               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0373n.06

                                       Case No. 14-2024
                                                                                   FILED
                          UNITED STATES COURT OF APPEALS     May 26, 2015
                               FOR THE SIXTH CIRCUIT     DEBORAH S. HUNT, Clerk

 UNITED STATES of AMERICA,                           )
                                                     )
        Plaintiff-Appellee,                          )
                                                     )     ON APPEAL FROM THE
                v.                                   )     UNITED STATES DISTRICT
                                                     )     COURT FOR THE WESTERN
 KENDRA SUE KRUGER,                                  )     DISTRICT OF MICHIGAN
                                                     )
       Defendant-Appellant.                          )
 _______________________________________             )

Before: SUHRHEINRICH, BATCHELDER, and CLAY, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Defendant Kendra Kruger appeals her

sentence, resulting from revocation of her supervised release. We AFFIRM.

                                                I.

       In July 2010, the U.S. Postal Inspection Service discovered that a package containing

methamphetamine had been shipped from San Diego to Grand Rapids, Michigan, and set up

surveillance for the package. On July 27, a postal employee spotted the package, a K-9 officer

alerted to the presence of narcotics, and upon opening the package, inspectors discovered two

baggies of suspected methamphetamine. A controlled delivery was arranged for July 29, 2010.

       On July 29, 2010, Kendra Kruger claimed the package. She opened the package while

sitting in her car, still in the post office parking lot. Police arrested her there and seized the

package. Forensic testing determined that it contained 54.3 grams of methamphetamine.
No. 14-2024
USA v. Kendra Kruger

       On July 30, 2010, the court released Kruger on bond, under pretrial services supervision,

subject to certain conditions, including her abstention from the use of illegal drugs. But, by her

own admission, Kruger continued to use methamphetamine while on pretrial services supervision.

       On August 18, 2010, the federal grand jury indicted Kruger on possession with intent to

distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(viii). Kruger entered a not-guilty plea and the parties prepared for a trial.

       On October 18, 2010, Kruger appeared for a change-of-plea hearing and entered a guilty

plea without a plea agreement. Her sentencing was scheduled for January 24, 2011. At the

conclusion of the plea hearing, the U.S. Marshals Service transported her directly to the Newaygo

County Jail. One week later, on October 25, 2010, deputies searched Kruger’s cell and found

contraband, including an MP-3 player, batteries, and four pills that appeared to be Xanax. Kruger

had smuggled the contraband into the jail inside a rubber cylinder hidden in her rectum or vagina.

Because she was transported directly from the change-of-plea hearing to the jail, she apparently

had this contraband in her possession (i.e., inside her person) at the hearing.

       On January 24, 2011, the district court sentenced Kruger to 51 months in prison and four

years of supervised release. While incarcerated, Kruger completed the Bureau of Prisons’

(BOP’s) Residential Drug Abuse Program (RDAP), which reduced her sentence by 12 months,

and she further reduced her sentence with good time credits. Consequently, the BOP released

Kruger from prison after approximately 33 months, subject to supervised release.

       On July 22, 2013, Kruger began her four-year term of supervised release under

low-intensity supervision. Despite being on supervised release, Kruger used methamphetamine

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USA v. Kendra Kruger

three times between October 1 and 18, 2013, less than three months after her release from prison.

The probation department reassigned her from “low intensity” to “regular” supervision and

advised her to participate in a substance abuse assessment, which was scheduled for December 23,

2013.

        On December 12, 2013, however, Kruger submitted a urine sample that tested positive for

methamphetamine.       Meanwhile, she missed three probation appointments, including the

substance-abuse assessment, and blamed her absences on an unspecified illness. On December

27, Kruger denied using methamphetamine, but on January 9, 2014, she recanted that denial, stated

that she had lied to the probation officer, and admitted to having used methamphetamine

approximately two days prior to the December 12 urine sample submission.

        On January 13, 2014, the probation office moved the court to modify Kruger’s conditions

of supervised release and order her to reside in a Residential Re-Entry Center (RRC) for nine

months, subject the rules and regulations of that center. Kruger signed a written agreement to the

modification sought in the motion and, on January 24, 2014, the court ordered the modification

without a hearing.

        Five months later, on two separate occasions, June 23 and 26, 2014, Kruger submitted

urine samples that tested positive for amphetamines. When questioned, she admitted to using

methamphetamine on both days, in violation of the RRC rules and the conditions of her supervised

release.




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USA v. Kendra Kruger

        On July 21, 2014, the probation office petitioned the district court to issue a warrant for

Kruger’s arrest. The court issued the warrant as requested.1 Meanwhile, the probation office

prepared a “Violation Worksheet,” which offered the court a preliminary guideline range of 4 to 10

months in prison and found that Kruger had failed to complete 6 months and 17 days of previously

imposed community confinement, which she was required to “serve[] in addition to the sanction”

of additional imprisonment. See U.S.S.G. § 7B1.3(d). This made the actual advisory range

10 months and 17 days to 16 months and 17 days. The Worksheet also noted that Kruger had

used methamphetamine on at least six occasions since her release from prison and the probation

office’s attempts at “graduated sanctions and ongoing substance abuse and mental health treatment

services” had been unsuccessful, which demonstrated the need for a more severe sanction.

