United States v. Andre Price

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0190p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 17-2432

v. │

│

│

ANDRE LAMAR PRICE, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:12-cr-00068-2—Robert J. Jonker, Chief District Judge.

Decided and Filed: August 28, 2018

Before: GUY, BATCHELDER, and BUSH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand

Rapids, Michigan, for Appellant. Jennifer L. McManus, UNITED STATES ATTORNEY’S

OFFICE, Grand Rapids, Michigan, for Appellee.

GUY, J., delivered the opinion of the court in which BUSH, J., joined, and

BATCHELDER, J., joined in part. BATCHELDER, J. (pg. 9), delivered a separate opinion

concurring in part and dissenting in part.

_________________

OPINION

_________________

RALPH B. GUY, JR., Circuit Judge. The district court revoked Andre Price’s supervised

release for a second time and sentenced him to 24 months of imprisonment to be followed by a

12-month term of supervised release. Price appeals his sentence, arguing that it was

No. 17-2432 United States v. Price Page 2

substantively unreasonable to have imposed a term of incarceration rather than ordering

residential inpatient substance abuse treatment. Price also contends that the new term of

supervised release was procedurally unreasonable because it exceeded the maximum length

permitted by 18 U.S.C. § 3583(h). We agree that § 3583(h) must be interpreted to require

that the maximum term of supervised release be reduced by the aggregate of all post-revocation

terms of imprisonment related to the same underlying offense. There is no dispute that, under

this interpretation, 10 months was the maximum term of supervised release that could follow the

24-month term of imprisonment imposed in this case. After careful review, we affirm Price’s

custodial sentence, vacate the term of supervised release, and remand for the district court to

impose a new term of supervised release not to exceed the maximum permitted under § 3583(h).

I.

Andre Price pleaded guilty to one of four counts of bank robbery and was sentenced to

60 months of imprisonment to be followed by three years of supervised release. Price completed

that custodial sentence and began his first term of supervised release on July 21, 2017. Two

urine samples collected the next week tested positive for cocaine, and Price admitted that he had

used crack cocaine over the weekend of July 22, 2017. At the recommendation of the probation

officer, however, the district court took no action with respect to those violations of the

conditions of his supervised release.

But when Price tested positive for cocaine use twice more on July 28 and August 7, the

probation officer recommended revocation in a petition filed on August 11, 2017. During the

first revocation hearing, Price admitted using cocaine prior to those dates and pleaded guilty to

violating two conditions of his supervised release. Through counsel, Price asked that he be

allowed to participate in inpatient substance abuse treatment in lieu of incarceration. In support

of that request, Price submitted a letter from the intake coordinator for the Salvation Army Adult

Rehabilitation Center in Grand Rapids, Michigan, which stated that Price would be a “good fit”

for their inpatient alcohol and drug rehabilitation program. Given Price’s admitted “Grade B”

violation and his criminal history category of VI, his applicable policy-statement Guidelines

No. 17-2432 United States v. Price Page 3

range was 21 to 24 months of imprisonment. See USSG § 7B1.4 (Policy Statement).1 The

district court considered alternative sentencing options, revoked Price’s supervised release, and

imposed a substantially below-Guidelines sentence of two months of imprisonment to be

followed by a 34-month term of supervised release. The conditions of Price’s supervised release

were the same as before, with an additional requirement that Price spend six months in a halfway

house. Price served that custodial sentence and began his new term of supervised release on

October 17, 2017.

Two weeks later, on October 29 and 30, Price violated the conditions of his supervised

release by: (1) being absent from the halfway house overnight without permission;

(2) possessing crack cocaine in violation of state law; and (3) using crack cocaine in violation of

the terms of his supervised release. Although drug testing was not performed, Price admitted all

three violations during the revocation hearing held November 13, 2017. Price again argued for

substance abuse treatment in lieu of incarceration.

