USA v. Damien Baker

Filing

Per Curiam OPINION filed : Baker's sentence is AFFIRMED, decision not for publication. Jeffrey S. Sutton, Circuit Judge; Richard Allen Griffin, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

Case: 15-2268

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0405n.06
No. 15-2268

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAMIEN DEMON BAKER,
Defendant-Appellant.

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Jul 18, 2016
DEBORAH S. HUNT, Clerk

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

BEFORE: SUTTON, GRIFFIN, and DONALD, Circuit Judges.
PER CURIAM. Damien Baker appeals the 24-month sentence the district court imposed
following its revocation of his supervised release. We affirm.
In 2004, Baker pleaded guilty to conspiracy to possess with intent to distribute
five kilograms or more of cocaine, 50 grams or more of cocaine base, and an unspecified
quantity of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court
sentenced Baker to 160 months of imprisonment followed by five years of supervised release.
Upon the government’s motion for a sentence reduction under Federal Rule of Criminal
Procedure 35(b), the district court reduced Baker’s sentence to 112 months of imprisonment.
Baker subsequently filed a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), which
the district court granted, reducing his sentence to 96 months of imprisonment.
Baker’s five-year term of supervised release began on June 2, 2011. A month later,
Baker violated the conditions of his supervised release by associating with convicted felons,

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No. 15-2268 , United States v. Baker
possessing open containers of alcohol in a vehicle, and consuming alcohol. The district court
modified the conditions of Baker’s supervised release, adding the following conditions: that he
be placed on home confinement with electronic monitoring for six months, that he not use or
possess alcoholic beverages or frequent places whose primary purpose is selling or serving
alcohol, and that he not associate with anyone convicted of a felony, including family members,
without prior permission. Less than two weeks later, the district court again modified the
conditions of Baker’s supervised release due to his continued use of alcohol and ordered six
additional months of home confinement with electronic monitoring, for a total of twelve months,
and a curfew from 11:00 p.m. to 6:00 a.m. In September 2012, shortly after the end of Baker’s
electronic monitoring, the probation office alleged that Baker had violated the conditions of his
supervised release by associating with convicted felons, falsifying his monthly supervision
reports, and committing a misdemeanor offense of removing property not his own. The district
court again modified the conditions of Baker’s supervised release, ordering him to reside at a
residential reentry center for six months and to not be self-employed. In January 2015, after
Baker pleaded guilty to a misdemeanor obstruction charge, the district court again modified the
conditions of his supervised release to require 20 hours of community service.
In August 2015, the probation office petitioned the district court to issue a warrant for
Baker’s arrest, asserting that he had violated the conditions of his supervised release by:
(1) committing another crime by possessing and using marijuana, (2) possessing and using
marijuana as confirmed by a positive drug test, and (3) failing to complete substance abuse
testing as directed. The probation office subsequently filed an amended petition with five
additional alleged violations: (4) that Baker was self-employed as the operator of a cleaning
business, (5) that he entered into a loan agreement without the probation office’s approval,
(6) that he committed another crime by submitting monthly supervision reports containing false
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No. 15-2268 , United States v. Baker
statements, (7) that he submitted false and incomplete monthly supervision reports by failing to
report his self-employment and earnings and indicating that he did not use a post office box, and
(8) that he associated with a convicted felon.
At a hearing before the district court, Baker pleaded guilty to all but two of the eight
violations, disputing the third and eighth violations. Following testimony from the probation
officer and Baker, the district court found Baker guilty of failing to complete substance abuse
testing and not guilty of associating with a convicted felon. The district court calculated the
imprisonment range as 18 to 24 months based on Baker’s Grade B violations and his criminal
history category of V. After reviewing a letter from Baker’s longtime partner and hearing
arguments and allocution, the district court sentenced Baker to 24 months of imprisonment and
six months of supervised release to be served in a residential reentry center.
We review a sentence imposed upon revocation of supervised release under a deferential
abuse-of-discretion standard for procedural and substantive reasonableness. United States v.
Bolds, 511 F.3d 568, 575 (6th Cir. 2007).

Baker asserts that his 24-month sentence is

(1) procedurally unreasonable because the district court failed to consider his mitigating
arguments and (2) substantively unreasonable because it is disproportionate to his violations.
The district court “must consider all non-frivolous arguments in support of a lower
sentence.” United States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010). The district court is not,
however, required to “give the reasons for rejecting any and all arguments by the parties for
alternative sentences.” United States v. Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en banc).
Ultimately, to impose a procedurally reasonable sentence, “[t]he sentencing judge should set
forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States,
551 U.S. 338, 356 (2007).
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No. 15-2268 , United States v. Baker
Baker contends that the district court failed to consider his mitigating arguments about
his disadvantaged upbringing and his contributions to the community by helping with his son’s
traveling basketball league. The district court specifically acknowledged Baker’s argument
about his upbringing:
Regarding [counsel’s] argument as to a bad upbringing, that is one of the
discouraged factors, you might say, under the guidelines, but having said that, I
think that has a lot to do with the way people behave. It’s not an excuse because
they have a lot of opportunities to make up their own minds regarding lifestyles,
but nonetheless it is a matter that I think can be taken into consideration, at least
in my mind.
R. 1034 at 51–52. The district court did not expressly reference Baker’s involvement with his
son’s basketball team but paused the hearing to review the letter from his longtime partner
describing that involvement.
The district court instead focused on Baker’s history of supervised release violations:
“He’s accumulated numerous violations of supervised release and has had the conditions
modified on four occasions, effectively adding eight special conditions. So he’s had a lot of
breaks here, intermediate sanctions and treatment . . . . And you get repeated breaks and
nonetheless, you know, here we are again.” Id. at 36–37, 47. The district court also addressed
Baker’s need for substance abuse treatment, pointing out that substance abuse was “one of the
things that’s getting him into trouble.” Id. at 51. The district court therefore recommended that
Baker receive substance abuse counseling in the Bureau of Prisons and ordered that he
participate in a program of testing and treatment for substance abuse upon his release. Given the
district court’s discussion of these relevant sentencing considerations, the failure to mention
Baker’s involvement with the basketball team does not render his sentence procedurally
unreasonable. See United States v. Polihonki, 543 F.3d 318, 325 (6th Cir. 2008).

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No. 15-2268 , United States v. Baker
“A sentence is substantively reasonable if it is ‘proportionate to the seriousness of the
circumstances of the offense and offender, and sufficient[,] but not greater than necessary, to
comply with the purposes of [18 U.S.C.] § 3553(a).’” United States v. Robinson, 778 F.3d 515,
519 (6th Cir. 2015) (quoting United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). We
afford a rebuttable presumption of substantive reasonableness to Baker’s sentence because it is
within the applicable policy statement range. See Bolds, 511 F.3d at 581. Baker contends that
his Grade B violations were comparatively minor and did not warrant a sentence at the top of the
policy statement range.

The district court emphasized the seriousness of Baker’s conduct,

pointing out that his lies were “even worse than a relapse” and that his dishonesty with his
probation officer prevented her from doing her job. The district court also pointed out Baker’s
history of supervised release violations for which he had received repeated breaks. In light of the
district court’s express considerations, Baker has failed to overcome the presumption that his
sentence is substantively reasonable.
For the foregoing reasons, we AFFIRM Baker’s sentence.

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