USA v. Joshua Dumphord
OPINION filed : the judgment of the district court is AFFIRMED, decision not for publication. Eugene E. Siler , Jr., Circuit Judge; Karen Nelson Moore, Circuit Judge (Authoring) and John M. Rogers, Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0520n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
May 23, 2013
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
Before: SILER, MOORE, and ROGERS, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Joshua Dumphord appeals the substantive
reasonableness of his twelve-month prison sentence, imposed after the U.S. District Court for the
Eastern District of Kentucky found that Dumphord violated the conditions of his supervised release.
Because Dumphord requested and received a within-Guidelines sentence, and because the fact of his
alcohol abuse does not alone render his term of imprisonment substantively unreasonable, we
AFFIRM the judgment of the district court.
I. FACTS AND PROCEDURE
Dumphord completed a twenty-seven month prison sentence for distributing cocaine base
in June 2012, at which point he began a six-year term of supervised release. On September 5, 2012,
Dumphord’s probation officer petitioned the U.S. District Court for the Eastern District of Kentucky
for a warrant for Dumphord’s arrest on account of multiple alleged offenses violating the conditions
United States v. Dumphord
of Dumphord’s supervision. R. 250 (Pet. for Warrant) (Page ID #501–02).1 According to the
petition, the first incident concerned Dumphord’s arrest on August 25, 2012, which resulted in
charges of “Operating a Motor Vehicle Under the Influence, Operating on Suspended or Revoked
Operator’s License, Fleeing or Evading 2nd Degree on Foot, and Possession of Open Alcohol
Beverage Container in a Motor Vehicle.” Id. at 1 (Page ID #501). The second incident, occurring
on September 1, 2012, resulted in an arrest and charges for “Operating on Suspended or Revoked
Operator’s License, Fleeing or Evading 1st Degree in a Motor Vehicle, Resisting Arrest, and Theft
by Unlawful Taking-Auto.” Id.
At a revocation hearing, Dumphord’s probation officer, various police officers, and
Dumphord’s girlfriend testified to the events of August 25, 2012, and September 1, 2012.
Dumphord’s counsel contested the specifics of the testimony offered in the government’s case; in
particular, he challenged the government’s contention that Dumphord’s fleeing-or-evading charge
from September 1, 2012, should be considered a felony rather than a misdemeanor given the facts
presented. A misdemeanor violation of state law in this instance would constitute a Class C
violation of the conditions of supervision, see U.S.S.G. § 7B1.1(a)(3); given Dumphord’s criminalhistory category of VI, the applicable Guidelines range would be eight to fourteen months of
imprisonment. U.S.S.G. § 7B1.4(a). In contrast, a felony fleeing-or-evading offense would
constitute a Class B violation, and would give rise under the circumstances to a Guidelines range of
The petition for warrant included a third ground according to which Dumphord violated the
conditions of supervision, but the district court later dismissed this ground at the probation officer’s
recommendation. R. 272 (Revocation Hr’g Tr. at 8) (Page ID #577).
United States v. Dumphord
twenty-one to twenty-seven months of imprisonment. U.S.S.G. §§ 7B1.1(a)(2), 7B1.4(a). Without
initially determining whether Dumphord had committed a felony or misdemeanor on September 1,
2012, the district court found that Dumphord had violated the terms of his supervised release. R.
274 (Revocation & Sent. Hr’g Tr. at 28) (Page ID #632).
During sentencing, Dumphord’s counsel continued to argue that the evidence presented was
insufficient to establish that Dumphord had committed a felony on September 1, 2012. Counsel
stated that “all we are asking at this point in time is for the court to sentence [Dumphord] in the
range of eight to fourteen months.” R. 274 (Revocation & Sent. Hr’g Tr. at 37) (Page ID #641). The
district court decided “to give Mr. Dumphord the benefit of the doubt and find a Grade C
[misdemeanor] violation.” Id. at 39 (Page ID #643). The district court then sentenced Dumphord
to twelve months of imprisonment. Id. Dumphord timely appealed the sentence.
II. SUBSTANTIVE-REASONABLENESS CLAIM
Dumphord sought, and received, a sentence within the Guidelines range of eight to fourteen
months. He does not contest on appeal that his actions violated the conditions of supervision.
Appellant Br. at 7. Nevertheless, Dumphord now claims that any term of incarceration would be
substantively unreasonable. Specifically, Dumphord argues that both incidents motivating the
revocation of his supervised release occurred because of his abuse of alcohol, and that incarceration
would thwart the rehabilitative purpose motivating supervised release.
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 for the offense that
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resulted in such term of supervised release.” 18 U.S.C. § 3583(e)(3). “We review for abuse of
discretion the sentence imposed by a district court upon revocation of supervised release.” United
States v. Johnson, 640 F.3d 195, 201 (6th Cir. 2011); see also United States v. Bolds, 511 F.3d 568,
578 (6th Cir. 2007) (“Sentences imposed following revocation of supervised release are to be
reviewed under the same abuse of discretion standard that we apply to sentences imposed following
conviction.”). Dumphord challenges the substantive reasonableness of his within-Guidelines
sentence. “In reviewing for substantive reasonableness, we must consider the sentence imposed in
light of ‘the totality of the circumstances. . . .’” Johnson, 640 F.3d at 202 (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)). We further “may apply a rebuttable presumption of reasonableness”
to a sentence that falls within the Guidelines range. Id.
Dumphord offers no support for the proposition that a defendant’s struggle with alcohol
abuse alone renders a term of imprisonment unreasonable.2 In addition, Dumphord did not mention
his alcohol usage during either the revocation or sentencing hearings as a reason to impose a lower
term of imprisonment. Instead, Dumphord’s counsel sought a sentence within the Guidelines range
appropriate for a Class C violation of the conditions of supervision. Cf. United States v. Goodman,
519 F.3d 310, 319 (6th Cir. 2008) (“[A]n attorney cannot agree in open court with a judge’s
We note that the record does not support Dumphord’s assertion that his conduct on
September 1, 2012, involved alcohol. Although the government mentioned during sentencing that
“both [violations] involve[d] alcohol,” R. 274 (Revocation & Sent. Hr’g at 30) (Page ID #634), no
evidence was produced to support this claim with respect to Dumphord’s arrest on September 1,
2012. In particular, no witness testified to the presence of alcohol in the events that transpired on
that date, and Dumphord was not charged with any alcohol-related crimes.
United States v. Dumphord
proposed course of conduct and then charge the court with error in following that course.” (internal
quotation marks omitted)). Given the presumption of substantive reasonableness for a withinGuidelines sentence, we cannot conclude that the district court abused its discretion in granting
Dumphord a sentence within the range sought by his counsel.
For the reasons described above, we AFFIRM the judgment of the district court.
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