                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0275n.06

                                         Case No. 18-4046

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                   May 18, 2020
                                                                               DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE NORTHERN DISTRICT OF
CALVIN MCPHERSON,                                    )       OHIO
                                                     )
       Defendant-Appellant.                          )


       BEFORE: MERRITT, THAPAR, and READLER, Circuit Judges.

       CHAD A. READLER, Circuit Judge. Calvin McPherson appeals his statutory maximum

sentence for multiple violations of his terms of supervised release. McPherson admitted to those

violations, but now argues his admissions were not knowing and voluntary. He likewise finds

error in the district court allegedly considering pending charges in imposing his sentence. Seeing

no plain error in the proceeding below, we AFFIRM the judgment of the district court.

                                       I. BACKGROUND

       While on supervised release following a prison term for bank fraud, McPherson twice

tested positive for drug use. Those violations led the district court to order McPherson to reside at

Oriana House, a drug treatment facility, for a period of therapy. Unfortunately, McPherson

violated this order as well, leaving Oriana House after just two days.
Case No. 18-4046, United States v. McPherson


       These events, it turned out, were just the tip of the illegality iceberg. Before an initial

hearing could be held on his supervised release violations, McPherson was arrested multiple times.

The first arose out of a traffic stop by officers in Willoughby Hills. Smelling marijuana in the

vehicle, the officers questioned the passengers. McPherson, who was one of the passengers,

identified himself by using the name and date of birth of his brother, Charles. McPherson was

then arrested for outstanding warrants in his brother’s name. A small bag of cocaine was found in

a cup holder in the vehicle, and loose marijuana was found throughout the vehicle. McPherson

told officers that the crack cocaine was his. Once McPherson’s fingerprints were processed,

officers discovered his true identity—and that he had a federal warrant out for his arrest.

McPherson was later charged with possession of crack cocaine, identity fraud, and forgery.

       McPherson was arrested again a few months later in Cuyahoga County. At the time of his

arrest, McPherson was in possession of a semi-automatic firearm. He again made false statements

about his identity. Following charges of carrying a concealed weapon, having weapons while

under disability, and falsification, McPherson pled guilty to the latter two offenses. He was

sentenced to a two-year period of “community control supervision.”

       McPherson’s crime spree continued. Less than two weeks later, he was arrested again in

Cuyahoga County. Upon running McPherson’s name, officers discovered an active warrant for

his arrest related to a later-dismissed domestic violence charge.        As officers questioned

McPherson, they noticed him laboring to conceal something in his mouth. McPherson then spat

out a small bag of crack cocaine. McPherson later pled guilty to drug possession in Cuyahoga

County.




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Case No. 18-4046, United States v. McPherson


        Days later, McPherson made an initial appearance before a federal magistrate judge

regarding his original supervised release violation, leaving his court-ordered drug treatment at

Oriana House. McPherson was provided with a copy of the report outlining the violation. The

report explained that McPherson faced a maximum 36-month prison sentence if his supervised

release was revoked. McPherson’s attorney verified that McPherson had reviewed the report and

understood the nature of the allegations detailed in it. The district court also explained the violation

to McPherson and verified that he understood the allegations. McPherson then admitted to the

violation.

        A month later, a final revocation hearing was held. A few days before the hearing, a

superseding violation report had been issued by the Probation Department outlining McPherson’s

additional violations. The report detailed the pending charges in Willoughby Municipal Court, as

well as the numerous charges in Cuyahoga County to which McPherson had pled guilty. At the

hearing, the details of these alleged violations were read in open court. The district court asked

McPherson how he wished to proceed on the alleged violations in Cuyahoga County—excluding

at that point the pending charges in Willoughby Hills. McPherson admitted to the violations in

Cuyahoga County, and did not address the Willoughby Hills charges.

        Although the Guidelines calculation recommended a sentence of up to 27 months, the

government sought the statutory maximum: 36 months’ imprisonment due to McPherson’s

“egregious violations.” After giving a detailed description of all of McPherson’s violations, the

government noted that McPherson, despite his many chances, was “back violating and ha[d] a

pending charge in Willoughby.” The government referred to this offense as one McPherson

“committed allegedly.”




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Case No. 18-4046, United States v. McPherson


         Accepting the government’s recommendation, the district court sentenced McPherson to

the statutory maximum of 36 months, finding the Guidelines range “completely insufficient” for

McPherson’s flagrant and repeated violations. While reciting a laundry list of reasons why

McPherson deserved the statutory maximum, the district court made two brief references to the

pending charges in Willoughby Hills. The first was in the context of chastising McPherson for his

continued criminal conduct: “Obviously you continued to be involved in criminal behavior: The

pending charges, possession of crack, identity fraud, forgery, in Willoughby Municipal Court, and

of course your recent convictions that we just heard about.” The second occurred when the court

highlighted McPherson’s use of his brother’s name as an alias: “And getting back to identity fraud,

lying about who you are, giving your brother’s name. You can’t admit that, you can’t man up to

that.”

