United States v. Lavert Finney ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0535n.06
No. 18-3379
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Oct 25, 2018
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
LAVERT FINNEY, ) OHIO
)
Defendant-Appellant. ) OPINION
)
BEFORE: MERRITT, DAUGHTREY, and STRANCH, Circuit Judges.
PER CURIAM. This is an appeal from an order by the district court revoking defendant
Finney’s supervised release under 18 U.S.C. § 3583 and imposing a new sentence of ten months
followed by a five-year term of supervised release. The district court’s explanation of its decision
is as follows:
This matter was before the Court on April 4, 2018, for a hearing on the
Government’s request for revocation of Defendant Lavert Finney’s supervised
release. The Defendant was present and represented by counsel.
The Probation Officer’s report states that Defendant Lavert Finney has left the
district without permission on numerous occasions, has failed to report change of
address, has associated with individuals engaged in criminal activity or convicted
of felonies, has possessed drug paraphernalia, has failed to report employment and
has failed to submit truthful monthly supervision reports. The Defendant admits to
certain violations. After hearing testimony and for the reasons set forth on the
record, the Court finds Defendant violated all alleged violations and revokes
supervision.
No. 18-3379, United States v. Finney
Defendant is sentenced to custody of Bureau of Prisons for a term of ten months,
followed by five years supervised release (five years as to Counts 1 and 2 and two
years as to Count 5, to run concurrently). Defendant is restricted from any form of
gambling and shall participate in gambling addiction treatment. Defendant shall
participate in cognitive behavioral treatment. Defendant shall not incur any new
debt/credit and shall provide the probation officer with access to any requested
financial information.
United States v. Finney, No. 5:07-cr-172-01 (N.D. Ohio Apr. 12, 2018). On appeal, Finney argues
that the district court did not “consider the relevant factors” or provide a “meaningful basis for the
imposition of the sentence imposed” at his revocation hearing. Finney also alleges that his
sentence was excessive because he committed only “technical,” noncriminal violations of his
supervised release.1 We construe Finney’s claims as a challenge to the substantive and procedural
reasonableness of his sentence.
In evaluating the substantive reasonableness of a defendant’s sentence, courts must “take
into account the totality of the circumstances, including the extent of any variance from the
Guidelines range.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007) (citation omitted).
“[F]or sentences within the Guidelines, we may apply a rebuttable presumption of substantive
reasonableness.” Id. (citations omitted). In this case, the court finds nothing in the record to rebut
the presumption that Finney’s within-Guidelines sentence was substantively reasonable. Although
Finney emphasizes that he was not charged with any additional crimes while on supervised release,
his violations did not need to be criminal to serve as a basis for revocation. And although most of
these violations were arguably “technical,” they were also numerous—Finney violated the
conditions of his release 14 times. In determining Finney’s sentence, the district court reasonably
We note our concern that Finney’s briefing also repeatedly criticizes the Assistant United States Attorney
1
who appeared at Finney’s revocation hearing. These criticisms are irrelevant to the legal issues before us.
-2-
No. 18-3379, United States v. Finney
considered “the severity of the breach of trust” demonstrated by these repeated violations. United
States v. Johnson, 640 F.3d 195, 204 (6th Cir. 2011).
Although Finney’s procedural reasonableness claim is also unavailing, it requires more
attention. To assess the procedural reasonableness of a defendant’s sentence, courts ask whether
there is “sufficient evidence in the record to affirmatively demonstrate the court’s consideration
of” the factors required under 18 U.S.C. § 3553(a). Id. at 203 (citation omitted). The sentencing
court need not, however, “explicitly reference each of” those factors. Id. Instead, the court must,
at a minimum, “adequately explain the chosen sentence to allow for meaningful appellate review
and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007)
(citation omitted).
The record shows that the district court’s sentencing rationale focused predominantly on
dissatisfaction with Finney for violating court orders. (R. 76, PageID 527-31) The court then
mentioned that the Government had conceded that Finney might have committed only “technical
violations” and sharply disagreed. (Id., PageID 529:22-25) At the conclusion of the sentencing,
the court briefly recited the § 3553(a) factors and announced a sentence of “10 months for the
pattern of conduct and complete disregard of the Court’s orders.” (Id., PageID 531:5-12; 532:9-
533:20)
A principal purpose of the procedural protections afforded to defendants in this context is
“to promote the perception of fair sentencing.” Gall, 552 U.S. at 50. A fuller explanation of the
reasoning behind the sentencing and a more complete opportunity for allocution would have been
preferable here. See, e.g., Rita v. United States, 551 U.S. 338, 356 (2007) (“Confidence in a
judge’s use of reason underlies the public’s trust in the judicial institution.”). At the same time,
the Supreme Court has instructed that “[w]hen a judge applies a sentence within the Guidelines
-3-
No. 18-3379, United States v. Finney
range, he or she often does not need to provide a lengthy explanation.” Chavez-Meza v. United
States, 138 S. Ct. 1959, 1964 (2018). If a sentencing judge makes clear that he “has considered
the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking
authority,” then a reviewing court may not vacate a sentence on procedural grounds simply because
the court disagrees with the language used to convey that reasoning. Id.The stated reasons for imposing Finney’s sentence were sufficiently tied to the relevant
factors, and we cannot say that the law required a lengthier explanation. Accordingly, the district
court’s judgment is AFFIRMED.
-4-