USA v. John Gesing

Filing

Per Curiam OPINION filed : We therefore VACATE the judgment of sentence and REMAND the case to the district court for resentencing, decision not for publication. Ralph B. Guy , Jr., Circuit Judge; Karen Nelson Moore, Circuit Judge and David W. McKeague, Circuit Judge.

Case: 14-1424

Document: 25-2

Filed: 03/26/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0230n.06
No. 14-1424

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN GESING,
Defendant-Appellant.

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Mar 26, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: GUY, MOORE, and McKEAGUE, Circuit Judges.

PER CURIAM. John Gesing, a federal prisoner, appeals through counsel the 24-month
sentence of imprisonment imposed upon the revocation of his period of supervised release.
In 2011, Gesing entered a guilty plea to a charge of interstate transportation of stolen
property. He was sentenced to 36 months of probation. After only two months, his probation
was revoked and he was sentenced to seven months of imprisonment and two years of supervised
release. After Gesing served his term of imprisonment and commenced his supervised release,
the terms of his release were amended to call for placement in a community corrections center
for the duration. Gesing again violated the terms of his supervised release by, among other
things, using controlled substances, associating with a known criminal, and failing to pay
restitution.
A hearing was held at which Gesing admitted these violations. The sentencing guidelines
range was computed at four to ten months of imprisonment. The district court imposed a

Case: 14-1424

Document: 25-2

Filed: 03/26/2015

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No. 14-1424
United States v. Gesing
sentence of two years in prison, stating, “I hope while you are in prison . . . that you could take
advantage of a short-term drug program, there is a longer drug program which I really would like
to see you get into but I understand you need more time than that, and the statutory maximum I
can give you is two years.” The term was not to be followed by any additional supervised
release period. Counsel for Gesing objected that two years was longer than necessary for
punishment, deterrence, or protection of the public. The district court agreed that the two-year
sentence was not necessary for protection of the public or punishment, but explained “that the
element that affects this case the most is the one with providing the defendant with needed
medical care.” The court concluded by advising Gesing that he needed three things: “a strong
showing that you can’t get away with this type of conduct,” . . . “a lot of time to sit and think
about what you have done,” and “help.”
We review a sentence imposed on revocation of supervised release for reasonableness
under an abuse of discretion standard. United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007).
A sentence based on an impermissible factor is substantively unreasonable. United States v.
Deen, 706 F.3d 760, 762 (6th Cir. 2013). In Tapia v. United States, 131 S. Ct. 2382, 2391-93
(2011), the Supreme Court held that a court may not impose or lengthen a prison sentence to
promote rehabilitation. That holding applies to sentences imposed on revocation of supervised
release. Deen, 706 F.3d at 765–67. In Deen, we recognized that a sentencing court may discuss,
encourage, and even recommend a defendant’s participation in prison treatment programs. Id. at
768. Cognizable error occurs only when the perceived rehabilitative benefits of incarceration are
“the reason” for imposing or lengthening a prison sentence. Id. (quoting United States v. Grant,
664 F.3d 276, 282 (9th Cir. 2011)).

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Case: 14-1424

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The government contends the district court’s discussion of Gesing’s need for drug abuse
treatment was in the nature of a recommendation and did not run afoul of Tapia, citing United
States v. Krul, 774 F.3d 371 (6th Cir. 2014). In Krul, the sentencing court justified imposition of
a 63-month sentence by considering such factors as the defendant’s extensive criminal history,
the seriousness of the offense, the need to promote respect for the law, the need to afford
adequate deterrence, and the need to protect the public. Id. at 373–74. The court noted that the
period of incarceration would also afford opportunity for participation in educational,
correctional and medical programs. We upheld the sentence because we found no basis for
concluding that the court impermissibly calculated the length of the sentence to ensure receipt of
certain rehabilitative services. Id. at 375–76. We thus refused to give Tapia such an expansive
reading as to require resentencing whenever “it is merely possible” that rehabilitation was a
sentencing factor. Id. at 375.
This case is different. Considering the district court’s history with defendant Gesing,
Gesing’s repeated failures, and the court’s use of progressive discipline, we would be inclined to
hold there was no abuse of discretion, consistent with Krul—but for what the court said in
response to Gesing’s counsel’s objection. As the court varied upward from the guidelines range
of four to ten months, exceeded the government’s recommendation of a sentence at the upper end
of the range, and imposed the statutory maximum of 24 months’ imprisonment, the court
candidly acknowledged that the most significant factor was Gesing’s need for medical care. The
court expressly disclaimed reliance on the need for punishment or the need for protection of the
public as justifications for the admittedly “hard sentence.” On this record, we cannot but find
that the district court’s “hope” for rehabilitation played a determinative role in the length of the
prison term imposed.

The two-year sentence, as imposed, thus contravenes Congress’s

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Case: 14-1424

Document: 25-2

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admonition in the Sentencing Reform Act “that imprisonment is not an appropriate means of
promoting correction and rehabilitation,” as interpreted in Tapia. 18 U.S.C. § 3582(a).
Accordingly, we hold that the sentence imposed, based in part on an impermissible
factor, is substantively unreasonable. We therefore VACATE the judgment of sentence and
REMAND the case to the district court for resentencing.

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