The record confirms that the district court considered that to be an option but denied the

request as inappropriate under the circumstances. Having admitted a “Grade B” violation, the

applicable policy-statement Guidelines range was again 21 to 24 months of imprisonment. After

considering the relevant sentencing factors, the district court revoked Price’s supervised release

for a second time and imposed the sentence that is at issue in this appeal: a 24-month term of

imprisonment to be followed by a new 12-month term of supervised release. The district court

imposed the same conditions of supervised release as before—including six months in a halfway

house—but added the possibility that Price could substitute inpatient substance abuse treatment

for time in the halfway house “on a month-for-month basis.” Defense counsel indicated that

there were no other objections, and this appeal followed.

1The policy-statement Guidelines for Price’s Grade B violation and criminal history category of VI would

have been 21 to 27 months of imprisonment, except that the statutorily authorized maximum term of imprisonment

for Price’s original offense was 2 years (making the range 21 to 24 months). See USSG § 7B1.4(a) and (b)(3)(A);

18 U.S.C. § 3583(e)(3).

No. 17-2432 United States v. Price Page 4

II.

Sentences imposed following the revocation of supervised release are reviewed for

procedural and substantive reasonableness under the same abuse-of-discretion standard that

applies to post-conviction sentences. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007).

A district court commits significant procedural error by “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence.” Id. at 579 (quoting Gall v. United States, 552 U.S. 38,

51 (2007)). “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.

Lapsins, 570 F.3d 758, 772 (6th Cir. 2009) (citation omitted). A rebuttable presumption of

substantive reasonableness applies to sentences imposed within a properly calculated Guidelines

range. Id.

Although a defendant need not raise a substantive reasonableness claim in the district

court to preserve it for appeal, a claim of procedural error is reviewed for plain error if the

defendant fails to object when properly invited at the conclusion of the sentencing hearing. See

United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (discussing United States v.

Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004)). Because there was no objection to the length of

the supervised release term, Price must demonstrate (1) an error, (2) that was obvious or clear,

(3) that affected his substantial rights, and (4) that “seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th

Cir. 2006) (quoting United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001)).

A. Procedural Unreasonableness

“When a term of supervised release is revoked and the defendant is required to serve a

term of imprisonment, the court may include a requirement that the defendant be placed on a

term of supervised release after imprisonment.” 18 U.S.C. § 3583(h). Moreover, “[t]he length

of such a term of supervised release shall not exceed the term of supervised release authorized by

No. 17-2432 United States v. Price Page 5

statute for the offense that resulted in the original term of supervised release, less any term of

imprisonment that was imposed upon revocation of supervised release.” Id. (emphasis added).

We have held that this last clause plainly mandates that the court subtract “the length of any

newly-imposed period of incarceration from a term of supervised release[.]” United States v.

Brown, 639 F.3d 735, 738 (6th Cir. 2011). The question not reached in Brown—or raised by

Price below—is whether § 3583(h) requires the court to also subtract the length of any term of

imprisonment imposed upon a prior revocation of supervised release related to the same

underlying offense. We conclude that the answer to this question must be yes.

Questions of statutory interpretation are reviewed de novo, and our starting point must be

the statutory language itself. Brown, 639 F.3d at 737. The statute here defines the maximum

length of a term of supervised release by reference to the maximum term of supervised release

authorized for the underlying offense, reduced by “any term of imprisonment that was imposed

upon revocation of supervised release.” 18 U.S.C. § 3583(h). Because the term “any” is not

defined by the statute, we “assume that Congress adopts the customary meaning of the terms it

uses.” United States v. Detroit Med. Ctr., 833 F.3d 671, 674 (6th Cir. 2016). As one court

explained:

When the word “any” is properly read in its § 3583(h) statutory context,

Webster’s Third New International Dictionary provides that the word “any”

means “all.” See id. at 97 (2d ed. 1981). Specifically, Webster’s . . . provides that

when the word “any” is “used as a function word to indicate the maximum or

whole of a number or quantity,” . . . the word “any” means “all.” Id.

