USA v. Demetrius Smith

Filing

OPINION filed : The defendant's sentence is AFFIRMED, Decision not for publication. Gilbert S. Merritt, Julia Smith Gibbons (AUTHORING), and David W. McKeague, Circuit Judges.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0063n.06
No. 15-3181
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
DEMETRIUS SMITH,
Defendant-Appellant.

FILED
Feb 01, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO

OPINION

BEFORE: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Demetrius Smith appeals his 24-month
sentence for violation of his supervised release.

While on supervised release, Smith was

convicted of a state assault charge, which violated the terms of his supervised release. The
district court sentenced Smith to the statutory maximum of 24 months’ imprisonment, although
the Guidelines range was 7 to 13 months’ imprisonment. Smith argues that this sentence is both
procedurally and substantively unreasonable, because the district court failed to provide him
notice of its intent to grant an upward departure and allegedly failed to consider the pertinent
18 U.S.C. § 3553(a) factors. We affirm.
I.
In 2009, Demetrius Smith pled guilty to Possession of a Firearm by a Prohibited Person,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). During sentencing, the district court varied

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downward and sentenced Smith to 60 months’ imprisonment and 3 years’ supervised release. 1
Smith was released from prison and his term of supervised release began on May 30, 2013. On
August 7, 2014, Smith’s probation officer petitioned the court to revoke his supervised release
for failing to abide by the condition that he not commit another federal, state, or local crime.
Specifically, Smith was found guilty of misdemeanor assault in violation of § 2903.13 of the
Ohio Revised Code, and the state court sentenced him to 180 days in jail with 90 days suspended
and two years of electronically monitored house arrest. Smith pled guilty to the violation on
November 6, 2014, and the district court held the matter of sentencing in abeyance pending
Smith’s performance on supervised release. Ultimately, on February 11, 2015, the district court
revoked Smith’s supervised release and sentenced him to 24 months’ imprisonment with no
supervised release to follow.
The assault underlying Smith’s violation was captured on videotape, which the district
court viewed and marked as an exhibit during the February 11 hearing. On October 24, 2013,
Smith went to pick up his girlfriend, Deja Armstrong, from work at a local bar. Brittney
Anderson, who had been romantically involved with Ms. Armstrong while Smith was
imprisoned, was sitting at the bar. According to Smith, Ms. Anderson “took a very aggressive
posture” and “was looking to have a confrontation with him.” DE 69, Nov. 6 Tr. at 8, Page ID
153. From review of the surveillance video, however, it does not appear that Ms. Anderson
“stepped to [Smith] like a man,” as Smith claimed during the November 6 hearing. See id.
Rather, Smith approached Ms. Anderson, who was sitting at the bar. After they speak for
approximately one minute, Smith walks away, but quickly returns to strike Ms. Anderson in the

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At sentencing, Smith’s Guidelines range was 84 to 105 months’ imprisonment.

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face.2 In response, Ms. Anderson throws her drink at Smith and picks up a chair and holds it
behind her. Still holding the chair, Ms. Anderson then backs up across the room as Smith
approaches her. Ms. Anderson next pushes Smith with one arm, while still holding the chair
with her other arm. Smith responds by punching Ms. Anderson in the face with such force that
Ms. Anderson immediately falls to the floor. Smith stands over Ms. Anderson for several
seconds before walking to the bar to retrieve her cell phone, which he throws across the room at
her as she lay on the floor. The video ends shortly thereafter. Ms. Anderson sustained a broken
nose and fractured eye orbital, which required reconstructive surgery.
The probation officer classified the violation as Grade C, which with Smith’s Criminal
History Category of V, resulted in a Guidelines range of 7 to 13 months. Based on the videotape
evidence, the Government argued that the court should reclassify the incident as a Grade A
violation because the video depicted “a textbook example of a crime of violence.” DE 75, Feb.
11 Tr. at 10, Page ID 195. A shift to Grade A would have increased Smith’s Guidelines range to
30 to 37 months’ imprisonment. The district court ultimately declined to reclassify Smith’s
violation.
In addition to viewing the videotape, the district court heard that Smith had failed to
attend several probation and anger management sessions. To his credit, Smith had attended a
substance abuse assessment and several anger management counseling sessions, and he was in
compliance with his state court electronic monitoring. The court also heard from Smith’s
counsel, who presented mitigation: Smith’s girlfriend had recently given birth to their child,
Smith had secured gainful employment, and he was passing all of his drug screenings.

