               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0119n.06

                                          No. 12-5145                              FILED
                                                                                 Jan 31, 2013
UNITED STATES OF AMERICA,                   )                            DEBORAH S. HUNT, Clerk
                                            )
              Plaintiff-Appellee,           )
                                            )       ON APPEAL FROM THE
v.                                          )       UNITED STATES DISTRICT
                                            )       COURT FOR THE WESTERN
CALVIN RENE CALHOUN, JR.                    )       DISTRICT OF TENNESSEE
                                            )
              Defendant-Appellant.          )
                                            )

BEFORE: MARTIN, SUHRHEINRICH and GIBBONS, Circuit Judges.

       PER CURIAM. Defendant Calvin Calhoun, Jr., appeals his sentence following his guilty

plea to one count of bank robbery by force or violence in violation of 18 U.S.C. § 2113(a). We

AFFIRM, except as to a condition of supervised release. We remand so that the district court may

amend the written judgment to delete that condition, thus conforming the judgment to the oral

sentence pronouncement.

                                        I. Background

       On January 18, 2011, Defendant robbed the Regions Bank, located at 4643 Riverdale,

Memphis, Tennessee. He approached a teller and handed her a note which stated: “Give me all the

fucking money and don’t say a word or you will die!!!!” In response, the teller gave Defendant

$4,259.50, along with a dye pack. The dye pack exploded after Defendant left the bank. He was

quickly located and arrested. The total amount of loss to the bank was $4,259.50, because most of

the money was burned by the dye pack.

       Defendant was released on a $10,000 unsecured bond. He fled the jurisdiction and was later

arrested in Houston, Texas, and returned to the Western District of Tennessee.
        Defendant pleaded guilty and a presentence report (“PSR”) was prepared. The PSR set

Defendant’s base offense level at 20 pursuant to U.S.S.G. § 2B3.1; added two points because

property of a financial institution was taken, U.S.S.G. § 2B3.1(b)(1); added another two points

because a death threat was made, U.S.S.G. § 2B3.1(b)(2)(F); and added two points for obstruction

of justice, U.S.S.G. § 3C1.1; resulting in a total offense level of 26. Defendant received one criminal

history point for two convictions for identity theft, resulting in a criminal history category of I. The

resulting advisory guidelines range was 63 to 73 months.

        Defendant objected to the PSR’s failure to adjust the calculated guidelines range for

acceptance of responsibility, arguing that this was “one of those rare cases where” obstruction of

justice and acceptance of responsibility applied. He made no other objections.

        Both Defendant and his father spoke at sentencing. Defendant’s father stated that Defendant

had been a “wild child” and had run away in the past, but seemed to have grown up since he had

been incarcerated. R. 51 Page ID# 88-90. Defendant told the court that “this experience,” the

incarceration, “ha[d] been a true wake-up call.” R. 51 Page ID# 95.

        The district court addressed the objection at the sentencing hearing. The Government agreed

that both acceptance of responsibility and obstruction of justice applied, and also made a motion that

a third point for acceptance be subtracted from the total. The district court agreed and reduced the

guideline calculation to 23, which resulted in a sentencing range of 46 to 57 months. The court

imposed a sentence of 52 months, and restitution in the amount of $4,259.00, to be paid by assigning

10% of Defendant’s gross income each pay period. Both parties indicated that they had no

objections to the sentence imposed.

        Defendant appeals.


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                                             II. Analysis

                                         A. Reasonableness

        Defendant claims that the district court imposed a substantively unreasonable sentence it

“gave too much weight to the fact that the instant offense was a bank robbery,” and “gave an

unreasonably low amount of weight to the government’s recommendation of leniency by giving it

no weight at all.” Appellant’s Br. at 9–10.1

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

standard. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (citing Gall v. United States, 128

S.Ct. 586 (2007)) (rest of citation omitted). A sentence is substantively unreasonable if “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) (citation omitted). A properly

calculated, within-guidelines sentence is subject to a rebuttable presumption of reasonableness on

appeal. Id. (citation omitted).

        Defendant claims that the district court gave too much weight to the fact that the instant

offense was a bank robbery, citing the following statements: (1) “The penalty, however, for bank

robbery is always going to be, unless there’s some remarkable set of facts, is always going to be a

period of incarceration.” R. 51 Page ID# 101 (2) “A sentence of four or five years would typically



        1
          Defendant also argues that the district court did not appear to recognize its authority to vary
downward. As the Government points out, this is a procedural unreasonableness claim. See United
States v. Mitchell, 681 F.3d 867, 880 (6th Cir. 2012). A plain error standard applies because
Defendant failed to object when given the opportunity by the district court. See United States v.
Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). We find no indication in the record that the
district court misunderstood its authority to depart.