         After imposing sentence, the district court gave McPherson an opportunity to make any

comments or objections. None were made. McPherson filed a timely appeal.

                                         II. ANALYSIS

         McPherson raises two issues on appeal: one, whether alleged procedural defects in his

revocation hearing mean his admissions were not knowing and voluntary, and two, whether

statements made by the district court concerning McPherson’s pending charges in Willoughby

Hills rendered the ensuing sentence procedurally unreasonable. McPherson, however, did not

object in any respect during the proceedings below. When a party fails to object before the district

court, that court is denied the opportunity expressly to consider the course of action preferred by

that party. In that sense, we deem that party—here McPherson—to have forfeited the opportunity

to challenge the procedures used in his hearing. See United States v. Aguirre, 605 F.3d 351, 356

(6th Cir. 2010).



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Case No. 18-4046, United States v. McPherson


       This is not the end of the road for McPherson, however. A forfeited challenge is not

foreclosed, but it does face an uphill climb, as we review it under a very deferential standard—that

is, under plain-error review. Fed. R. Crim. P. 52(b); Aguirre, 605 F.3d at 356. Under that standard,

McPherson has the burden to show (1) an error (2) that was obvious or clear, (3) that affected his

substantial rights. United States v. Olano, 507 U.S. 725, 732–34 (1993). As to the last of these

elements, we have held that “[a]n error affects substantial rights when it ‘affect[s] the outcome of

the district court proceedings.’” United States v. Inman, 666 F.3d 1001, 1006 (6th Cir. 2012)

(quoting Olano, 507 U.S. at 734). If all three of these elements are satisfied, an appellate court

may exercise its discretion to remedy a forfeited error, but only if the error seriously affects the

fairness, integrity, or reputation of the judicial proceedings. United States v. Lalonde, 509 F.3d

750, 757–58 (6th Cir. 2007).

       McPherson’s due process challenge fails because his admissions were knowing and

voluntary. McPherson argues that his revocation proceeding was flawed due to the district court’s

failure to adhere to the requirements of Federal Rule of Criminal Procedure 32.1. Among other

things, McPherson argues that he was not provided a copy of his superseding violation report, was

not advised of the maximum sentence and the applicable Guidelines range, and was not advised

that admitting to the additional violations would require a mandatory prison sentence. For these

reasons, he says, his admissions were not knowing and voluntary.

       Unlike when a defendant pleads guilty to criminal charges, and is thus entitled to a full,

formal Rule 11 colloquy, an accused’s admission or waiver of rights as to a supervised release

violation need only be knowing and voluntary, as viewed by the totality of the circumstances.

United States v. Melton, 782 F.3d 306, 311 (6th Cir. 2015). To assess whether an accused’s

admissions were knowing and voluntary, we consider a number of factors, including whether the



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Case No. 18-4046, United States v. McPherson


district court apprised McPherson of his Federal Rule of Criminal Procedure 32.1(b) rights and the

consequences of waiving those rights, whether McPherson comprehended the claims made against

him, and whether he understood his possible sentence. We do not assign “talismanic significance

to any single fact or circumstance,” as “each case is quite likely to be sui generis.” Id. (quoting

United States v. Correa–Torres, 326 F.3d 18, 23 (1st Cir. 2003)). Rule 32.1 in particular ensures

that in a revocation hearing, a defendant is entitled to, among other things, written notice of the

alleged violation, disclosure of the evidence, an opportunity to appear, present evidence, and

question adverse witnesses, and an opportunity to make a statement and present any information

in mitigation. Fed. R. Crim. P. 32.1(b)(2)(A)–(E); United States v. Williams, 321 F. App’x 486,

489 (6th Cir. 2009).

       Under the circumstances, we see no plain error in McPherson’s proceeding. McPherson

was represented by counsel at both his initial appearance and his final revocation proceeding.

Before his initial proceeding, McPherson and his counsel together reviewed the initial violation

report, a fact the district court confirmed during the hearing. As stated in the report, McPherson

could receive the statutory maximum sentence for his admitted violation of leaving his court-

ordered drug treatment program. At the subsequent revocation proceeding, the Probation Officer

read a list of the alleged violations aloud in open court; McPherson’s counsel did not request any

clarification. While that list included additional violations not included in the initial report,

McPherson’s maximum sentence did not increase due to the new violations. In other words,

McPherson knew the full extent of his potential sentencing exposure before admitting to additional

violations.