United States v. Maxwell, 285 F.3d 336, 341 (4th Cir. 2002).

We agree that “the word ‘any’ in the phrase ‘less any term of imprisonment that was

imposed upon revocation of supervised release,’ . . . is obviously used as a function word to

indicate the maximum or whole of a number or quantity[.]” Id. (emphasis in original) (quoting

§ 3583(h)). As a result, in determining “the maximum term of supervised release . . . , 18 U.S.C.

§ 3583(h) requires that the term be reduced by all post-revocation terms of imprisonment

imposed with respect to the same underlying offense, not only by the most-recent term of

imprisonment.” United States v. Rodriguez, 775 F.3d 533, 534 (2d Cir. 2014); accord United

States v. Zoran, 682 F.3d 1060, 1063-64 (8th Cir. 2012); United States v. Williams, 675 F.3d

No. 17-2432 United States v. Price Page 6

275, 279 (3d Cir. 2012); United States v. Knight, 580 F.3d 933, 938-40 (9th Cir. 2009); United

States v. Vera, 542 F.3d 457, 460 (5th Cir. 2008); United States v. Mazarky, 499 F.3d 1246, 1250

(11th Cir. 2007); Maxwell, 285 F.3d at 342.

Here, in calculating the maximum term of supervised release, the district court correctly

identified 36 months as the maximum term of supervised release authorized for the underlying

bank robbery offense. See 18 U.S.C. § 3583(b)(2). Then, consistent with Brown, the district

court subtracted the newly imposed 24-month term of imprisonment to find that the maximum

for any new term of supervised release would be 12 months. However, the failure to also reduce

the term of supervised release by the 2-month term of imprisonment imposed upon Price’s first

revocation of supervised release was error.

For this error to be “plain,” it must be “clear or obvious, rather than subject to reasonable

dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009) (citing United States v. Olano,

507 U.S. 725, 734 (1993)). Because the unambiguous language of § 3583(h) is susceptible of

only one reasonable interpretation, as every circuit to address the issue has found, the error in

calculating the maximum term of supervised release was and is both obvious and not subject to

reasonable dispute. Moreover, because this obvious error resulted in the imposition of a term of

supervised release that exceeded the maximum permitted under § 3583(h), the error affected

Price’s substantial rights and “the fairness, integrity, or public reputation of the judicial

proceedings.” Gardiner, 463 F.3d at 459 (citation omitted); see also Rosales-Mireles, 138 S. Ct.

1897, 1911 (2018). Price has established plain error that must be corrected on remand. Accord

Rodriguez, 775 F.3d at 536-37 (finding plain error); Maxwell, 285 F.3d at 342 (same).2

B. Substantive Unreasonableness

Price also contends that his 24-month term of imprisonment was substantively

unreasonable because he was a candidate for and would have benefitted from inpatient substance

abuse treatment in lieu of incarceration. We find no abuse of discretion.

2The government concedes that this constitutes plain error. (Gov’t Bf., p. 14.)

No. 17-2432 United States v. Price Page 7

A district court may “revoke a term of supervised release, and require the defendant to

serve in prison all or part of the term of supervised release authorized by statute” after

considering the relevant sentencing factors. 18 U.S.C. § 3583(e)(3) (incorporating factors from

18 U.S.C. § 3553(a)); see also United States v. Lewis, 498 F.3d 393, 398 (6th Cir. 2007). In

addition, § 3583(g) requires revocation and imprisonment if, among other things, the defendant

“possesses a controlled substance in violation of the condition set forth in [§ 3583(d)],” or “as a

part of drug testing, tests positive for illegal controlled substances more than 3 times over the

course of 1 year.” 18 U.S.C. § 3583(g)(1) and (4). Price concedes that his admitted use of

cocaine on October 29 and 30 established his “possession” of cocaine in violation of the

conditions of supervised release set forth in § 3583(d). See United States v. Crace, 207 F.3d 833,

836-37 (6th Cir. 2000). Even if that were not the case, there can be no dispute that Price tested

positive for cocaine use “more than 3 times over the course of 1 year,” § 3583(g)(4).

