of supervised release to follow.

B.     Procedural background

       On January 20, 2017, Marks appeared before the district court pursuant to a notice to

appear for a revocation proceeding. He admitted to the three violations described above. Ten

days later, the court imposed the sentence at issue here. This timely appeal followed.

                                         II. ANALYSIS

       On appeal, Marks argues that his sentence is both procedurally and substantively

unreasonable. His theory of procedural error is that the district court did not adequately consider

or explain its reasons for rejecting his arguments that he needed treatment for substance abuse

and mental illness. The gist of his challenge to the substantive reasonableness of his sentence is

that the court imposed a term of imprisonment nearly three times longer than the longest term

suggested by the Guidelines and did so in response to relatively minor offenses for which the

State of Ohio did not see fit to incarcerate him. For the reasons set forth below, we conclude that

the circumstances of this case render both of his arguments meritless.

A.     Marks’s procedural-reasonableness challenge

       In the present case, after the district court pronounced Marks’s sentence, defense counsel

lodged a single objection:



                                               -5-
Case No. 17-3107
United States v. Marks

       Your Honor, we would object to the upward variance that the court has imposed
       against Mr. Marks, in large measure it appears that Your Honor is motivated by
       Mr. Marks’[s] criminal history. Mr. Marks’s criminal history has already been
       taken into consideration by the sentencing guidelines or the probation guidelines
       as he stands at a Criminal History Category VI.

              So the revocation range of 8 to 14 months takes into consideration the fact
       that Mr. Marks has the highest criminal history that a person could have, so based
       upon that, we would object to the court’s upward variance.

       Counsel’s objection focused solely on the district court’s use of Marks’s criminal history

in fashioning his sentence. It did not mention the procedural issue raised on appeal—whether the

court adequately considered Marks’s need for treatment. Accordingly, counsel’s statements did

not adequately apprise the court of the current basis for the objection or afford it an opportunity

to address the purported error. We therefore review Marks’s procedural objection under the

plain-error standard, which is less exacting than the normal abuse-of-discretion standard. See

United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (“A party who neglects to

make an objection, even after being given ‘an opportunity’ to do so, forfeits the argument and

may obtain relief on appeal only if the error is ‘plain’ and ‘affects substantial rights.’” (quoting

Fed. R. Crim. P. 52(b))); see also United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010)

(“Where a party has failed to object to a procedural defect, we review claims of procedural

unreasonableness for plain error.” (citing Vonner, 516 F.3d at 385–86)).

       The record shows that the district court fully considered Marks’s arguments regarding his

need for treatment and adequately explained its reasons for rejecting them. At several points, the

court specifically responded to defense counsel’s arguments regarding Marks’s need for

treatment, each time expressing doubt that Marks intended to cooperate with further treatment

efforts. It particularly noted that Marks, during his time in the prerelease program just a few



                                               -6-
Case No. 17-3107
United States v. Marks

months earlier, had consistently refused to acknowledge his substance abuse, shown up late to

counseling appointments, and resisted counselors’ efforts to help him.

       The district court thus adequately explained why it rejected Marks’s request for further

treatment and concluded that his incarceration would better serve the public interest. It expressly

considered various § 3553(a) factors and did not plainly err in weighing them. To the contrary,

the record shows that the court engaged in a reasoned and transparent decision-making process.

This leads us to the conclusion that there was no error, much less plain error, in how the district

court dealt with the procedural aspects of Marks’s sentence.

B.     Marks’s substantive-reasonableness challenge

       We now turn to Marks’s argument that his sentence is substantively unreasonable. Marks

contends that his sentence is substantively unreasonable because (1) it is nearly three times

longer than the longest sentence suggested by the Guidelines, (2) the offenses underlying the

revocation of his supervised release were “low-level” and “non-violent,” and (3) the State of

Ohio did not impose a term of imprisonment for those offenses.

       We review the substantive reasonableness of a sentence under the abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). “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. Conatser, 514 F.3d

508, 520 (6th Cir. 2008). The § 3553(a) factors, which the court “shall” consider, include “the

nature and circumstances of the offense,” “the history and characteristics of the defendant,” and

the need for the sentence “to reflect the seriousness of the offense,” “promote respect for the




                                               -7-
Case No. 17-3107
United States v. Marks

law,” “provide just punishment,” “afford adequate deterrence to criminal conduct,” and “protect

the public.” 18 U.S.C. § 3553(a).

