United States v. Maurice Harris , 613 F. App'x 871 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12084
Non-Argument Calendar
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D.C. Docket No. 1:01-cr-00051-MP-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 3, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
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In 2002, Maurice Harris pleaded guilty to one count of conspiracy to possess
with intent to distribute more than five grams of crack cocaine, in violation of 21
U.S.C. §§ 846 and 841(a), (b)(1)(B)(iii). In sentencing Harris for that crime, the
district court calculated his advisory guidelines range as 140 to 175 months
imprisonment. The court then granted the government’s substantial-assistance
motion under United States Sentencing Guidelines § 5K1.1 and imposed a below-
guidelines sentence of 72 months imprisonment and 8 years supervised release.
Harris’ term of supervised release began in May 2006.
In August 2013, a probation officer petitioned the district court to revoke
Harris’ supervised release. The petition charged Harris with one violation. That
November, the probation officer filed an amended petition that charged Harris with
four additional violations. At the revocation hearing, Harris admitted to three of
the five violations charged, and the government declined to proceed on the other
two. The district court then calculated an advisory guidelines range of 7 to 13
months imprisonment, which it based on a criminal history category of V (the
criminal history category applicable at the time Harris was originally sentenced)
and a violation grade of C. See U.S.S.G. § 7B1.4(a). But it did not sentence
Harris within that range. Instead, exercising its authority under 18 U.S.C.
§ 3553(a), it varied up and imposed the statutory maximum sentence of 60 months
imprisonment.
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Harris contends that the district court abused its discretion when it sentenced
him to an above-guidelines sentence of 60 months. He argues that, in imposing
that sentence, the district court improperly considered the conduct underlying the
two violations to which he did not admit.
We review for reasonableness a sentence imposed upon revocation of
supervised release. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th
Cir. 2014). When reviewing for reasonableness, we apply a deferential abuse of
discretion standard. See Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007); United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006). We first ensure
that the district court committed no significant procedural error and then examine
whether the sentence was substantively reasonable in light of the totality of the
circumstances. See Gall, 552 U.S. at 51, 128 S. Ct. at 597. The party who
challenges the sentence has the burden of showing that the sentence is
unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. See United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Harris’ 60-month sentence was both procedurally and substantively
reasonable. The district court properly calculated Harris’ advisory guidelines
range pursuant to United States Sentencing Guidelines § 7B1.4. It then considered
that range, decided to vary up, and imposed the statutory maximum sentence of 60
months. As the sentencing transcript shows, in varying up, the court did not
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consider the conduct underlying the two violations that Harris did not admit.
Instead, the court varied up “primarily [because Harris] got a break at the time of
[his original] sentencing” thanks to the government’s substantial-assistance motion
and received a sentence that was almost fifty percent lower than the bottom of his
advisory guidelines range. Under those circumstances, the court’s decision to vary
up and impose a 60-month revocation sentence was not an abuse of discretion. See
18 U.S.C. § 3583(c); id. § 3553(a)(4)(B) (providing that, in the case of a violation
of supervised release, the court must consider the applicable guidelines or policy
statements issued by the Sentencing Commission in fashioning a sentence);
U.S.S.G. § 7B1.4 cmt. n.4 (providing that, “[w]here the original sentence was the
result of a downward departure (e.g., as a reward for substantial assistance), . . . an
upward departure may be warranted”).
AFFIRMED.
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