USCA11 Case: 21-13530 Date Filed: 06/10/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13530
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH HENRY PENSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:11-cr-00034-WMR-WEJ-1
____________________
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2 Opinion of the Court 21-13530
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Less than two months after Joseph Penson began serving his
term of supervised release, he started violating its conditions.
Among other things, he drove under the influence on two
occasions and committed several traffic violations. The district
court revoked Penson’s term of supervised release and sentenced
him to 13 months’ imprisonment, followed by an additional three
years’ supervised release. As a special condition of his new term of
supervised release, the district court prohibited Penson from
driving a vehicle.
Penson argues on appeal that his sentence is substantively
unreasonable and that the district court erred by ordering him not
to drive. In addition, Penson and the government agree that the
district court erred by imposing a term of supervised release that
exceeds the statutory maximum. Based on the latter error, we
vacate Penson’s sentence in part and remand.
I.
In 2012, Penson pleaded guilty to possession of a firearm by
a convicted felon in violation of
18 U.S.C. § 922(g)(1), and he was
sentenced to ten years’ imprisonment plus three years’ supervised
release. He had prior felony convictions for aggravated assault,
violating the Georgia Controlled Substances Act, and making a
false representation on a fingerprint card. At the time of his
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21-13530 Opinion of the Court 3
felon-in-possession conviction, his record also included a lengthy
list of other criminal convictions, including four convictions for
driving under the influence in a ten-year span.
Penson’s criminal conduct continued during his term of
supervised release. He was arrested twice for driving under the
influence and related traffic offenses, and he admitted those
violations at his revocation hearing. He also admitted to failing to
report for two urinalysis screens, failing to report an arrest and
other contact with law enforcement to his probation officer,
driving with a suspended license, driving too fast for conditions,
and failing to stop for a school bus that was loading children.
Based on those admissions, the probation officer
recommended that the district court sentence Penson at the high
end of the Sentencing Guidelines range to 13 months’
imprisonment. Penson and the government jointly recommended
only seven months’ imprisonment, at the low end of the Guidelines
range, plus a period of supervised release that would include an
alcohol treatment program. As his counsel explained, Penson
suffered from a “debilitating and serious addiction to alcohol.” The
district court took up the probation officer’s recommendation,
sentencing Penson to 13 months’ imprisonment.
The district court also imposed an additional three-year
term of supervised release to follow, which it called “the maximum
term that the Court can order.” The court attached several
conditions that Penson would have to abide by during the
supervised release term. In addition to requiring that Penson
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4 Opinion of the Court 21-13530
participate in a substance abuse treatment program and refrain
from using or possessing alcohol, the district court also prohibited
him from driving a vehicle.
Penson now appeals, arguing that his term of imprisonment
is substantively unreasonable and that the district court erred by
restricting him from driving during his supervised release term. In
response, the government says that the district court did not err on
those grounds, but did erroneously exceed the maximum term of
supervised release.
II.
We generally review the substantive reasonableness of a
sentence imposed upon revocation of supervised release for abuse
of discretion. United States v. Trailer,
827 F.3d 933, 935–36 (11th
Cir. 2016). The same standard applies when we review the
imposition of special conditions of supervised release. United
States v. Taylor,
997 F.3d 1348, 1352 (11th Cir. 2021). We
ordinarily assess the legality of a sentence imposed upon
revocation of supervised release de novo. United States v.
Mazarky,
499 F.3d 1246, 1248 (11th Cir. 2007). But when “a
defendant fails to object to an error before the district court, we
review the argument for plain error.” United States v. Raad,
406
F.3d 1322, 1323 (11th Cir. 2005).
Penson objected to his sentence only on the ground that it
was substantively unreasonable. Accordingly, we review that issue
for abuse of discretion, and the remaining issues for plain error.
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21-13530 Opinion of the Court 5
The plain error standard requires “(1) an error (2) that is plain and
(3) that has affected the defendant’s substantial rights; and if the
first three prongs are met, then a court may exercise its discretion
to correct the error if (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Moore,
22 F.4th 1258, 1264–65 (11th Cir. 2022) (quotation
omitted).
III.
Penson first argues that his sentence of 13 months’
imprisonment is substantively unreasonable. He contends that the
district court should have followed the joint recommendation of
seven months’ imprisonment, based on his need for rehabilitation
from his alcohol addiction and his stable behavior before his
addiction worsened. He also says that by choosing a higher
sentence, the district court improperly focused on protecting the
public and deterring future offenses.
When a defendant violates conditions of supervised release,
the district court has authority to revoke the term of supervised
release and impose a term of imprisonment after considering most
of the factors set forth in
18 U.S.C. § 3553(a).
18 U.S.C. § 3583(e)(3);
United States v. Gomez,
955 F.3d 1250, 1257–58 (11th Cir. 2020).
These factors include the nature and circumstances of the offense;
the history and characteristics of the defendant; the need for the
sentence imposed to deter, to protect the public, and to provide the
defendant with necessary training, care, and treatment; the kind of
sentence and the sentencing range established by applicable
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guidelines or policy statements; policy statements issued to further
the purposes of sentencing; the need to avoid unwarranted
sentence disparities among similarly situated defendants; and the
need to provide restitution to victims.
18 U.S.C. § 3583(e); see
id.
§ 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7).
A district court abuses its discretion in determining a
sentence if it fails to consider relevant factors that were due
significant weight, gives significant weight to improper or
irrelevant factors, or commits a clear error of judgment in
balancing the proper factors. United States v. Irey,
612 F.3d 1160,
1189 (11th Cir. 2010) (en banc). We may not vacate the district
court’s sentence “merely because we would have decided that
another one is more appropriate.”