       “In reviewing for substantive reasonableness, we must ‘take into account the totality of

the circumstances, including the extent of any variance from the Guidelines range.’” United

States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007) (quoting Gall, 552 U.S. at 51). Although “we

may apply a rebuttable presumption of substantive reasonableness” to sentences “within the

Guidelines,” “[w]e may not . . . apply a presumption of unreasonableness to outside-Guidelines

sentences.” Id. We must instead “give ‘due deference’ to the district court’s conclusion that the

sentence imposed is warranted by the § 3553(a) factors.” Id. (quoting Gall, 552 U.S. at 51).

“The fact that [we] might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal.” Gall, 552 U.S. at 51.

       Marks’s basic argument is that his sentence is substantively unreasonable because it

exceeds the high end of his Guidelines range of 8 to 14 months by a factor of almost three. But

this fact must be viewed in context. A relevant factor under § 3553(a)—and one that the district

court expressly considered—is the need for the sentence to reflect the seriousness of the offense.

That “offense” is not the conduct that prompted the revocation, but the offense for which the

defendant was convicted in the first place. United States v. Johnson, 640 F.3d 195, 203 (6th Cir.

2011). In this case, the original offense was a serious one that reflected a troubling pattern of

recidivism, with Marks participating in a bank robbery just one day after he was released from

confinement for a prior offense.

       As the Supreme Court recognized in rejecting the use of a rigid mathematical formula to

determine the reasonableness of sentences, “deviations from the Guidelines range will always

appear more extreme—in percentage terms—when the range itself is low.” Gall, 552 U.S. at


                                                 -8-
Case No. 17-3107
United States v. Marks

47–48. The district court here was confronted with a defendant’s clear pattern of recidivistic

behavior that repeatedly occurred immediately upon his release. Marks committed the thefts that

violated the terms of his supervised release in the present case only two days after his most

recent release from confinement. At sentencing, Marks’s main argument for leniency was his

need for treatment and support related to mental illness and substance addiction. But, as the

district court noted, Marks had been receiving precisely that assistance when he reoffended, and

his record did not evince any real commitment to the treatment program. In light of Marks’s

recidivistic behavior across many years and following repeated terms of incarceration, we fail to

see how 36 more months imposed now is unreasonable. This is especially true given that

subsequent events have shown the court that Marks’s original sentence was insufficient to deter

him from future criminal conduct.

       Turning to Marks’s remaining arguments, we find them unpersuasive. Marks emphasizes

that his new offenses were nonviolent and did not result in his imprisonment by the State. No

doubt these facts weigh in favor of leniency. But they do not necessarily outweigh other salient

facts, such as the haste with which Marks repeatedly reoffended—a fact on which the district

court understandably placed great weight. See Bolds, 511 F.3d at 581 (“[W]e must give ‘due

deference’ to the district court’s conclusion that the sentence imposed is warranted by the

§ 3553(a) factors.” (quoting Gall, 552 U.S. at 51)).

       Marks also contrasts his sentence with those that this court approved of in United States

v. Chowdhury, 438 F. App’x 472, 477–78 (6th Cir. 2011), and Johnson, 640 F.3d at 209, in

which the district courts imposed smaller upward variances for offenses that Marks characterizes

as more serious than his own. But those cases, as affirmances, do not establish a ceiling above




                                               -9-
Case No. 17-3107
United States v. Marks

which a court cannot upwardly vary. Nor do they imply that this court would have disapproved

of harsher sentences in those cases.

       In addition, Marks selectively ignores facts that obscure the distinctions that he attempts

to draw. For instance, he implies that his own violations were less serious than the defendant’s

in Chowdhury (where this court approved a three-month upward variance) because that

defendant “actually fled the district” and “failed to appear for his revocation hearing.” But

Marks ignores the fact that he himself fled from officers investigating his most recent offense.

That he did not evade capture long enough to leave the district is hardly a distinguishing fact.

Similarly, Marks points to Johnson as an example of a case in which we approved of a smaller

(15-month) upward departure for a more serious violation. But he ignores the fact that the

upward departure in Johnson, like the upward variance at issue here, placed the defendant’s

sentence at the statutory maximum.       640 F.3d at 200.       Johnson therefore supports the

government’s position as much as it does his own.

       In sum, we conclude that Marks’s sentence is not substantively unreasonable. The

district court therefore did not abuse its discretion in imposing the 36-month term of

imprisonment.

                                       III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




                                             - 10 -
