United States v. Mark Dushion Lancaster , 319 F. App'x 886 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15322 MARCH 19, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 02-00437-CR-JEC-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK DUSHION LANCASTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 19, 2009)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Mark D. Lancaster appeals the district court’s revocation of his supervised
release and imposition of a prison term of 11 months.1 He argues (1) that the
evidence was insufficient to support the district court’s finding that he violated the
conditions of his supervised release, and (2) that the prison term the court imposed
was procedurally and substantively unreasonable.
I.
Lancaster argues that the evidence was insufficient to establish the grounds
for revocation: that he had (1) changed his residences without permission, (2) lied
to his probation officer about his true residence, (3) failed to support his
dependents as required by failing to pay court-ordered child support, (4) opened a
line of credit without his probation officer’s permission, and (5) willfully failed to
make restitution payments.
We review a district court’s revocation of supervised release for abuse of
discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). A district
court may “revoke a term of supervised release, and require the defendant to serve
in prison all or part of supervised release authorized by statute . . . if the court . . .
finds by a preponderance of the evidence that the defendant violated a condition of
[his] supervised release.” 18 U.S.C. § 3583(e)(3). The preponderance of the
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Lancaster was serving a term of supervised release as part of his sentence of
imprisonment for conspiracy to commit bank fraud.
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evidence standard “does not relieve the . . . court of the duty of exercising the
critical fact-finding function that has always been inherent in the sentencing
process . . . . Preponderance of the evidence is not a high standard of proof. It is
not, however, a toothless standard either.” United States v. Askew, 193 F.3d 1181,
1183 (11th Cir. 1999) (sentence enhancement context).
The evidence fully supported the district court’s finding that Lancaster had
violated several conditions of his supervised release: he established a separate
residence without the probation officer’s permission, opened a line of credit
without the probation officer’s permission, and failed to pay his court-ordered
child support and restitution payments. In sum, the district court did not abuse its
discretion in revoking Lancaster’s supervised release.
II.
Lancaster argues that his sentence was procedurally unreasonable because
the court (1) did not make a specific finding concerning the Guidelines’ sentence
range, and (2) did not adequately discuss the 18 U.S.C. § 3553(a) sentencing
factors because it failed explicitly to mention the factors or otherwise indicate that
it considered them. Lancaster argues that his sentence was substantively
unreasonable because all of the violations the court found were Class C violations
and the product of his inability financially to meet his obligations and his lapses in
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judgment, due to his desire to be with his children.
Section 3583(e) of Title 18 states that, if the district court “finds by a
preponderance of the evidence that the defendant violated a condition of
supervised release,” it may, after considering factors set forth in § 3553(a)(1),
(a)(2)(B)-(D), and (a)(4)-(7), revoke a term of supervised release and “require the
defendant to serve in prison all or part of the term of supervised release authorized
by statute for the offense that resulted in such term of supervised release.”
18 U.S.C. § 3583(e). These factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need
for the sentence imposed . . . (B) to afford adequate
deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide
the defendant with needed . . . [treatment] . . . ; (4) the
kinds of sentence and the sentencing range . . . ; (5) any
pertinent policy statement . . . (6) the need to avoid
unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar
conduct; and (7) the need to provide restitution to any
victims of the offense.
18 U.S.C. § 3553(a).
The Supreme Court has explained that a sentence would be procedurally
unreasonable if the district court improperly determined the Guidelines sentence
range, treated the Guidelines as mandatory, failed to consider the § 3553(a) factors,
based the sentence on clearly erroneous facts, or failed adequately to explain its
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reasoning. Gall, 552 U.S. at ___, 128 S.Ct. at 597. As for revocation proceedings,
it is sufficient that the record show “some indication that the district court was
aware of and considered [the Guidelines].” United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000). The district court is not required explicitly to
articulate that it has considered the § 3553(a) factors, where the record
demonstrates that the court did, in fact, consider those factors. United States v.
Dorman, 488 F.3d 936, 944 (11th Cir. 2007) (in which the court, as here, failed to
state that it considered the § 3553(a) factors). If the district court imposes a
sentence within the Guidelines sentence range, it is not necessary to give a detailed
explanation of its reasons, as 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) (citations omitted). A sentence may be
substantively unreasonable if it does not achieve the purposes of sentencing in
§ 3553(a). United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
Chapter 7 of the Sentencing Guidelines governs violations of supervised
release and contains a policy statement recommending ranges of imprisonment
applicable upon revocation. U.S.S.G. § 7B1.4 (a). The recommended sentence
range for a Grade C violation with a criminal history category of III is 5 to 11
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months. Id. Under 18 U.S.C. § 3583(e)(3), if a district court revokes a term of
supervised release related to a Class D felony, the court may sentence the
defendant up to two years’ imprisonment. The policy statements of Chapter 7 are
merely advisory and not binding. Aguillard, 217 F.3d at 1320.
Because the record shows the basis for the sentence the district court
imposed and that the court imposed it after considering the evidence adduced by
the parties, the provisions of Chapter 7, and several § 3553(a) sentencing factors,
the sentence was procedurally reasonable. Moreover, because the court imposed a
sentence no greater than necessary to comply with the purposes of sentencing, the
sentence was substantively reasonable.
AFFIRMED.
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