Nonetheless, Congress has restored some of the district court’s discretion by also providing that:

[t]he court shall consider whether the availability of appropriate substance abuse

treatment programs, or an individual’s current or past participation in such

programs, warrants an exception in accordance with United States Sentencing

Commission guidelines from the rule of section 3583(g) when considering any

action against a defendant who fails a drug test.

18 U.S.C. § 3583(d); see also USSG § 7B1.4 cmt. n.6; Crace, 207 F.3d at 835-36. Here, the

district court explicitly considered Price’s request for substance abuse treatment instead of

incarceration but rejected that option as inappropriate under the circumstances.3

Price argues that it was substantively unreasonable for the district court to find that

concerns about public safety, accountability, and breach of trust outweighed the “legitimate

societal and personal benefits of providing [him with] intensive substance abuse treatment.”

(Def’s Bf., p. 10.) In fact, before imposing a sentence of incarceration, the district court

identified relevant sentencing factors, noted that substance abuse had played a role in the

underlying offense, and emphasized the leniency already granted with respect to the previous

drug-related violations of supervised release. Moreover, the conditions of supervised release

3Thus, it is not necessary to consider the government’s assertion for the first time on appeal that the

discretion restored by § 3583(d) only applies when the revocation at hand was itself based on a failed drug test.

No. 17-2432 United States v. Price Page 8

included the possibility that Price could substitute residential substance abuse treatment for time

that would otherwise be spent in a halfway house “on a month-for-month basis.” A rebuttable

presumption of substantive reasonableness applies to Price’s within-Guidelines sentence, and his

argument that the sentencing factors should have been balanced differently is not sufficient to

rebut that presumption. United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006) (explaining that

appellate review is for reasonableness “as opposed to whether in the first instance we would have

imposed the same sentence”); see also United States v. Hunt, 728 F. App’x 432, 435-36 (6th Cir.

2018) (finding defendant did not rebut the presumption of reasonableness by arguing that the

sentence was greater than necessary because the defendant did not receive inpatient drug

treatment in lieu of incarceration).

* * *

For the reasons stated, Price’s 24-month term of imprisonment is AFFIRMED, his

12-month term of supervised release is VACATED, and the case is REMANDED for the

district court to impose a new term of supervised release not to exceed the maximum permitted

under 18 U.S.C. § 3583(h).

No. 17-2432 United States v. Price Page 9

____________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________________

ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part.

If we were reviewing de novo Price’s procedural-reasonableness challenge, I would join the

majority’s opinion without hesitation. But that challenge is before us on plain-error review, and

Price cannot satisfy that standard under our precedents.

To satisfy the plain-error standard, Price needed to demonstrate “error,” that is “plain”

(or “obvious or clear”), that affected his substantial rights, and that “seriously affected the

fairness, integrity, or public reputation of the judicial proceedings.” See Fed. R. Crim. P. 52(b);

United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (citation omitted). I agree with the

majority that Price has demonstrated error. But I disagree with the majority that this error is

“plain” or “obvious or clear.” The proper interpretation of 18 U.S.C. § 3583(h) is an issue of

first impression in this court. And the Supreme Court has not weighed in on this issue. This is

fatal to Price’s procedural-reasonableness challenge, under our plain-error precedents. “A lack

of binding case law that answers the question presented . . . preclude[s] our finding of plain

error.” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (citing United States v.

Woodruff, 735 F.3d 445, 450 (6th Cir. 2013)). There was no binding case law that answered the

question presented in this case at the time the district court decided it, and there have been no

intervening cases creating such binding case law. Price’s failure to demonstrate that the district

court’s error is “plain” obligates us to reject Price’s procedural-unreasonableness challenge. See

id. Because the majority sees it otherwise, I respectfully dissent from that part of the majority’s

opinion. I concur in the majority’s affirmance of the district court’s imposition of the term of

imprisonment.