USA v. Jarrod Mill

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication. Boyce F. Martin , Jr., Circuit Judge; Richard Allen Griffin, Circuit Judge and Sandra S. Beckwith, U.S. District Judge for the Southern District of Ohio, sitting by designation.

Case: 12-5060

Document: 006111513841

Filed: 11/28/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1233n.06

FILED

No. 12-5060

Nov 28, 2012

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JARROD MILLS,
Defendant-Appellant.

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE

BEFORE: MARTIN and GRIFFIN, Circuit Judges; BECKWITH, District Judge.*

PER CURIAM. Jarrod Mills appeals a district court judgment revoking his supervised
release. Because the thirty-six month sentence imposed by the district court is procedurally and
substantively reasonable, we affirm.
In 1998, Mills pleaded guilty to conspiracy to manufacture with the intent to distribute 132
grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 121 months of
imprisonment, followed by five years of supervised release. That five-year period of supervised
release began on May 4, 2007.
On June 8, 2011, the probation office petitioned the district court to issue a warrant for
Mills’s arrest and recommended revocation of his supervised release. According to the petition,

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The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.

Case: 12-5060

Document: 006111513841

Filed: 11/28/2012

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No. 12-5060
United States v. Mills
Mills had violated the conditions of his supervised release by committing the following offenses for
which he had been indicted by the State of Tennessee: (1) possession of cocaine with the intent to
manufacture, sell, and deliver; (2) possession of marijuana with the intent to manufacture, sell, and
deliver; and (3) possession of drug paraphernalia.
After an evidentiary hearing, the district court concluded that the government had established
by a preponderance of the evidence that Mills had violated the conditions of his supervised release.
The district court then proceeded to sentencing, noting that Mills’s advisory sentencing guidelines
range was twenty-four to thirty months of imprisonment, and that the statutory maximum sentence
was sixty months of imprisonment. Both parties recommended a sentence of twenty-four months
of imprisonment. In support of that sentence, Mills asserted that, because his original sentence was
imposed prior to the enactment of the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111–120, 124
Stat. 2372, he had served more time than someone would currently serve for the same offense. He
also asserted that the district court should consider the changes in the crack cocaine sentencing laws
since his original sentencing. After considering the relevant sentencing factors under 18 U.S.C. §
3553(a), see 18 U.S.C. § 3583(e), the district court concluded that a sentence of thirty-six months
of imprisonment was appropriate because of the similarity between Mills’s original drug offense, his
violation conduct, and “the fact that apparently not much was beneficially learned.”
In this timely appeal, Mills challenges his thirty-six month sentence. We review a sentence
imposed upon revocation of supervised release “‘under a deferential abuse-of-discretion standard,’”

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Case: 12-5060

Document: 006111513841

Filed: 11/28/2012

Page: 3

No. 12-5060
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for procedural and substantive reasonableness. United States v. Bolds, 511 F.3d 568, 578 (6th Cir.
2007) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).
Mills argues that his sentence was procedurally unreasonable because the district court failed
to adequately explain its deviation from the guidelines range. Mills actually complains about the
district court’s reason for the deviation rather than the adequacy of its explanation, asserting that
“upward variances are reserved for those who have inadequate criminal history scores, those who
received a downward adjustment in their original sentence, and those who repeatedly violate
supervised release.” While the guidelines’ policy statements specifically mention these justifications
for deviating from the guidelines range in imposing a sentence upon revocation of supervised release,
see, e.g., USSG § 7B1.4, cmt. nn.2 & 4, nothing restricts the district court’s discretion to these three
reasons.
The record reflects that the district court “adequately explain[ed] the chosen sentence” and
provided “an explanation for [the] deviation from the Guidelines range.” Gall, 552 U.S. at 51. After
discussing the relevant § 3553(a) factors, including the nature and circumstances of Mills’s original
offense and its similarity to the violation conduct as well as the need to afford adequate deterrence
and to protect the public, the district court gave a specific reason for deviating from the guidelines
range. Thus, district court complied with its duty to explain the deviation from the guidelines range
and imposed a procedurally reasonable sentence. See United States v. Johnson, 640 F.3d 195,
207–08 (6th Cir. 2011).
In support of his argument that his sentence was substantively unreasonable, Mills contends
that the district court rejected his policy argument regarding the FSA based on incorrect assumptions
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Case: 12-5060

Document: 006111513841

Filed: 11/28/2012

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No. 12-5060
United States v. Mills
and that the sentence imposed was therefore arbitrary. After the district court pronounced the thirtysix month sentence, Mills reiterated his argument that he would have received a lower sentence
under the FSA, asserting that “it is called the Fair Sentencing Act because in the past, it was unfair.”
In rejecting Mills’s argument, the district court stated:
It is called the Fair Sentencing Act because somebody put that label on the statute.
It is not called the Fair Sentencing Act because crack cocaine is not a bad thing.
Crack cocaine destroys this community. If you want to see one substance that has the
greatest impact in destroying Memphis, Tennessee and the young people in
Memphis, Tennessee, it’s crack cocaine, and it’s hard to pick out one thing in
Memphis because you have got so many things competing for it. You know, we have
got a meth problem, we have got a new and rising heroin problem. We have all sorts
of problems with Oxycontin and all those materials, so those are bad, but the one
thing that seems to be absolutely the most pervasive is crack.
Mills argues that the district court’s statements are “outdated and incorrect,” but cites no data
regarding drug abuse in Memphis. The district court did not rely on the discredited assumptions
regarding the relative harmfulness of crack and powder cocaine which formed the basis of the
sentencing disparity between crack and powder cocaine offenses. See Kimbrough v. United States,
552 U.S. 85, 95–98 (2007). Given that the district court considered the relevant § 3553(a) factors and
addressed Mills’s policy argument, the district court’s sentencing determination was not arbitrary.
The district court’s judgment is affirmed.

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