Sentence of 48 months in revocation proceeding held to be procedurally and substantively unreasonable.

Andrew Morris was originally sentenced to 156 months’ imprisonment and five-years of supervised release for drug and firearm offenses. United States v. Morris, --- F.4th --- (6th Cir. 2023). Following his release from prison, he was charged with numerous violations of supervised release. The Guidelines range was 51 to 63 months. The district court imposed a 48-month sentence on the firearm count and time served on the drug count. The sentence was vacated on appeal and remanded for resentencing in light of Borden v. United States, 141 S.Ct. 1817 (2021).

Borden eliminated a Grade A violation and the new Guidelines range was 21 to 27 months. An evidentiary hearing was conducted on remand and the district court imposed consecutive sentence of 24 months for both counts. On appeal, the Sixth Circuit held that Mr. Morris’s 48 month sentence is procedurally and substantively unreasonable. United States v. Morris, --- F.4th --- (6th Cir. 2023).

The Sixth Circuit held that the district court could consider Mr. Morris’s prior criminal history even if it was already factored into his Guidelines range. Although the defendant cannot be punished for the violation conduct itself, the district court “may consider the seriousness of the violation conduct when determining the sanction for the breach of trust associated with a supervised-release violation.” Slip Opin. at 7.

The 48-month sentence was procedurally unreasonable because the district court failed to adequately explain its decision to impose consecutive sentences. The only explanation that was clear from the record was that the district court wanted to impose the same sentence it previously imposed notwithstanding the substantial reduction in the Guidelines range. Furthermore, the district court failed to consider many of the 18 U.S.C. § 3553(a) factors including the need to avoid unwarranted sentencing disparities.

The Sixth Circuit also found that the 48-month sentence was substantively unreasonable. Regarding the nature and circumstances of the offense, the district court should have considered only conduct for the original offenses, not the violation conduct and it failed to consider many of the other § 3553(a) factors. The court further failed to explain how Mr. Morris’s case differed from the mine-run revocation case and “its desire to impose the same sentence it had previously imposed was not sufficiently compelling to justify a 21-month upward variance.” Slip Opin. at 11.

The Sixth Circuit pointed out that the district court does not satisfy the Bostic question by merely asking the parties if there is “anything further” they want to address. Slip Opin. at 5.

Judge McKeague concurred in part and concurred in the judgment. He agreed that the district court failed to adequately explain the 48-month sentence but he did not find the sentence to be substantively unreasonable. He took issue with the majority’s conclusion that the district court failed to consider relevant § 3553(a) factors. As he saw it, the essence of Mr. Morris’s substantive reasonableness argument was that the district court should have balanced the § 3553(a) factors differently and he noted that the appellate court’s “job is not to rebalance the factors; it is to ensure that the district court’s balance was reasonable.” Slip Opin. at 14.