                                                   3
be enough to discourage others.” Id. 102. Defendant claims that these statements indicate that the

court treated this as a typical bank robbery, instead of recognizing that this was an “atypical unarmed

bank robbery with no injuries, the money was immediately recovered and the defendant immediately

confessed.” Appellant’s Br. at 9. Defendant claims the district court gave no weight to the

Government’s recommendation that a sentence should be at the low end of the guidelines.

        This argument distorts the proceedings below. The district court made the first statement in

the context of discussing 18 U.S.C. § 3553(a)(2)(A) (stating that the court is to consider “the need

for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense”). The district court observed that a bank robbery “is

a traumatic event no matter how” it is characterized. R. 51 Page ID# 101. The court also found that

while this robbery might not be as traumatic as others, it was “clearly upsetting,” and was observed

by more than one teller. Id. The district court made the second statement during its discussion of

§ 3553(a)(2)(B) (stating that court shall consider the need for the sentence imposed “to afford

adequate deterrence”).

        The record reflects that the court made these statements as part of its consideration of the

variety of factors required by § 3553(a), before fashioning the sentence. First, it looked at the nature

and circumstances of the offense as required by § 3553(a)(1). See R. 51 Page ID# 97 (“Now, the first

thing we look at is what was done and couple of other things, of course.”). The court discussed the

history and characteristics of the defendant, see § 3553(a)(1). R. 51 Page ID# 98. The court

remarked that “[t]here is a lot of information in connection with the psychiatric evaluation,” taking




                                                   4
into account what Defendant and his father told the court at sentencing. R. 51 page ID# 96-97.2 The

district court noted that although it appeared Defendant had been diagnosed with depression, the

medical history and evaluations raised many questions. R. 51 Page ID# 99. The court also looked

at rehabilitation, as required by § 3553(a)(2)(D), finding that Defendant would need some mental

health counseling, and requiring that he obtain a GED and vocational training. R. 51 Page ID# 103.

The court recommended that Defendant be placed in a facility where his mental health condition

could be properly treated. R.51 Page ID# 107-08. “[T]his analysis of the considerations the court

found most important . . . is just the sort of balancing a sentencing court should be doing.” United

States v. Paull, 551 F.3d 516, 529 (6th Cir. 2009). See also United States v. Vonner, 516 F.3d 382,

392 (6th Cir. 2008) (en banc) (“[T]he central lesson [of recent Supreme Court activity is] that district

courts ... deserve the benefit of the doubt when we review their sentences and the reasons given for

them.”). In short, Defendant has failed to rebut the presumption of reasonableness.

                                       B. Supervised Release

        Defendant asserts that the district court erred when it included an additional condition of

supervised release in the written judgment that was not part of the sentence orally pronounced at the

sentencing hearing. The following condition of supervised release was not mentioned at sentencing:

        The defendant shall be prohibited from incurring new credit charges, opening
        additional lines of credit, or making an obligation for any major purchases without
        prior approval of the Probation Officer.

        R. 47 Page ID# 69 ¶ 3.


       2
        On June 13, 2011, the district court ordered a mental evaluation of Defendant. PSR ¶ 43.
The medical examiner noted numerous instances of attention-seeking and manipulative behaviors,
as well as inconsistent reporting of symptoms. Id. The report stated that Defendant presented
“several hallmark signs of feigning,” and diagnosed Defendant as a malingerer with borderline
personality disorder.

                                                   5
       We review challenges to a condition of supervised release for abuse of discretion. United

States v. Inman, 666 F.3d 1001, 1004 (6th Cir. 2012) (per curiam). This involves determining

“whether the district court adequately stated in open court at the time of sentencing its rationale for

mandating special conditions of supervised release.” Id. (internal quotation marks and citation

omitted). The general rule is that “when an oral sentence conflicts with the written sentence, the oral

sentence controls.” United States v. Swanson, 209 F. App’x 522, 524 (6th Cir. 2006) (internal

quotation marks and citation omitted). Standard conditions of supervised release are deemed

included in the oral sentence, unless the district court specifically states otherwise. Id. This court

has not decided whether the court must recite special conditions at the sentencing hearing, see id.

at 524 n.3, but other courts have required that special conditions be included in the oral

pronouncement, see, e.g., United States v. Jones, 696 F.3d 932, 938 (9th Cir. 2012); United States

v. Cruz-Nagera, 454 F. App’x 371, 371 (5th Cir. 2011) (per curiam).

