                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0620n.06

                                            No. 11-5974                                     FILED

                           UNITED STATES COURT OF APPEALS
                                                                                       Jun 13, 2012
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE
v.                                                    )      UNITED STATES DISTRICT
                                                      )      COURT FOR THE EASTERN
GERALD D. STURGILL,                                   )      DISTRICT OF KENTUCKY
                                                      )
       Defendant-Appellant.                           )
                                                      )



       BEFORE: KEITH, BOGGS, and MOORE, Circuit Judges.


       PER CURIAM. Gerald D. Sturgill appeals through counsel a district-court judgment

revoking his supervised release and sentencing him to twelve months of imprisonment.

       In 2009, Sturgill entered a guilty plea to a charge of conspiring to distribute oxycodone. He

was sentenced in 2010 to three months of imprisonment, based on a downward departure for

cooperation with the government, and two years of supervised release.

       In 2011, Sturgill was charged with violating terms of his supervised release that prohibited

him from committing another crime, lying to his probation officer, and associating with criminals.

A preliminary hearing was held before a magistrate judge. There, Sturgill’s probation officer

testified that, during a visit to Sturgill’s home, he found notes, computer searches, and cell phone

texts demonstrating that Sturgill was selling pain relievers. Sturgill also told the probation officer

that his pain-medicine prescription had been stolen, but the probation officer soon found the bottles,

although with far fewer pills left than indicated by the date of the prescription. Finally, evidence
No. 11-5974
United States v. Sturgill

suggested that Sturgill’s son, who occasionally lived with Sturgill, had been selling controlled

substances and that Sturgill was aware of this. The magistrate judge determined that there was

probable cause to believe that Sturgill had violated his supervised release conditions. A hearing was

then held before the district judge. Sturgill admitted violating the three provisions above. The

parties had agreed to a sentence of twelve months of imprisonment. The district court found this

sentence sufficient and adopted it.

       On appeal, Sturgill argues that there was an insufficient factual basis to find him guilty of

violating his supervised release, and that the sentence is unreasonable.

       A party cannot agree to a course of action in the district court and then challenge it as error

on appeal. United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002). Sturgill admitted

that he violated the conditions of his supervised release. Therefore, he cannot argue that there was

an insufficient factual basis to find that he committed the violations.

       We review the sentence imposed upon a revocation of supervised release for reasonableness

under an abuse-of-discretion standard. See United States v. Polihonki, 543 F.3d 318, 322 (6th Cir.

2008). Because Sturgill did not challenge the sentence below, his procedural issues are reviewed

for plain error. See United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005). Sturgill argues that

his sentence is procedurally unreasonable because the district court did not have a new presentence

report prepared, mention the guideline range, or consider the relevant sentencing factors. See Gall

v. United States, 552 U.S. 38, 51 (2007); United States v. Sedore, 512 F.3d 819, 822-23 (6th Cir.

2008). However, the original presentence report was very recent and Sturgill admits that his

situation had not changed. Furthermore, both the supervised-release-violation report and the

magistrate judge stated a guideline range of twelve to eighteen months, with a statutory maximum

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No. 11-5974
United States v. Sturgill

of twenty-four months. The district court can be presumed to have considered this information. See

Polihonki, 543 F.3d at 324. Finally, review of the sentencing transcript shows that the district court

did consider the relevant sentencing factors. Sturgill also attacks the substantive reasonableness of

his sentence for violating his release conditions, noting that it is four times longer than his original

sentence. Again, because this was the sentence Sturgill agreed to below, he may not challenge it on

appeal. See Aparco-Centeno, 280 F.3d at 1088.

        For all of the above reasons, the district court’s judgment is affirmed.




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