               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0512n.06
                            Filed: July 19, 2007

                                          No. 06-2159

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                ON APPEAL FROM THE
                                       )                UNITED STATES DISTRICT
v.                                     )                COURT FOR THE EASTERN
                                       )                DISTRICT OF MICHIGAN
DONNIE D. YOUNGER,                     )
                                       )
      Defendant-Appellant.             )                        OPINION
                                       )
_______________________________________)


Before: MOORE and GILMAN, Circuit Judges, and FORESTER,* District Judge.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Donnie D. Younger

(“Younger”) appeals the sentence imposed upon the revocation of his probation, on the ground that

it is substantively unreasonable. For the reasons set forth below, we AFFIRM the sentence.

                                      I. BACKGROUND

       Younger was convicted of mail theft in violation of 18 U.S.C. § 1709 and sentenced on

September 28, 2005 to a two-year term of probation, including sixty days’ home confinement, and

ordered to pay a special assessment of $100. The conditions of his probation required Younger to

refrain from using controlled substances, submit to periodic drug testing, and, if required by the

probation department, participate in a substance-abuse program. Younger subsequently tested

       *
       The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
positive for cocaine on several urine tests, and accordingly, on December 22, 2005, in accordance

with the parties’ joint motion, the district court imposed an additional condition requiring Younger

to reside at a community corrections center for 120 days and participate in substance-abuse

counseling there.

       On June 22, 2006, after completing the counseling program, Younger once again tested

positive for cocaine. The district court issued a warrant for his arrest on July 19, 2006, and, on

August 9, 2006, ordered him held without bond pending revocation of his probation. On August 22,

2006, the district court held a revocation hearing, at which defense counsel requested that Younger

be sentenced to a term of imprisonment of fifteen days, which was the amount of time he had already

served while awaiting the hearing, despite the fact that the advisory Guidelines range for Younger’s

violation was six to twelve months. Counsel for the United States requested an upward variance to

a sentence of twenty-one months’ imprisonment, which would render Younger eligible for custodial

substance-abuse treatment.

       At the conclusion of the hearing, the district court found Younger to have violated the

conditions of his release, revoked his probation, and sentenced him to twenty-one months’

imprisonment, two years of supervised release subject to various conditions, and costs. In

pronouncing the sentence, the district court stated its reasoning, as follows:

               [I]t seems to me that you could benefit from a long[-]term inpatient substance
       abuse treatment program. Now in order to get that for you, it’s required that there be
       a minimum custody term of 21 months. And—so that you’d be eligible to participate
       in the prison system’s 500[-]hour comprehensive drug treatment program. And it
       seems to me that that’s appropriate in your situation given your . . . drug problem
       here.
               Accordingly, . . . the sentence imposed by the Court on this matter on your
       conviction of violating your condition of probation, and I do find that you have



                                                  2
       violated. You are guilty by your own admission of violating your condition of
       probation.
               Under those circumstances it’s the judgment of this Court that your probation
       status is revoked and pursuant to the Sentencing Reform Act of 1984, it’s the
       judgment of this Court that you’ll be committed to the custody of the United States
       Bureau of Prisons for a term of 21 months.
               A sentence in this case above the suggested guideline imprisonment range is
       being imposed because it would make you eligible to participate in the 500[-]hour
       comprehensive drug treatment program. If I sentence you within the guideline range,
       then you wouldn’t be eligible for that program and I think you need that program
       quite frankly. I also strongly recommend that you be designated to serve your
       sentence in a facility in which you can participate in the 500[-]hour comprehensive
       drug treatment program.

Joint Appendix (“J.A.”) at 50-51 (Revocation Hr’g Tr. at 28-29). Younger now appeals.

                                         II. ANALYSIS

A. Standard of Review

       Prior to the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), we reviewed sentences imposed during revocations of supervised release for “plain

unreasonableness.” United States v. McClellan, 164 F.3d 308, 309 (6th Cir. 1999) (“We will affirm

a district court’s sentence of imprisonment upon revocation of supervised release1 if it shows

consideration of the relevant statutory factors and is not plainly unreasonable.”). As we noted last

year in United States v. Soto, however, many of our sister circuits have since concluded that Booker

replaced that standard with one of “reasonableness.” 189 F. App’x 470, 471 n.2 (6th Cir. 2006)

(collecting cases). In this case, as in Soto, we decline to determine whether Booker dictates a new




       1
         The relevant Sentencing Guidelines policy statement treats probation revocation and
revocation of supervised release identically. See U.S. SENTENCING GUIDELINES MANUAL §§ 7B1.3,
7B1.4 (2004); see also United States v. Yopp, 453 F.3d 770, 773 n.3 (6th Cir. 2006) (“The Chapter
Seven policy statements are used during a supervised release revocation hearing in a manner similar
to the advisory Guidelines at sentencing.”).

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standard, because we conclude that the sentence imposed by the district court is reasonable under

either formulation. Id.

       The Supreme Court recently clarified the manner in which we are to review sentences for

substantive reasonableness under Booker. In Rita v. United States, the Court held that we may

choose to apply a presumption of reasonableness to a within-Guidelines sentence. 127 S. Ct. 2456,

2462 (2007). The Rita Court reasoned that such a sentence reflects the agreement of both the

Sentencing Commission and the district judge as to the appropriate length of incarceration for a

defendant convicted of a particular crime. Id. at 2464-65. Given that agreement, the appellate

“presumption” of reasonableness is akin to a prediction that, where two expert authorities are in

agreement, they are likely to be correct.

