Filed: Apr. 20, 2011
Latest Update: Mar. 02, 2020
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0255n.06 No. 10-4456 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 20, 2011 UNITED STATES OF AMERICA, LEONARD GREEN, Clerk Plaintiff-Appellee, v. On Appeal from the United States District Court for the ACAMIE S. SALTER, Southern District of Ohio at Columbus Defendant-Appellant. / Before: GUY, COOK, and STRANCH, Circuit Judges. RALPH B. GUY, JR., Circuit Judge. Defendant Acamie S. Salter was initially sentenced to probation
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0255n.06 No. 10-4456 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 20, 2011 UNITED STATES OF AMERICA, LEONARD GREEN, Clerk Plaintiff-Appellee, v. On Appeal from the United States District Court for the ACAMIE S. SALTER, Southern District of Ohio at Columbus Defendant-Appellant. / Before: GUY, COOK, and STRANCH, Circuit Judges. RALPH B. GUY, JR., Circuit Judge. Defendant Acamie S. Salter was initially sentenced to probation f..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0255n.06
No. 10-4456
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 20, 2011
UNITED STATES OF AMERICA, LEONARD GREEN, Clerk
Plaintiff-Appellee,
v. On Appeal from the United
States District Court for the
ACAMIE S. SALTER, Southern District of Ohio at
Columbus
Defendant-Appellant.
/
Before: GUY, COOK, and STRANCH, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant Acamie S. Salter was initially
sentenced to probation for crimes involving counterfeit obligations. After she violated the
terms of her probation, the district court revoked Salter’s probation and sentenced her to a
period of incarceration followed by supervised release. Salter appeals that sentence,
asserting the district court’s failure to consider the United States Sentencing Guidelines and
18 U.S.C. § 3553(a) factors was unreasonable. We affirm.
I.
In 2007, Salter pleaded guilty to multiple counts of uttering counterfeit obligations of
the United States and dealing in such obligations, in violation of 18 U.S.C. §§ 472 & 473.
No. 10-4456 2
Salter received a sentence of three years of probation. She was required to serve four months
of the sentence in home confinement.
Nearly three years later, Salter’s probation officer filed a Petition for Warrant or
Summons, alleging that Salter had violated several terms of her probation.1 When Salter
appeared before the district court in November 2010, she did not contest the alleged
violations. Using the United States Sentencing Guidelines Chapter Seven Policy Statements,
the district court determined that all of Salter’s violations were Grade C violations, which in
combination with a criminal history category of I subjected Salter to a three- to nine-month
sentencing range. Despite defense counsel’s request for no further sanction, the district court
sentenced Salter to 90 days of incarceration, followed by one year of supervised release. In
response to the district court’s question whether there were any objections to the sentence,
Salter’s counsel stated there were none. This timely appeal followed.
II.
When a defendant sentenced to probation violates its terms, the district court may
continue probation, with or without modifications, or revoke the probation and resentence
the defendant, so long as the sentence is no greater than the maximum for the original
offense. 18 U.S.C. § 3565(a). In this case, the district court chose to revoke probation and
sentence Salter as described above. We review the sentence imposed by the district court for
1
It was alleged that Salter went to California without permission, where she was charged with a
felony, and that she failed to inform her probation officer about the contact with law enforcement or the new
charge in California, for which she was subject to a warrant. She was also alleged to have failed to provide
a DNA sample.
No. 10-4456 3
reasonableness, just as we would review a sentence imposed following the underlying
conviction. See United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007).
In this appeal, Salter objects only to the procedural reasonableness of her sentence.
Salter asserts that the district court committed procedural error by (1) failing to fully consider
the United States Sentencing Guidelines, and (2) failing to consider any of the 18 U.S.C. §
3553(a) factors. Salter concedes that although she was given the appropriate opportunity as
prescribed by United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004), she did not
object to the district court’s pronouncement of sentence, and that our review is for plain
error. United States v. Vonner,
516 F.3d 382, 385-86 (6th Cir. 2008) (en banc); United States
v. Lalonde,
509 F.3d 750, 757 (6th Cir. 2007). Plain error review affords more deference to
the district court’s determination than does a review for abuse of discretion. It requires that
Salter demonstrate error that (1) is obvious or clear; (2) that affected her substantial rights;
and (3) that affected the fairness, integrity, or public reputation of the judicial proceedings.