The Government asserts that “Smith sucker punched Ms. Anderson in her face,” Appellee Br. at 4,
whereas Smith contends that “the video shows him swatting at her hair.” DE 75, Feb. 11 Tr. at 25, Page
ID 210. The more plausible interpretation of the events depicted in the videotape is that Smith hit Ms.
Anderson in the face at this point.
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After the Government and Smith concluded their arguments, the district judge stated that
“seeing this video changes my impression totally of Mr. Smith’s conduct” and “I’m even more
offended by the fact that at the last hearing, the argument was made that the victim was the
aggressor in the relationship.” Id. at 26, Page ID 211. The district judge remarked that she has a
duty to protect the public, a duty to punish people, and a duty to rehabilitate offenders. She
further recognized that in sentencing Smith for the underlying offense, she had deviated by a
third in sentencing him to sixty months’ imprisonment rather than the ninety months requested
by the probation officer. In consideration of Guidelines § 7B1.4 Application Note 4,3 the court
revoked Smith’s supervised release and departed upward in sentencing him to 24 months’
imprisonment. Smith timely appealed.
II.
A.
A district court may revoke a defendant’s term of supervised release and sentence him to
a new term of imprisonment. United States v. Polihonki, 543 F.3d 318, 322 (6th Cir. 2008).
We review sentences imposed following revocation of supervised release under the abuse of
discretion standard. See, e.g., United States v. Givens, 786 F.3d 470, 471 (6th Cir. 2015).
The ultimate reasonableness of a criminal sentence has both a procedural and a substantive
component. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Melton, 782 F.3d
306, 312–13 (6th Cir. 2015). In this case, Smith challenges his sentence on both procedural and
substantive grounds.
In reviewing for procedural reasonableness, we will find that a district court has abused
its discretion if it “commit[s] [a] significant procedural error, such as failing to calculate (or
§ 7B1.4 Application Note 4 provides as follows: “Where the original sentence was the result of a
downward departure . . . an upward departure may be warranted.”
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improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
In determining whether a sentence is substantively reasonable, we “take into account the
totality of the circumstances, including the extent of any variance from the Guidelines range.”
Id. Substantively reasonable sentences are “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 § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal
quotation marks and citations omitted). “District courts enjoy discretion in sentencing,” United
States v. Guthrie, 557 F.3d 243, 256 (6th Cir. 2009), and how a district court chooses to balance
the applicable sentencing factors is beyond the scope of our review. United States v. Ely, 468
F.3d 399, 404 (6th Cir. 2006). Even “if the sentence is outside the Guidelines range, the court
may not apply a presumption of unreasonableness. It may consider the extent of the deviation,
but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Gall, 552 U.S. at 51.
B.
Smith argues that the district court erred when it departed upward from the Guidelines
range without giving him notice as provided under Federal Rule of Criminal Procedure 32(h).
Rule 32, on “Sentencing and Judgment,” provides in relevant part as follows:
Before the court may depart from the applicable sentencing range on a ground not
identified for departure either in the presentence report or in a party’s prehearing
submission, the court must give the parties reasonable notice that it is
contemplating such a departure. The notice must specify any ground on which
the court is contemplating a departure.

