                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a1233n.06

                                          No. 12-5060                                 FILED
                                                                                   Nov 28, 2012
                             UNITED STATES COURT OF APPEALS                 DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )
v.                                                  )      ON APPEAL FROM THE
                                                    )      UNITED STATES DISTRICT
JARROD MILLS,                                       )      COURT FOR THE WESTERN
                                                    )      DISTRICT OF TENNESSEE
       Defendant-Appellant.                         )




       BEFORE: MARTIN and GRIFFIN, Circuit Judges; BECKWITH, District Judge.*


       PER CURIAM. Jarrod Mills appeals a district court judgment revoking his supervised

release. Because the thirty-six month sentence imposed by the district court is procedurally and

substantively reasonable, we affirm.

       In 1998, Mills pleaded guilty to conspiracy to manufacture with the intent to distribute 132

grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 121 months of

imprisonment, followed by five years of supervised release. That five-year period of supervised

release began on May 4, 2007.

       On June 8, 2011, the probation office petitioned the district court to issue a warrant for

Mills’s arrest and recommended revocation of his supervised release. According to the petition,



       *
         The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 12-5060
United States v. Mills

Mills had violated the conditions of his supervised release by committing the following offenses for

which he had been indicted by the State of Tennessee: (1) possession of cocaine with the intent to

manufacture, sell, and deliver; (2) possession of marijuana with the intent to manufacture, sell, and

deliver; and (3) possession of drug paraphernalia.

       After an evidentiary hearing, the district court concluded that the government had established

by a preponderance of the evidence that Mills had violated the conditions of his supervised release.

The district court then proceeded to sentencing, noting that Mills’s advisory sentencing guidelines

range was twenty-four to thirty months of imprisonment, and that the statutory maximum sentence

was sixty months of imprisonment. Both parties recommended a sentence of twenty-four months

of imprisonment. In support of that sentence, Mills asserted that, because his original sentence was

imposed prior to the enactment of the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111–120, 124

Stat. 2372, he had served more time than someone would currently serve for the same offense. He

also asserted that the district court should consider the changes in the crack cocaine sentencing laws

since his original sentencing. After considering the relevant sentencing factors under 18 U.S.C. §

3553(a), see 18 U.S.C. § 3583(e), the district court concluded that a sentence of thirty-six months

of imprisonment was appropriate because of the similarity between Mills’s original drug offense, his

violation conduct, and “the fact that apparently not much was beneficially learned.”

       In this timely appeal, Mills challenges his thirty-six month sentence. We review a sentence

imposed upon revocation of supervised release “‘under a deferential abuse-of-discretion standard,’”




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No. 12-5060
United States v. Mills

for procedural and substantive reasonableness. United States v. Bolds, 511 F.3d 568, 578 (6th Cir.

2007) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).

        Mills argues that his sentence was procedurally unreasonable because the district court failed

to adequately explain its deviation from the guidelines range. Mills actually complains about the

district court’s reason for the deviation rather than the adequacy of its explanation, asserting that

“upward variances are reserved for those who have inadequate criminal history scores, those who

received a downward adjustment in their original sentence, and those who repeatedly violate

supervised release.” While the guidelines’ policy statements specifically mention these justifications

for deviating from the guidelines range in imposing a sentence upon revocation of supervised release,

see, e.g., USSG § 7B1.4, cmt. nn.2 & 4, nothing restricts the district court’s discretion to these three

reasons.

        The record reflects that the district court “adequately explain[ed] the chosen sentence” and

provided “an explanation for [the] deviation from the Guidelines range.” Gall, 552 U.S. at 51. After

discussing the relevant § 3553(a) factors, including the nature and circumstances of Mills’s original

offense and its similarity to the violation conduct as well as the need to afford adequate deterrence

and to protect the public, the district court gave a specific reason for deviating from the guidelines

range. Thus, district court complied with its duty to explain the deviation from the guidelines range

and imposed a procedurally reasonable sentence. See United States v. Johnson, 640 F.3d 195,

207–08 (6th Cir. 2011).

        In support of his argument that his sentence was substantively unreasonable, Mills contends

that the district court rejected his policy argument regarding the FSA based on incorrect assumptions

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United States v. Mills

and that the sentence imposed was therefore arbitrary. After the district court pronounced the thirty-

six month sentence, Mills reiterated his argument that he would have received a lower sentence

under the FSA, asserting that “it is called the Fair Sentencing Act because in the past, it was unfair.”

In rejecting Mills’s argument, the district court stated:

        It is called the Fair Sentencing Act because somebody put that label on the statute.
        It is not called the Fair Sentencing Act because crack cocaine is not a bad thing.
        Crack cocaine destroys this community. If you want to see one substance that has the
        greatest impact in destroying Memphis, Tennessee and the young people in
        Memphis, Tennessee, it’s crack cocaine, and it’s hard to pick out one thing in
        Memphis because you have got so many things competing for it. You know, we have
        got a meth problem, we have got a new and rising heroin problem. We have all sorts
        of problems with Oxycontin and all those materials, so those are bad, but the one
        thing that seems to be absolutely the most pervasive is crack.

        Mills argues that the district court’s statements are “outdated and incorrect,” but cites no data

regarding drug abuse in Memphis. The district court did not rely on the discredited assumptions

regarding the relative harmfulness of crack and powder cocaine which formed the basis of the

sentencing disparity between crack and powder cocaine offenses. See Kimbrough v. United States,

552 U.S. 85, 95–98 (2007). Given that the district court considered the relevant § 3553(a) factors and

addressed Mills’s policy argument, the district court’s sentencing determination was not arbitrary.

        The district court’s judgment is affirmed.




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