Last week, the Sixth Circuit decided United States v. Parrish, which dealt with the defendant's in-prison possession of a cellphone. Mr. Parrish plead guilty to a possession of contraband misdemeanor and asked that he be given a one day sentence to run after his 250-month underlying term. That request was based on Mr. Parrish's argument that he had already been punished for the cell phone by the BOP and that he used the phone to contact family. The government argued for a Guideline sentence of four to ten months of incarceration. The district court imposed a Guideline sentence.
On appeal, Mr. Parrish argued that the sentence was substantively unreasonable, because it was based on factual speculation. Specifically, a woman had provided an anonymous tip to the prison that Mr. Parrish was texting her. The district court determined that that fact undermined Mr. Parrish' claim that he was using the cell phone to contact his family. Instead, the district court found Mr. Parrish was contacting someone it determined did not want to be contacted. Mr. Parrish contended there was no evidence to support that he was using the cell phone to harass someone.
The Sixth Circuit held this was a question of procedural and not substantive reasonableness, as it sounded in the claim that the district court "select[ed] a sentence based on clearly erroneous facts." Rejecting the cases cited by Mr. Parrish for support that this was substantive unreasonableness, the Court held that the prior decisions cited were decided at a time when "it was unsettled in the circuit whether a district court's consideration of an impermissible factor should be treated as procedural or substantive error." The Sixth Circuit noted that it had settled the question as one of procedural reasonableness in 2016 in United States v. Cabrera, 811 F.3d 801 (6th Cir. 2016). Further, the district court is free to make "reasonable inferences from the record."
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