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Fed. R. Crim. P. 32(h). In this case, the district court imposed an upward departure4 and gave no
notice of its intent to do so. In addition to the notice requirement, Rule 32 states other procedural
requirements, including the presentence investigation and report, adequate time to object to the
presentence report, and a defendant’s opportunity to speak prior to the court imposing sentence.
In contrast, procedures for revocation of supervised release are generally governed by
Federal Rule of Criminal Procedure 32.1. Rule 32.1, entitled “Revoking or Modifying Probation
or Supervised Release,” provides a defendant several procedural protections, including a
revocation hearing, written notice of the alleged violation, disclosure of evidence, the
opportunity to present evidence, notice of the right to counsel, and the opportunity to make a
statement and present mitigation. Fed. R. Crim. P. 32.1(b)(2). Unlike Rule 32(h), Rule 32.1 on
its face contains no requirement for advance notice before a district court may depart from the
applicable Guidelines range. Based on the plain and clear meaning of the Rules, therefore, a
district court does not commit a “significant procedural error” by failing to give notice of its
intent to depart upward in sentencing for a violation of supervised release. See Gall, 552 U.S. at
51.
In a prior unpublished decision, this court decided that Rule 32(h)’s notice requirement
does not extend to sentences for revocation of supervised release. United States v. Baker,
521 F. App’x 371, 374 (6th Cir. 2013) (“[T]he notice requirement associated with a departure
under Fed. R. Crim. P. 32(h) does not apply to a probationary setting such as a revocation of
supervised release.”). Many of our sister circuits have likewise concluded that Rule 32(h) does
not apply to sentences for revocation of supervised release. See, e.g., United States v. Harris,
A “departure results from the district court’s application of a particular Guidelines provision.” United
States v. Grams, 566 F.3d 683, 686 (6th Cir. 2009). The district court applied U.S.S.G. § 7B1.4
Application Note 4, which provides as follows: “Where the original sentence was the result of a
downward departure . . . an upward departure may be warranted.” See supra note 3 and accompanying
text.
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382 F. App’x 145, 146 (3d Cir. 2010); United States v. Gonzalez, 275 F. App’x 378, 379 (5th
Cir. 2008); United States v. Leonard, 483 F.3d 635, 638–39 (9th Cir. 2007); United States v.
Ryans, 237 F. App’x 791, 793 (4th Cir. 2007); United States v. Redcap, 505 F.3d 1321, 1323
(10th Cir. 2007).
Smith argues that the aforementioned cases rely on case law established prior to the
Supreme Court’s ruling in United States v. Booker, 543 U.S. 220 (2005), that all sentencing
Guidelines are advisory. See Ryans, 237 F. App’x at 793 (“Pre-Booker, courts agreed that no
notice of intent to depart was required in revocation proceedings because the policy statements in
Chapter 7 are merely advisory.”). Smith asserts that post-Booker, “no sound reason exists to
treat supervised release revocation differently from imposition of an initial sentence.” Appellant
Br. at 5. Smith further makes the policy argument that because for both sentencings and
supervised release revocations, “a trial court is required to calculate an offense level and a
criminal history category,” and because “[a] defendant is no less adversely impacted by the
imposition of a prison sentence following supervised release revocation than he is by
incarceration following a guilty finding as to the underlying offense,” Rule 32(h) must apply to
supervised release hearings. See id.
We disagree with Smith’s reasoning. Rule 32.1 has not been amended in the ten years
since Booker to include a notice requirement. In addition, this circuit’s opinion in Baker was
issued well after Booker and our sister circuits have expressly considered whether Rule 32(h)
should be applied to supervised release revocations in light of Booker’s pronouncement
regarding the advisory nature of the Guidelines.

See, e.g., Harris, 382 F. App’x at 146

(“Rule 32(h) remains in full force notwithstanding that, under United States v. Booker, 543 U.S.
220 (2005), all sentencing guidelines must be considered advisory, rather than mandatory.”).

