United States v. Marcus Page ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0213n.06
Case Nos. 21-5730/5731
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 01, 2022
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
MARCUS PAGE,
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
) OPINION
Before: GIBBONS, McKEAGUE, and THAPAR, Circuit Judges.
McKEAGUE, Circuit Judge. Defendant Marcus Page appeals his consecutive sentences
for distributing drugs and violating conditions of supervised release. For the reasons explained
below, we affirm the district court.
I
Marcus Page was arrested in 2019 for selling drugs in violation of federal law. When he
was arrested, Page was serving a term of supervised release for a 2009 federal conviction for
distribution of cocaine base and being a felon in possession of a firearm. Five months prior to the
arrest, Page had violated the conditions of his supervised release and had been sentenced to time
served for those violations.
In December 2020, Page pled guilty in an amended plea agreement to possession with
intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). He initially entered a
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plea agreement in June 2020 that included a binding agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C) for a sentence of 156 months that would run concurrently to the sentence
for the supervised release offense. The Guidelines ranges were 151–188 months for the drug
violation and 24–30 months for the supervised release violation. The Guidelines advised that the
sentences run consecutively.
Before Page could be re-arraigned, his case was reassigned to a district judge who does not
accept binding plea agreements under Rule 11(c)(1)(C). Page and the government amended the
agreement to include those terms as recommendations under Rule 11(c)(1)(B).
At sentencing, the court accepted the recommendation that Page receive a 156-month
sentence for his drug offense, stating that it had considered “the [§] 3553 factors, the nature and
circumstances of the offense, [and] the history and characteristics” of Page. R. 65, P. 217–18. But
the court rejected the recommendation that Page’s sentence for violating supervised release run
concurrently, noting that the Guidelines recommend consecutive sentences for such violations and
that the offenses cause different harms. Page was sentenced to 30 months for the supervised
release violation, to run consecutively to his 156-month drug sentence. He did not object. Page
appeals, challenging his sentence on procedural and substantive reasonableness grounds.
II
Page claims that the court procedurally erred by ordering his sentence for violating
supervised release to run consecutively to, rather than concurrently with, his sentence for drug
distribution. He argues that the court’s consideration of the § 3553(a) factors was insufficient and
that it relied too much on a single factor.
Page did not object to any procedural defect at sentencing, so we review his claim of
procedural unreasonableness for plain error. United States v. Vonner, 516 F.3d 382, 385–86 (6th
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Cir. 2008) (en banc). To meet that standard, Page must show “(1) error (2) that was obvious or
clear, (3) that affected [Page’s] substantial rights and (4) that affected the fairness, integrity, or
public reputation of the judicial proceedings.” United States v. King, 914 F.3d 1021, 1024 (6th
Cir. 2019) (quoting United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010)). This standard is
“demanding.” Id. A district court has discretion to impose a consecutive sentence so long as it
has (1) consulted the applicable Guidelines or policy statements, (2) considered the sentencing
factors under 18 U.S.C. § 3553(a), and (3) made “generally clear the rationale” for its decision.
Id. at 1025 (quoting United States v. Hall, 632 F.3d 331, 336 (6th Cir. 2011)). Here, the court did
not plainly err when sentencing Page.
The court consulted the applicable Guidelines, noting that “[t]he guidelines suggest that a
violation of supervised release not run concurrent” even though “the [drug] crime was the basis of
the violation.” R. 65, P. 220. That statement correctly summarizes the Guidelines
recommendation that
Any term of imprisonment imposed upon the revocation of probation or supervised
release shall be ordered to be served consecutively to any sentence of imprisonment
that the defendant is serving, whether or not the sentence of imprisonment being
served resulted from the conduct that is the basis of the revocation of probation or
supervised release.
U.S.S.G. § 7B1.3(f).
The court also adequately considered the § 3553(a) factors. At the sentencing hearing,
Page’s attorney emphasized the relatively small amount of drugs involved and short period of
criminal conduct; Page’s immediate acceptance of responsibility for his actions; his distant
criminal history and difficult background of early childhood addiction; his strong employment
history; and his family and community support. After being presented with this information, the
court stated that it “looked at the 3553 factors, the nature and circumstances of the offense, the
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history and characteristics of the defendant,” and accepted the 156-month sentence
recommendation for the drug offense. R. 65, P. 217–18. Page argues that the district court ignored
those same factors a short time later when it sentenced Page for violating supervised release. This
is an inaccurate representation of the court’s decision. In fact, the court again considered the nature
and circumstances of the offense, noting that Page had been “placed on supervised release to
demonstrate that he had the desire and the ability to conform his conduct in accordance with the
law [and] [h]e was making progress toward returning to his position as a law-abiding and
productive member of society” until he “violat[ed] the orders of this Court.” R. 65, P. 220. It was
unnecessary for the court to repeat the other § 3553(a) factors that it had already considered.
