United States of America v. Harold Eugene Hayes

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0250n.06
No. 12-5826
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HAROLD EUGENE HAYES,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
BEFORE: GILMAN, ROGERS, and SUTTON, Circuit Judges.
PER CURIAM. Harold Eugene Hayes appeals the district court’s judgment of conviction
and sentence.
Hayes pleaded guilty to escape, in violation of 18 U.S.C. § 751(a). The district court
determined that, based on Hayes’s total offense level of seven and his criminal history category of
VI, his guidelines range of imprisonment was fifteen to twenty-one months. The court noted,
however, that its usual practice when sentencing defendants who committed walkaway escapes was
to impose a term between the high end of the guidelines range and the statutory maximum sentence
of sixty months. After hearing from the parties, the district court varied upward from the guidelines
and sentenced Hayes to thirty months in prison.
On appeal, Hayes argues that the district court’s practice of imposing an above-guidelines
sentence on certain escapees rendered his sentence both procedurally and substantively unreasonable

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No. 12-5826
United States v. Hayes
because the court effectively relied on an improperly calculated guidelines range, failed to give
adequate consideration to the relevant sentencing factors, and selected his sentence arbitrarily. Hayes
also argues that the district court failed to expressly adjudicate him guilty of any offense.
We review a sentence under a deferential abuse-of-discretion standard for reasonableness,
which has both a procedural and a substantive component. United States v. O’Georgia, 569 F.3d
281, 287 (6th Cir. 2009). A sentence may be procedurally unreasonable if the district court
improperly calculates the guidelines range, treats the guidelines as mandatory, or fails to consider
the 18 U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence may be
substantively unreasonable if the district court selects the sentence arbitrarily or fails to consider
pertinent § 3553(a) factors. United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008).
The district court did not abuse its discretion in imposing Hayes’s sentence. The court
correctly calculated Hayes’s guidelines range of imprisonment, discussed with defense counsel
whether a within-guidelines sentence was appropriate, and identified several reasons for varying
upward from the guidelines, including Hayes’s history of criminal activity and substance abuse, his
disciplinary infractions while incarcerated, and the need to promote deterrence and protect the public.
Given the district court’s exchange with defense counsel and its explanation for the upward variance,
the record does not support Hayes’s contention that the court effectively relied on an improperly
calculated guidelines range, failed to properly consider the relevant sentencing factors, or selected
his sentence arbitrarily. Additionally, despite Hayes’s argument to the contrary, the district court’s
judgment explicitly adjudicated him guilty of committing escape in violation of 18 U.S.C. § 751(a).
Accordingly, we affirm the district court’s judgment.
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