       Put another way, “the sentencing statutes envision both the sentencing judge and the

Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at

wholesale.” Id. at 2463. The Commission, in establishing the generally applicable, “wholesale”

Guidelines, is prescribing what it believes to be the appropriate sentence for what might be called

a typical offender, with a particular set of characteristics, convicted of a particular crime. The

sentencing judge then makes the “retail” determination whether an individual defendant is typical.

Viewed in this light, the appellate “presumption” of substantive reasonableness is simply our

acknowledgment of this congruence.

       In this case, the sentence imposed by the district court is greater than the Guidelines

maximum and is not, therefore, entitled to any appellate presumption of reasonableness. As the Rita

Court took care to note, however, no federal appellate court has ever held, nor did either party in Rita

argue, that non-Guidelines sentences are presumptively unreasonable. Id. at 2467. Indeed, we have


                                                   4
held that no presumption of any kind attaches to non-Guidelines sentences. United States v.

Foreman, 436 F.3d 638, 644 (6th Cir. 2006).

B. Younger’s Sentence

       In arguing that the district court’s upward variance was substantively unreasonable, Younger

relies heavily upon our opinion in United States v. Yopp, 453 F.3d 770 (6th Cir. 2006). The district

court in Yopp premised its sentencing decision upon the defendant’s need to participate in the same

500-hour drug treatment program at issue here. Id. at 772. That court had been advised by the

probation office that the program itself was nine months long and that three additional months might

be required for preparatory screening. Id. The probation office went on, however, to recommend

a twenty-four-month sentence, which the district court subsequently imposed:

       Mr. Yopp . . . was on a downward spiral. He has both mental health and substance
       abuse problems, and the only thing that will rescue him, in the Court’s view, from a
       disaster is if he gets in-house treatment and that can best be accomplished by him
       [sic] going into the Bureau of Prisons’ 500-hour program. To do that, it requires a
       sentence of 24 months, according to the probation officer’s recommendation. That
       would give him enough time to get in, have the Bureau assess his condition, and
       allow for his participation in a program. Anything short of that is a recipe for
       personal disaster, so the Court will give you custody with the Bureau of Prisons for
       a term of 24 months.

Id. at 772 & n.2 (alteration in original) (internal quotation marks omitted). Yopp’s counsel objected

on the ground that a twelve-month sentence would be sufficient to allow Yopp to participate in the

program, but the district court refused to reconsider its sentence, stating that “there’s no way it can

be done in 12 months.” Id. at 772 (internal quotation marks omitted).




                                                  5
       On appeal, we vacated Yopp’s sentence, which we noted was both procedurally2 and

substantively3 unreasonable:

                [T]hat some district courts might have simply sentenced Yopp with far less
       thought and consideration than the dedicated district judge below does not render the
       sentence reasonable. The sole purpose of the sentence imposed, as articulated by the
       district court, was for Yopp to obtain mental health and substance abuse treatment.
       As discussed earlier, the district court stated emphatically that it was sentencing
       Yopp to twenty-four months of imprisonment so that he could participate in the
       500[-]hour drug treatment program. The period of twenty-four months, however,
       was calculated by adding the following: three months to designate and screen Yopp’s
       needs and nine months for the actual program. This, of course, only adds up to
       twelve months. The probation officer also recommended that Yopp spend six
       months in a Community Corrections Center, i.e., a halfway house, but the district
       court rejected this recommendation by stating that it did not believe Yopp would
       benefit from such an environment.
                Even adding these six months to the calculation, that still only adds up to
       eighteen months. It is possible, of course, that the district court also believed that
       additional punishment was necessary based on one or more of the section 3553(a)
       factors. Evidence of such reasoning, however, does not appear in the record for our
       review.

Id. Our conclusion in Yopp, then, was that the district court’s sentence was substantively

unreasonable because it did not comport with the district court’s own statement of reasons for

selecting the sentence and was therefore greater than necessary to achieve the purposes of sentencing.

       In this case, however, the record is devoid of any evidence or suggestion that anyone disputed

the fact that—as the district court expressly found—twenty-one months was the minimum sentence


       2
         We held the sentence procedurally unreasonable because the district judge failed to consider
the policy statements set forth in Chapter Seven of the Sentencing Guidelines. 453 F.3d at 772-73.
       3
         We note that Yopp’s discussion of substantive reasonableness was linked directly to the
procedural problems with the district judge’s sentencing. 453 F.3d at 774 (“As we conclude that the
district court erred by not considering the policy statements, we need not reach the question of
whether the sentence was unreasonable in light of the statutory factors. Nevertheless, because we
believe that the sentence is also substantively unreasonable, we therefore address the argument.”).
After discussing the length of the sentence in Yopp, we concluded that the sentence was greater than
necessary in light of the factors discussed by the district judge. Id.

                                                  6
necessary to render Younger eligible to participate in the 500-hour treatment program. J.A. at 50

(Revocation Hr’g Tr. at 28). We decline to overturn that finding, particularly on the basis of a report

made by a probation officer in a different case one year earlier. Even assuming that that report was

accurate when made, both the structure of the drug-treatment program and the screening and

diagnostic procedures that must precede it may have changed significantly in that time. Accordingly,

because the district court’s sentence is consistent with its statement of the facts and reasoning

underlying its decision, we hold that the sentence does not suffer from the flaws found in Yopp.

Under these circumstances, we cannot say that the twenty-one-month sentence fails to comply with

the requirement that a sentence be “sufficient, but not greater than necessary, to comply with the

purposes” of sentencing. 18 U.S.C. § 3553(a).

                                        III. CONCLUSION

       For the reasons set forth above, the sentence imposed by the district court is AFFIRMED.




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