       Perhaps, as McPherson contends, the government failed to give him “written notice of”

these additional “alleged violation[s]” at the revocation hearing, as required by Rule 32.1(b)(2)(A).



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In that respect, we note that the district court, unlike at McPherson’s initial appearance, did not

ask McPherson whether he had reviewed the violation report, this time, the one outlining additional

violations in Willoughby Hills and Cuyahoga County. But even if McPherson was unaware of the

additional violations, had he been made aware of those additional violations being added to the

mix, he could only conclude that his sentence might increase, not decrease. In that sense,

McPherson could not meaningfully have been caught off guard when he already knew he was

possibly facing the maximum sentence. It is thus hard to see what McPherson would have done

differently had he been made aware of a superseding report he purports not to have received.

       Much like the defendant in United States. v. Pippin, McPherson contends that the record

“does not reflect that he received a copy of the violation report or other notice of the revocation

charges.” 613 F. App’x 476, 479 (6th Cir. 2015). He likewise argues that he was not advised at

the hearing that admitting to the violations in Cuyahoga County, which included his guilty plea to

possession of a controlled substance and firearm charges, would result in a mandatory term of

imprisonment. See 18 U.S.C. § 3583(g). Factually, McPherson appears to be correct. But more

broadly, and of more significance, he does not claim a lack of actual knowledge of his sentencing

exposure or the consequences of admitting to the new violations. As in Pippin, McPherson “does

not argue that he would have contested his guilt of the violation,” which “would be a near

impossible task” in that he “had pled guilty to several new offenses.” 613 F. App’x at 479–80.

Indeed, Pippin is the harder case, as the defendant there received a consecutive sentence for his

violation, despite not being notified of that possibility in advance. Id. at 480. Yet his sentence

was upheld on plain-error review. Id.

       We see no reason to treat McPherson differently. Even had McPherson been told in court

that a violation would lead to automatic imprisonment, there is no reason to believe he could have



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Case No. 18-4046, United States v. McPherson


successfully challenged, on a preponderance of the evidence standard, conduct that he had

previously pled guilty to in criminal proceedings. McPherson thus has not met his burden to show

that any purported error affected his substantial rights by changing the outcome of the proceeding.

       McPherson’s procedural reasonableness claim also fails. McPherson asserts it was error

for the district court, during McPherson’s sentencing hearing, to reference pending charges against

him in Willoughby Hills. As he had no opportunity to address the charges during his hearing,

McPherson says it was improper for the district court to consider them in imposing his sentence.

       While McPherson casts this as a substantive reasonableness challenge, we consider it more

properly as a procedural reasonableness challenge, in that McPherson is alleging that the district

court considered a factor in its sentencing determination that it should not have. See, e.g., United

States v. Hatcher, 947 F.3d 383, 394–95 (6th Cir. 2020) (considering comments during sentencing

by district court that the defendant had committed uncharged conduct as a question of whether the

district court considered an impermissible factor). To be sure, we have at times analyzed

challenges alleging consideration of impermissible factors as substantive reasonableness

challenges. But an intervening Supreme Court case, Henderson v. United States, 568 U.S. 266

(2013), “cast[s] serious doubt” on this precedent. United States v. Frost, 770 F. App’x 744, 744–

45 (6th Cir. 2019) (quoting United States v. Krul, 774 F.3d 371, 381 (6th Cir. 2014) (Griffin, J.,

concurring)). Following Henderson, we more properly treat these arguments as challenging the

procedural reasonableness of a sentence. Procedural reasonableness requires that the sentencing

court “properly calculate the Guidelines range, treat that range as advisory, consider the sentencing

factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select the sentence

based on facts that are not clearly erroneous, and adequately explain why it chose the sentence.”

United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019) (quoting United States v. Rayyan,



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Case No. 18-4046, United States v. McPherson


885 F.3d 436, 440 (6th Cir. 2018)); see also United States v. Cabrera, 811 F.3d 801, 809 (6th Cir.

2016). Because McPherson did not object when the district court referenced the pending charges,

we again review his challenge for plain error. See United States v. Vonner, 516 F.3d 382, 385 (6th

Cir. 2008).

       1. During a revocation proceeding, the district court has some flexibility in the conduct it

may consider in entering a sentence. It may consider pending charges against the defendant,

conduct that has not resulted in a conviction, and even conduct for which a defendant was

acquitted. See United States v. Williams, 214 F. App’x 552, 555 (6th Cir. 2007) (noting that it is

“well-settled that relevant unconvicted conduct, even acquitted conduct, may be considered in

determining a defendant’s sentence” (citing United States v. Milton, 27 F.3d 203, 208–09 (6th Cir.

