United States v. Charles Dennis Britton, Jr. , 556 F. App'x 921 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11260
Non-Argument Calendar
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D.C. Docket No. 1:02-cr-00133-CC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES DENNIS BRITTON, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(May 19, 2014)
Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
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Charles Britton appeals his 60-month sentence, imposed after revocation of
supervised release. On appeal, Britton first argues that the district court committed
procedural error in considering as evidence the testimony of Probation Officer
Michelle Eubanks and a police report, and that his sentence is procedurally
unreasonable because it was based on erroneous facts. Second, he argues that his
sentence is substantively unreasonable. Third, he argues that he received a
vindictive sentence in violation of due process because the sentence imposed at
resentencing was based on roughly the same evidence but was greater than his
original sentence.
A. Procedural Error
We review for plain error any claims that were not raised in the district
court. United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776, 123
L. Ed. 2d 508 (1993). We will not correct an error the defendant failed to raise in
the district court unless there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781,
1785, 152 L. Ed. 2d 860 (2002). If all three conditions are met, we will exercise our
discretion to notice a forfeited error only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. To affect
substantial rights under the third prong of the test, the error “must have affected the
outcome of the district court proceedings.” Id. at 632, 122 S.Ct. at 1786.
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A district court may consider hearsay during sentencing as long as: (1) the
evidence has sufficient indicia of reliability; (2) the court makes “explicit findings
of fact as to credibility;” and (3) the defendant has the opportunity for rebuttal.
United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001). In order to show
that evidence lacks the minimum indicia of reliability, the defendant must show
that the challenged evidence: (1) was “materially false;” and (2) “served as a basis
for the sentence.” United States v. Bourne, 130 F.3d 1444, 1447 (11th Cir. 1997).
We review a sentence imposed by the district court upon revocation of
supervised release for reasonableness. United States v. Velasquez-Velasquez, 524
F.3d 1248, 1252 (11th Cir. 2008). In reviewing the reasonableness of a sentence,
we must ensure that the district court committed no significant procedural error,
such as selecting a sentence based on clearly erroneous facts. Gall v. United
States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007).
Britton fails to demonstrate that either Eubanks’ testimony or the police
report are materially false, and therefore, he fails to show that they lack the
required indicia of reliability. Therefore, the district court did not plainly err in
considering this evidence. Similarly, Britton failed to demonstrate that the facts in
Eubanks’ testimony and the police report were clearly erroneous, and therefore,
Britton’s sentence is not procedurally unreasonable. Accordingly, we affirm with
respect to these issues.
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B. Substantive Reasonableness
Once we determine that a sentence is procedurally sound, we must examine
whether the sentence is substantively reasonable in light of the record and the
§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). In
the context of a revocation, courts consider the § 3553(a) factors, including the
history and characteristics of the defendant, the seriousness of the offense, the need
to promote respect for the law, the need to provide just punishment, the need to
afford adequate deterrence, the need to protect the public, and the need to provide
the defendant with medical care or treatment in the most effective manner. United
States v. Velasquez-Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008); 18
U.S.C. § 3553(a). The weight given to a particular factor under § 3553(a) is left to
the sound discretion of the district court. United States v. Williams, 526 F.3d 1312,
1322 (11th Cir. 2008); see Gall, 552 U.S. at 57, 128 S. Ct. at 600 (holding that the
district court may give “great weight” to a particular § 3553 factor). We do not
presume that a sentence outside the Guidelines’ recommended range is
unreasonable and give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify any variance. Gall, 552 U.S. at 51, 128 S.Ct.
at 597. We will remand for resentencing only if it is left with the “definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
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of reasonable sentences dictated by the facts of the case.” United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008).
The district court’s decision to impose a 60-month sentence was
substantively reasonable. The record shows that Britton’s sentence was
appropriate to comport with the purposes of § 3553(a)(2). His sentence reflects his
significant prior criminal offenses, which were substantially similar in nature to the
instant offense, the fact that he committed the instant offense while on supervised
release for his prior offenses, and the seriousness of the instant offense.
Accordingly, we affirm with respect to this issue.
C. Vindictivness of Britton’s Sentence
“[A] general vacatur of a sentence by default allows for resentencing
de novo.” See United States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010).
“[W]hen a criminal sentence is vacated, it becomes void in its entirety; the
sentence—including any enhancements—has been wholly nullified and the slate
wiped clean.” Id. “Consequently, when a sentence is vacated and the case is
remanded for resentencing, the district court is free to reconstruct the sentence
utilizing any of the sentence components.” United States v. Stinson, 97 F.3d 466,
468 (11th Cir. 1996).
On the other hand, the district court may not exercise its discretion in
determining how to apply that package of sanctions with the purpose of punishing
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a successful appeal. Alabama v. Smith, 490 U.S. 794, 798, 109 S. Ct. 2201, 2204,
104 L. Ed. 2d 865 (1989). Due process of law requires that vindictiveness against a
successful defendant/appellant must play no part in his resentencing. Id. In North
Carolina v. Pearce, the Supreme Court held that when a judge imposes a more
severe sentence upon a defendant after a new trial, the reasons for him doing so
must affirmatively appear. 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969),
overruled in part on other grounds, Alabama, 490 U.S. 794, 109 S. Ct. 2201. In
Smith, the Supreme Court limited this presumption to circumstances where there
was a “reasonable likelihood” that the increase in sentence was the product of
actual vindictiveness on the part of the sentencing authority. 490 U.S. at 799, 109
S.Ct. at 2204-05. Where there is no such reasonable likelihood, the burden
remains upon the defendant to prove actual vindictiveness. Id. at 799; 109 S.Ct. at
2205.
Britton’s sentence did not constitute a vindictive sentence because, based on
the resentencing transcript, there is no indication that there was a reasonable
likelihood of vindictiveness. Furthermore, the district court relied on new evidence
presented, specifically Eubanks’s testimony, in imposing the 60-month sentence.
Accordingly, we affirm with respect to this issue.
AFFIRMED.
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