Id. at 1191. And we expect that
sentences within the applicable sentencing range will be
reasonable. See Gomez, 955 F.3d at 1260.
The core of Penson’s challenge is that the district court erred
when weighing the proper factors. But the court has substantial
discretion when it conducts this balancing, and it may accord
“greater weight to one or more factors than to the others.” Id. at
1257. Even if the district court put the most weight on protecting
the public and deterring Penson from future offenses, as Penson
contends, the court did not abuse its discretion by doing so. Penson
admitted to driving under the influence multiple times while on
supervised release, and the district court appropriately reasoned
that a sentence at the high end of the Guidelines range would deter
him from engaging in behavior that puts himself and others at risk.
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21-13530 Opinion of the Court 7
The district court’s decision to impose a higher sentence, in line
with the probation officer’s recommendation, was substantively
reasonable.
IV.
Penson next argues that the district court erred by
prohibiting him from driving as a special condition of supervised
release. A district court may impose special conditions that (1) “are
reasonably related to the nature and circumstances of the offense,
history and characteristics of the defendant, and the needs for
adequate deterrence, to protect the public, and to provide the
defendant with needed training, medical care, or correctional
treatment in an effective manner”; (2) “involve no greater
deprivation of liberty than is reasonably necessary”; and (3) “are
consistent with any pertinent policy statements issued by the
Sentencing Commission.” Taylor, 997 F.3d at 1353;
18 U.S.C.
§ 3583(d); see U.S. Sentencing Guidelines § 5D1.3(b) (Nov. 2018).
The court must also consider “what conditions best accomplish the
purposes of sentencing.” Taylor, 997 F.3d at 1353.
Out of the several conditions that the district court imposed,
Penson challenges only the prohibition against driving a vehicle.
He argues that the condition is not reasonably related to the
sentencing factors and deprives his liberty to a greater degree than
necessary. We conclude that the district court did not plainly err.
First, the condition is reasonably related to the sentencing
factors. Penson’s extensive record of driving under the influence
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and traffic offenses makes clear that the driving restriction protects
the public and deters him from continuing his dangerous behavior.
Penson argues that he needs to drive in order to travel to his job,
to his appointments with his supervising officer, and to his alcohol
treatment program. Depriving him of this means of
transportation, he says, will undermine his rehabilitation. But even
accepting that his inability to drive will make travel significantly
less convenient, nothing in the record supports the conclusion that
Penson could not use another means of transportation. And a
condition does not need to be supported by all of the factors;
instead, “each is an independent consideration to be weighed.”
United States v. Moran,
573 F.3d 1132, 1139 (11th Cir. 2009)
(quotation omitted). On balance, the district court appropriately
determined that a complete restriction on driving was reasonably
related to the relevant factors.
Second, the condition does not clearly involve a greater
deprivation of liberty than reasonably necessary. Penson argues
that the district court could have restricted him from driving
outside of regular business hours only, but no binding authority
supports finding a driving restriction invalid on that basis. Instead,
contrary authority exists from the Sixth Circuit, which upheld an
absolute prohibition on driving as a condition of a three-year term
of supervised release in United States v. Kingsley,
241 F.3d 828,
837–40 (6th Cir. 2001). There, the court concluded that the driving
restriction was reasonable given the defendant’s “recidivist
inclination to commit serious life-threatening vehicular offenses.”
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Id. at 838–39. The defendant in Kingsley had “mentally-
destabilizing chemical dependencies,” including an alcohol
addiction, and so could not “be trusted to responsibly drive a
vehicle at any time, for any reason.”
Id. at 839. Similar
considerations support the district court’s decision not to impose a
more limited driving restriction here, given Penson’s criminal
history and his severe alcohol addiction. The court did not plainly
err by ordering Penson not to drive during his term of supervised
release.
V.
The parties agree that the district court plainly erred by
issuing a term of supervised release that exceeds the statutory limit.
When a district court imposes a supervised release term to follow
imprisonment upon revocation of supervised release, the new
supervised release term “shall not exceed the term of supervised
release authorized by statute for the offense that resulted in the
original term of supervised release, less any term of imprisonment
that was imposed upon revocation of supervised release.”
18
U.S.C. § 3583(h) (emphasis added). As our Circuit has explained,
the “maximum allowable supervised release” must be set off by
“the aggregate length of any terms of imprisonment that have been
imposed upon revocation.” Mazarky,
499 F.3d at 1250; see also
Moore, 22 F.4th at 1265.
The authorized term of supervised release for Penson’s
felon-in-possession offense was three years.
18 U.S.C. §§ 924(a)(2),
3559(a)(3), 3583(b)(2). So the maximum term of supervised release
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that Penson could receive, following 13 months’ imprisonment,
was 23 months. The three-year term of supervised release that the
district court imposed was 13 months too long.
This error warrants correction under the plain error
standard. Moore, 22 F.4th at 1264–65. The error is plain under the
text of § 3583(h) and this Circuit’s decisions, it affects substantial
rights by exposing Penson to an unauthorized term of supervised
release, and it undermines judicial proceedings by causing “an
unnecessary deprivation of liberty.” See id. at 1265 (quotation
omitted).
* * *
We AFFIRM the term of imprisonment and the special
condition of supervised release. We VACATE the term of
supervised release and REMAND for the district court to
resentence Penson to serve no more than 23 months of supervised
release consistent with this opinion.