Courts are not required to engage in a “ritual incantation” of the factors, United States v. Smith,
505 F.3d 463, 467–68 (6th Cir. 2007) (citation omitted), or to repeat them in a way that “would be
repetitious and unwarranted,” United States v. Berry, 565 F.3d 332, 343 (6th Cir. 2009).
Finally, the court made generally clear its rationale, explaining that Page “committed
violations separate from the [drug] crime” and that “the harm was to the dignity and the authority
of this Court.” R. 65, P. 220. When imposing a within-Guidelines sentence, the court need not
explicitly restate and reject every argument made by the defendant. Id. at 340–41; United States
v. Sweeney, 891 F.3d 232, 239 (6th Cir. 2018). And the court does not have to give a fuller
explanation “just because the government elects not to oppose” the requested downward variance.
Berry, 565 F.3d at 341. The court’s explanation here, although brief, was reasonable and did not
constitute plain error.
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III
Page also argues that his consecutive sentence is substantively unreasonable, making
largely the same arguments already addressed. He additionally claims that his sentence is higher
than similarly situated defendants, reinforcing its unreasonableness.
We review the substantive reasonableness of Page’s sentence “under a deferential abuse of
discretion standard.” See United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007) (quoting United
States v. Lalonde, 509 F.3d 750, 769 (6th Cir. 2007)). A substantively reasonable sentence is
“sufficient, but not greater than necessary, to comply with the purposes of sentencing in light of
the § 3553(a) factors.” United States v. Nunley, 29 F.4th 824, 834 (6th Cir. 2022). However, if
“the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails
to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent
factor[,]” then that sentence is unreasonable. United States v. Small, 988 F.3d 241, 259 (6th Cir.
2021), cert. denied, 142 S. Ct. 191 (2021) (quoting United States v. Conatser, 514 F.3d 508, 520
(6th Cir. 2008)).
To begin, Page’s sentence is within the Guidelines range, so it is presumed reasonable. See
United States v. Vowell, 516 F.3d 503, 509 (6th Cir. 2008). The decision to order the sentence to
run consecutively also comports with the Guidelines. See § 7B1.3(f).
Moreover, the sentence is not arbitrary because the court gave a reasoned explanation. The
court acknowledged Page’s request “that the punishment for this violation be run concurrent” and
that “the government has no objection” to a concurrent sentence. R. 65, P. 220–21. The court then
exercised its discretion to order that the sentences run consecutively rather than concurrently
because the supervised release “violations [are] separate from the [underlying] crime” and “the
harms to society are different.” Id. at P. 220. Page makes much of the fact that the district court
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relied on the § 3553(a) factors to impose a low-end Guidelines sentence on the drug crime, but a
high-end Guidelines sentence on the supervised release violation. But the fact that a violation
causing a different harm resulted in a different balancing of the § 3553(a) factors does not render
a sentence unreasonable. See United States v. Chambers, No. 21-1331, 2022 WL 612805, at *4
(6th Cir. Mar. 2, 2022). The district court did not abuse its discretion in deciding that “the severity
of the breach [of trust], in light of the leniency in trust the court had extended him” justified the
sentence here. United States v. Johnson, 640 F.3d 195, 204 (6th Cir. 2011); see also United States
v. Morton, 843 F. App’x 699, 706 (6th Cir. 2021). Page violated his conditions of supervised
release imposed for committing a drug crime by committing another drug crime, and he did so
after being granted a lenient time-served sentence for violating conditions of supervised release
five months earlier.
Page argues that the court relied on impermissible factors when determining his sentence.
Although harm to “the dignity and the authority of [the] Court” is not explicitly listed in § 3553(a),
it goes to “the need for the sentence imposed . . . to promote respect for the law,” among other
factors. § 3553(a)(2)(A). The court did not give this factor impermissible weight because the
Guidelines expressly instruct that “at revocation the court should sanction primarily the
defendant’s breach of trust.” U.S.S.G. Ch. 7, Part A(3)(b) (emphasis added). We have explained
that “[a] district court may place great weight on one factor if such weight is warranted under the
facts of the case.” United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013). And the court had
already sufficiently considered the other relevant § 3553(a) factors in its discussion of Page’s
sentence for the drug crime which was the basis for his supervised release violation.
Finally, Page argues that his sentence is unreasonable because he contends it is higher than
those of similarly situated defendants. Even if that is true, there is no requirement that the court
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consider sentencing statistics before issuing a sentence. United States v. Hymes, 19 F. 4th 928,
935–936 (6th Cir. 2021). Thus, it was not an abuse of discretion for the district court to decide
that Page has failed to rebut the presumption of reasonableness afforded his within-Guidelines
sentence.
IV
For these reasons, we affirm the sentence imposed by the district court.
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