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Rules 32 and 32.1 provide different procedural protections. For example, whereas the district
court must complete a presentence investigation report for an original sentencing, there is no
requirement that the district court investigate to the same extent the alleged violation of
supervised release. Compare Fed. R. Crim. P. 32(c)–(g), with Fed. R. Crim. P. 32.1. The
framers of the Rules clearly imagined different proceedings for sentencings and supervised
release violations.
Smith’s argument that “nothing in Rule 32(h) creates a specific exemption for revocation
proceedings” further misses the mark. See Appellant Reply Br. at 2. Textually, there is nothing
in Rule 32 that would extend the rule beyond the scope of its title, “Sentencing and Judgment.”
Moreover, during sentencing, the district court is not always required to provide advance notice;
it is only when the court does so “on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission.” See Fed. R. Crim. P. 32(h). There is
no presentence report and often no prehearing submission for violations of supervised release.
See Fed. R. Crim. P. 32.1. Not only would Smith have this court apply Rule 32(h) beyond its
plain meaning, but he would have the court rewrite the rule in order for it to sensibly apply to
supervised release hearings. Quite simply, the text of the Rules is clear. The district court
committed no procedural error in sentencing Smith to the statutory maximum punishment of
24 months’ imprisonment without providing advance notice of its intent to upward depart from
the Guidelines.
C.
Smith argues that his sentence is substantively unreasonable because the district court
failed to consider all the § 3553(a) factors, particularly his behavior while on supervised release.

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Smith contends that the district court “focus[ed] instead solely on its perceived role in protecting
the public.” Appellant Brief at 8.
In short, Smith’s sentence is substantively reasonable. “A district court need not recite
[the] § 3553(a) factors, nor engage in the ritual incantation of the factors in order for the
appellate court to affirm a sentence.” United States v. Jeross, 521 F.3d 562, 583 (6th Cir. 2008)
(internal quotation marks and citations omitted). At the same time, however, the district court is
prohibited from selecting the sentence arbitrarily and must consider the pertinent § 3553(a)
factors. Vowell, 516 F.3d at 510. “The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall, 552 U.S. at 51. However, Smith urges us to do exactly that: to substitute
our judgment for that of the district court.
The district court adequately explained the § 3553(a) factors and did not abuse its
discretion in imposing the statutory maximum sentence. The district court heard evidence from
Smith that he had attended some of his anger management counseling sessions, that his girlfriend
had recently given birth to his child, and that he had secured employment. The district court also
viewed videotape evidence of the assault perpetrated by Smith. Although the district judge did
not recite the § 3553(a) factors by name, she did reflect that she had duties to protect, punish, and
rehabilitate. The district judge’s reference to rehabilitating Smith clearly reflected § 3553(a)(1),
which directs courts to consider “the history and characteristics of the defendant.”
Smith’s argument that the district judge failed to consider the sentencing factors is really
an argument that the district court failed to weigh the factors in the manner most favorable to
Smith. It was well within the district judge’s discretion to weigh Smith’s violent characteristics
more heavily than his recent status as a father and an employed citizen. The district court’s

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determination that rehabilitation “didn’t work with Mr. Smith” reflects the court’s consideration
of the violent nature of the assault on Ms. Anderson, and perhaps Smith’s somewhat
disingenuous mischaracterization of the assault during the November 6, 2014 supervised release
hearing. DE 75, Feb. 11 Tr. at 26–27, Page ID 211–12 (“I’m even more offended by the fact that
at the last hearing, the argument was made that the victim was the aggressor in the relationship.
Nothing could be further from the truth.”). In other words, the district court’s recognition that
rehabilitation “didn’t work with Mr. Smith” demonstrates that the district court did take into
account the pertinent § 3553(a) factors, but Smith’s assault on Ms. Anderson outweighed
Smith’s recent employment and fatherhood. The district court acted within its discretion in
finding that the most important factor in this case was the protection of society. See 18 U.S.C.
§ 3553(a)(2)(C).
CONCLUSION
For the reasons stated herein, the defendant’s sentence is affirmed.

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