        On August 11, 2014, the district court held a hearing on Kruger’s violation of her

supervised release. Kruger admitted to using methamphetamine as charged, and the court found

her guilty of those violations. The government sought a sentence above the advisory guidelines,

arguing that Kruger had repeated violations, that the graduated penalties had not worked, and that

Kruger was unrepentant and, instead, “extremely manipulative.” Defense counsel argued, and

Kruger allocuted, that she was simply an addict trying to come to terms with her addiction.

        The court rejected Kruger’s arguments, stating that “if she’s only now recognizing herself

as an addict, it’s several years too late,” and “this is a situation where we’ve gone well beyond


         1 On July 24, 2014, the probation office submitted to the court an amended petition for a warrant, which
included a charge that Kruger had failed to report her whereabouts while away from the RRC, in violation of the
RRC’s rule. Basically, Kruger had claimed to be at work on a work-release program, but for some portion of the time
had actually been meeting her mother for lunch or using a computer to research her mother’s cancer on the internet.
The court issued the amended warrant and this was included as a charge, but the government did not press it at the
re-sentencing hearing and the court did not appear to rely on it in deciding the new sentence.
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USA v. Kendra Kruger

simple addiction and relapse.” The court referenced the multiple incidents of her drug use, the

failure of the incremental sanctions, and Kruger’s apparent unwillingness to be forthright and fully

accountable. The court considered the applicable § 3553 factors and imposed a sentence of

18 months in prison, with certain conditions, followed by three years of supervised release.

       When the court offered each party the opportunity to object, defense counsel objected “to

the sentence outside the guidelines,” which prompted the following exchange:

       The Court:      All right. And from your perspective on the guidelines, you’d
                       acknowledge that from a guideline point of view the range is 4 to 10
                       months plus at least the six months and 17 days because that’s part
                       of the community confinement that would be built into the guideline
                       calculus?
       Counsel:        I do, Your Honor.
       The Court:      Okay. So it’s the portion above that?
       Counsel:        Yes, Your Honor.
       The Court:      Okay. I’m going to go ahead, then, and impose that as the sentence
                       of the Court as I announced my intent to do it for the reasons
                       indicated. I do think whatever variance there is above the
                       guidelines is relatively minimal and is appropriate to the individual
                       circumstances of the case. . . .

Thus, the court clarified that the upper end of the advisory range was 16 months and 17 days,

defense counsel expressly agreed with that clarification, and the court answered the objection from

that premise, concluding that the approximately 43-day variance “above the guidelines is

relatively minimal and is appropriate to the individual circumstances of the case.”

                                                II.

       In this appeal, Kruger claims that the 18 month sentence is substantively unreasonable.

As an initial matter, we note that Kruger’s counsel at sentencing remains her counsel on appeal and


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USA v. Kendra Kruger

he signed the brief filed in this appeal. This bears mention because in his brief, counsel asserts

that “the advisory guideline sentencing range was 4 to 10 months, and the sentence imposed

represents a 14 month increase from the bottom of the advisory range and an 8 month increase

from the top of the range.” That statement—the substance of which is repeated several times

throughout the brief—is, of course, factually incorrect.

       The truth of the matter is that Kruger’s 18-month sentence is actually a variance of a mere

43 days above the top of the advisory range. Kruger claims that this sentence is substantively

unreasonable because her circumstances were sufficiently ordinary to fall within the guidelines,

the court relied too heavily on her prior violations, and the court failed to fully consider many of

the other § 3553 factors in deciding the sufficiency of the sentence.

       We “review supervised release revocation sentences in the same way that we review all

other sentences—under a deferential abuse of discretion standard for reasonableness.” United

States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007) (quotation marks omitted). In reviewing

sentences for substantive reasonableness, we consider the totality of the circumstances, including

the extent of the variance from the Guidelines range. Id. at 581. Although we presume that

within-Guidelines sentences are reasonable, we do not presume “unreasonableness” of above-

Guidelines sentences. Id. And we give due deference to the district court’s conclusion that the

sentence it imposed was warranted in light of the § 3553 factors. Id.

       Here, the court clearly rejected Kruger’s claim that her circumstances were so ordinary

(typical of drug addiction and relapse) that even a 43-day upward variance would be unreasonable.

The court alluded to Kruger’s history of misconduct, including her use of methamphetamine while

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USA v. Kendra Kruger

on pretrial release and her smuggling of illegal drugs inside her person during her change-of-plea

hearing, as an indication that this was beyond ordinary. The court specifically identified Kruger’s

multiple post-release violations for continued drug use, despite the imposition of the incremental

sanctions, which serve as further evidence that Kruger would not or could not conform her conduct

to the law.    The court also commented on her testimony, as evidence of her apparent

unwillingness to be forthright and fully accountable. All told, the court expressly rejected

Kruger’s contention that this was simply addiction and relapse. Finally, the court considered the

applicable § 3553 factors and concluded that the variance was warranted to deter her from

committing further violations and to coerce her into some form of rehabilitation.

       We find here, as we have found elsewhere, that “the record establishes no cognizable basis

for second guessing the district court’s exercise of sentencing discretion and several reasons why it

deserves our respect.” United States v. Kontrol, 554 F.3d 1089, 1093 (6th Cir. 2009) (internal

citation omitted); see also United States v. Haywood, 75 F. App’x 474, 476 (6th Cir. 2003).

Based on our careful review of the record and considering all of the facts and circumstances

contained therein, we find no abuse of the district court’s sentencing discretion.

                                                III.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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