United States v. Freeman Pollard , 304 F. App'x 762 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 4, 2008
No. 08-12255 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-20854-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREEMAN POLLARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 4, 2008)
Before CARNES, WILSON and FAY, Circuit Judges.
PER CURIAM:
While on supervised release, Freeman Pollard committed a third-degree
grand theft and drove without a valid license. The district court revoked Pollard’s
supervised release, imposed a 12-month-and-1-day sentence for the violations, and
ordered that the sentence run consecutive to Pollard’s 63-month sentence imposed
by the state court. Pollard appeals the district court’s sentence. We affirm.
STANDARD OF REVIEW
Although Pollard objected to the district court’s sentence, his objection was
very general. He did not assert the errors that he now alleges on appeal.
Accordingly, his claims will be reviewed for plain error. United States v.
Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995).
Under plain error review, “(1) there must be error; (2) the error must be
plain; and (3) the error must affect substantial rights.” Id. (citations omitted). If
these criteria are met, we may correct the plain error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993)
(citation and quotation marks omitted). But
where the effect of an error on the result in the district
court is uncertain or indeterminate – where we would
have to speculate – the appellant has not met his burden
of showing a reasonable probability that the result would
have been different but for the error; he has not met his
burden of showing prejudice; he has not met his burden
of showing that his substantial rights have been affected.
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United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005) (citation
omitted).
DISCUSSION
Pollard argues that the district court erroneously relied on information in the
Supplemental Report because he was not provided with the Report at least 35 days
before sentencing and because the Report was not made a part of the record. He
argues that the court incorrectly stated that his criminal history category was VI
instead of II and that the court’s error led to an unreasonable sentence. He further
argues that the court erred by not properly considering the § 3553(a) factors in
imposing the sentence. For the reasons discussed below, we find no plain error.
A probation officer must conduct a presentence investigation and submit a
report to the court unless “(i) [a] statute requires otherwise; or (ii) the court finds
that the information in the record enables it to meaningfully exercise its sentencing
authority under 18 U.S.C. § 3553, and the court explains its finding on the record.”
F ED. R. C RIM. P. 32(c)(1)(A). “The probation officer must give the presentence
report to the defendant, the defendant’s attorney, and an attorney for the
government at least 35 days before sentencing unless the defendant waives this
minimum period.” F ED. R. C RIM. P. 32(e)(2).
The U.S. S ENTENCING G UIDELINES M ANUAL recommends a sentencing
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range of 6 to 12 months’ imprisonment for a Grade B violation of supervised
release and a category II criminal history. U.S. S ENTENCING G UIDELINES M ANUAL
§ 7B1.4 (2007). It recommends a range of 21 to 27 months’ imprisonment for a
Grade B violation and category VI criminal history. § 7B1.4. The court
determines the appropriate sentencing range by applying “the [criminal history]
category applicable at the time the defendant originally was sentenced to a term of
supervision.” § 7B1.4(a).
When imposing a sentence, the district court is not required to discuss
methodically each factor. See United States v. Scott, 426 F.3d 1324, 1329-30 (11th
Cir. 2005). If the court imposes a sentence within the guidelines, it is not
necessary to give a detailed explanation of its reasons, so long as it “set[s] forth
enough to satisfy the appellate court that [it] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal decisionmaking authority.”
United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (per curiam) (citation
and quotation marks omitted).
Here, Pollard specifically asked the court to accept the government’s waiver
of the presentence investigation. Pollard accordingly waived his rights under Rule
32(e)(2). According to the Supplemental Report, Pollard had a lengthy criminal
history, even before his original sentencing. The district court indicated that
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Pollard’s record would have qualified him for a category VI criminal history. The
court, however, applied a category II criminal history, pursuant to an agreement
between the parties. Based on Pollard’s Grade B violation, the court initially
imposed a 12-month sentence. The court subsequently modified the sentence to 12
months and 1 day so that Pollard could receive gain time.
In imposing the sentence, the court noted that Pollard’s criminal history was
“horrendous.” It expressed concern that Pollard had failed to comply with the
conditions of his release. It also noted that its previous sentences had been
relatively lenient and that “the time for breaks . . . is now over.” The court’s
remarks indicate that it had considered Pollard’s history. They also indicate that
the court intended that the sentence promote respect for the law, deter future
criminal conduct, and protect the public from any of Pollard’s future crimes. See
18 U.S.C. § 3553(a)(1), (2)(A)-(C). Although the district court did not explicitly
consider each § 3553(a) factor, it provided “a reasoned basis for exercising” its
judgment. Agbai, 497 F.3d at 1230.
In light of the foregoing, the district court did not plainly err in determining
Pollard’s sentence. But even if it did, Pollard cannot show that any of the court’s
alleged errors affected his substantial rights because he has not shown that his
sentence would have been different but for the error. See Rodriguez, 398 F.3d at
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1301.
The court indicated its intent to sentence Pollard at the high end of the 6 to
12 month guideline range. Pollard’s high-end sentence was not based solely on the
court’s perception that he received a “break” at his original sentencing. The court
noted that Pollard did not receive any jail time for his first supervised release
violation and that he subsequently failed to comply with the court’s newly imposed
conditions of supervised release. The court also recognized that the state court had
given Pollard numerous “breaks” over the years, even though he had amassed
20 criminal-history points, many of which were based on burglaries and grand
thefts. The court’s discussion indicates that Pollard received a high-end sentence
based on the cumulative effect of Pollard’s past lenient sentences and his repeated
failure to comply with the law. Because it is unlikely that Pollard would have been
sentenced differently, any alleged error was harmless.
CONCLUSION
After carefully reviewing the record and the parties’ briefs, we find no plain
error.
AFFIRMED.
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