       We do not need to resolve this question because the Government “submits that imposing the

special condition as part of the judgment, when the court failed to address the special condition as

part of its oral pronouncement of sentence, constituted an abuse of discretion in the present case,”

and asks that the matter be remanded to amend the written judgment to conform with the oral

pronouncement. Appellee’s Br. at 17.

                                           C. Restitution

       Next, Defendant contends that the district court erred when it imposed restitution, because

the money was recovered by the bank. In support, Defendant cites paragraph 8 of the PSR, which

states that “Safe Streets did recover the money but most was burnt from the dye pack.” Defendant

therefore claims that there was no loss to the bank because, (1) undamaged money was returned to


                                                  6
the bank; (2) “burnt” money, which would be considered mutilated, was returned to the bank; and

(3) “burnt” or dye money, which would be considered unfit, was returned to the bank; and all three

types of money can be exchanged at face value pursuant to Treasury Regulation 31 C.F.R. 100.5.3

Thus, the requirements of 18 U.S.C. § 3663A(b) were satisfied. See 18 U.S.C. § 3663A(b) (stating

that the order of restitution “shall require that such defendant–in the case of an offense resulting in

damage to or loss or destruction of property of a victim of the offense . . . return the property to the

owner”). Defendant therefore claims that the bank was allowed to recover twice, and “actually make

a profit off the bank robbery.”




       3
           31 C.F.R.§ 100.5 Mutilated paper currency.

        (a) Lawfully held paper currency of the United States which has been mutilated will
        be exchanged at face amount if clearly more than one-half of the original whole note
        remains. Fragments of such mutilated currency which are not clearly more than
        one-half of the original whole note will be exchanged at face value only if the
        Director, Bureau of Engraving and Printing, Department of the Treasury, is satisfied
        that the missing portions have been totally destroyed. The Director’s judgment shall
        be based on such evidence of total destruction as is necessary and shall be final.

                                                Definitions

        (1) Mutilated currency is currency which has been damaged to the extent that (i)
        one-half or less of the original note remains or (ii) its condition is such that its value
        is questionable and the currency must be forwarded to the Treasury Department for
        examination by trained experts before any exchange is made.


        (2) Unfit currency is currency which is unfit for further circulation because of its
        physical condition such as torn, dirty, limp, worn or defaced. Unfit currency should
        not be forwarded to the Treasury, but may be exchanged at commercial banks.

31 C.F.R. § 100.5.



                                                    7
        Under the Treasury Regulation, a person or entity would be entitled to receive full value for

mutilated currency if it presents more than one-half of the original note to the Department of the

Treasury. 31 C.F.R. § 100.5. Furthermore, the Mandatory Victim Restitution Act requires

restitution to be reduced by the value of the returned property on the date the property was returned.

18 U.S.C. § 3663A(b)(1)(B)(ii).

        The problem is that Defendant did not challenge the restitution order in the district court.

United States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011) (“If a party does not object at

sentencing to the restitution order, then the order is also reviewed under the plain-error standard.”).4

This means that, on this record we do not know what condition the money was in after it was

recovered, and therefore how much, if any, was redeemable with the Department of the Treasury.

“A party may not by-pass the fact-finding process of the lower court and introduce new facts in its

brief on appeal.” United States v. Bond, 12 F.3d 540, 552 (6th Cir. 1993) (internal quotation marks

and citation omitted). And we do have a “fact” statement in the PSR that the “Total Loss” to the

bank was “$4,259.50.” Thus, we cannot find plain error on this record.

                                      D. Restitution Amount

        Lastly, while acknowledging that the issue is “almost absurd,” Defendant complains that the

district court erred because the restitution amount in the written judgment exceeds the amount

ordered by the district court at sentencing by fifty cents ($4,259.50 vs. $4,259.00).




        4
         “To establish plain error, a defendant must show that: (1) an error occurred in the district
court; (2) the error was obvious or clear; (3) the error affected defendant’s substantial rights; and (4)
this adverse impact seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006).

                                                   8
       Again, Defendant did not object at sentencing, despite having been given the opportunity by

the district court. But since the amount is minuscule, and we are remanding anyway, we ask the

district court to correct the written judgment to comply with its oral pronouncement.

                                         III. Conclusion

       Defendant’s sentence is AFFIRMED in part; and the case is REMANDED so that the district

court can strike special condition 3 of supervised release from the written judgment and correct the

amount of restitution to make the judgment conform to the court’s oral pronouncement of the

sentence.




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