1994))); see also United States v. White, 551 F.3d 381, 385 (6th Cir. 2008) (en banc) (holding that

“[s]o long as the defendant receives a sentence at or below the statutory ceiling . . . the district

court does not abridge the defendant’s right[s] . . . by looking to other facts, including acquitted

conduct, when selecting a sentence within that statutory range”). But in McPherson’s revocation

hearing, the district court specifically prompted McPherson to address only the charges to which

he had pled guilty in Cuyahoga County, and specifically excluded his pending charges.

McPherson therefore had no opportunity to admit or deny the conduct underlying those pending

charges. Basing McPherson’s sentence in part on his pending charges in Willoughby Hills would

thus have been in error, as McPherson had no opportunity to exercise his rights granted by Rule

32.1 as to those charges, nor does he appear to have waived those rights.

       2. To prevail, McPherson has two other hurdles to clear: he must show (1) that the district

court plainly or obviously considered the pending charges as a basis for its sentence; and (2) that

doing so lengthened his sentence. Starting with the first requirement, the record provides some



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Case No. 18-4046, United States v. McPherson


support both for the inference that the district court did not consider the pending charges as a factor

in setting McPherson’s sentence, and that it did. On the one hand, the district court asked

McPherson how he wished to proceed as to only the two violations to which he had pled guilty,

expressly excluding the pending charges. On the other hand, when the district court explained its

reasoning for the sentence it imposed, it referenced the pending charges. And those charges, in

fact, may have been the basis for the court to draw negative character inferences about McPherson,

including his failure to “man up” and admit to using his brother’s identity. After chastising

McPherson for not having his act together and remarking that McPherson’s statements to the court

were a “hustle,” the district court then began to “summarize” McPherson’s conduct, going through

a litany of reasons why his conduct was particularly troublesome, twice mentioning the pending

charges against him.

       All of this said, we are not convinced that the district court plainly or obviously based its

sentence upon the pending charges. See, e.g., Cabrera, 811 F.3d at 809 (noting that procedural

reasonableness asks whether the district court “based” its sentence upon impermissible factors).

The district court cited a number of relevant sentencing factors beyond its brief references to

McPherson’s pending charges.        Among them were McPherson’s lack of effort in finding

employment, his failure to make court-ordered restitution or special assessment payments, and the

fact that he went “AWOL” from treatment at Oriana House, which the district court correctly

characterized as a “squandered” opportunity. The district court also cited McPherson’s extensive

criminal history: “[c]riminal convictions dating back to age 16, 12 prior drug-related convictions.

Prior adult convictions for assault twice, felonious assault, agg[ravated] rob[bery]. Having

weapons while under disability twice. What else? Carrying concealed weapons. Escape, criminal

damaging, and endangering. False information. Disorderly conduct, intox.” It was in this context,



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Case No. 18-4046, United States v. McPherson


and only after listing a long line of violations fairly considered by the district court, that the court

then added: “Obviously [McPherson] continued to be involved in criminal behavior: The pending

charges, possession of crack, identity fraud, forgery, in Willoughby Municipal Court, and of course

[his] recent convictions.”

        To be sure, upon naming the pending charges in its list of sentencing considerations, the

district court used them as an example of McPherson’s failure to take responsibility: “And getting

back to identity fraud, lying about who you are, giving your brother’s name. You can’t admit that,

you can’t man up to that.” Considering that the court had specifically excluded the pending

charges (which included an identity fraud charge) from the matters about which it asked

McPherson to address, this statement, at first blush, seems troubling. But keep in mind that

McPherson had been convicted on other occasions of using his brother’s identity. The district

court was aware of this criminal history, which was included in the presentence report prepared

for the court as part of McPherson’s sentencing on his underlying bank fraud conviction. Such

past history and characteristics of a defendant are valid considerations when revoking supervised

release. See 18 U.S.C. § 3583(e)(1); 18 U.S.C. § 3553(a)(1). It is therefore not obvious or plain

that the district court’s references to identity fraud arose primarily from its consideration of

McPherson’s pending charges rather than earlier conduct.

        3. Even if there was an error in the proceedings, McPherson has not shown that his

substantial rights were affected.       Doing so would require McPherson to show that any

consideration by the district court of the pending charges in Willoughby Hills caused McPherson

to receive a harsher sentence. To our eye, however, the district court gave more than adequate

justification for an above-Guidelines sentence, aside from McPherson’s pending charges. We are




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Case No. 18-4046, United States v. McPherson


thus not convinced by the record or McPherson that he would have received a lighter sentence,

aside from any purported consideration of the events in Willoughby Hills.

                                     III. CONCLUSION

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




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