Vonner at 386.
In her first claim, Salter contends that although the district court stated that the range
under the Sentencing Guidelines was three to nine months, it never again “addressed” the
Guidelines, and failed to “evaluate what the imposition of a sentence of imprisonment
required under the Guidelines.” Specifically, Salter points to § 7B1.3 of the Sentencing
Guidelines, entitled “Revocation of Probation or Supervised Release (Policy Statement).”
A subsection of that title provides:
No. 10-4456 4
In the case of a Grade B or C violation- (1) Where the minimum term of
imprisonment determined under § 7B1.4 (Term of Imprisonment) is at least
one month but not more than six months, the minimum term may be satisfied
by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that
includes a term of supervised release with a condition that substitutes
community confinement or home detention according to the schedule in §
5C1.1(e) for any portion of the minimum term.
U.S.S.G. § 7B1.3(c)(1). Salter appears to be arguing that the district court failed to follow
the Guidelines here, when it imposed a term of imprisonment as well as a term of supervised
release. For this reason, she asserts, the sentence is procedurally unreasonable.
Salter’s claim is without merit. To the extent she is arguing that the district court
erred by sentencing her to a term that included both a term of incarceration and a period of
supervised release, she is incorrect. U.S.S.G. § 7B1.3 (c)(1) states only that when the
minimum sentence for a probation or supervised release violation is more than one but no
more than six months, the district court may substitute community confinement or home
detention for all—or a portion—of that sentence. As the Seventh Circuit has opined, this
Guideline “. . . does not mean that supervised release may not be imposed unless it is done
as part of a plan to substitute community confinement or home detention for part of a
defendant’s prison term.” United States v. Adams, 240 F. App’x 728, 731 (7th Cir. 2007).
Because the district court did not misapply U.S.S.G. § 7B1.3(c)(1), we find no error in the
court’s failure to substitute home detention for any portion of the term imposed.
Salter’s next assertion, that the district court failed to calculate or consider any of the
18 U.S.C. § 3553(a) factors, is equally unavailing. After the district court calculated the
guideline range, counsel for Salter described Salter’s violations, and asked that the district
No. 10-4456 5
court terminate Salter’s supervision. The district court’s immediate reaction was to state that
rewarding Salter with no punishment would be inappropriate under the circumstances. The
district court confirmed with counsel that the new charges in California were felony charges,
and stated its opinion that the probation officer’s recommendation was generous to Salter.
Following the district court’s pronouncement of sentence, Salter requested a sentence of
house arrest so that she could preserve her employment and living situation. The district
court entered into the following exchange with Salter:
THE COURT: Ms. Salter, that’s the same type of argument I had when
I put you on probation, and you screwed it up. That’s why I put you on
probation. You had employment in a nursing home back then. You had a
place to live. I don’t recall the argument with regard to the house. So, how
many times do you want to make that argument to me? It’s not going to work
anymore. I’m sorry.
THE DEFENDANT: Please just give me a chance, Your Honor.
THE COURT: I know -- I’d love to give you a chance.
THE DEFENDANT: Please.
THE COURT: But I think I did. I actually did back [at the time of the
original sentence]. And, you know, uttering counterfeit obligations is one
thing, but then we get into similar types of fraudulent activities out in
California.
No, Ms. Salter, I have sympathy for you. I really do. I have sympathy
for the position you find yourself in, and I feel sorry for you, but I don’t feel
sorry enough to say no jail time at all. That, to me, is no penalty at all for
violating what I told you to do and violating the law.
Both the district court’s earlier commentary as well as this exchange with the
defendant clearly demonstrate the district court’s consideration of Salter’s “history” and
“circumstances,” the need for the sentence “to promote respect for the law,” and the “kinds
No. 10-4456 6
of sentences available.” See 18 U.S.C. § 3553(a)(1), (a)(2)(A), & (a)(3). While the district
court may not have made “explicit reference” to the listed factors in § 3553(a), no such
“ritual incantation” is required. See United States v. Polihonki, 543 F.3d 318, 324 (6th Cir.
2008). No error, plain or otherwise, was committed by the district court in its fashioning of
a reasonable sentence under the circumstances presented here.
The district court is AFFIRMED.
