United States v. Richard Lynn Gray ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
AUGUST 18, 2008
No. 07-15953
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 94-00081-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD LYNN GRAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 18, 2008)
Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Richard Gray (“Defendant”) appeals his 18-month sentence imposed
following revocation of his supervised release pursuant to 18 U.S.C. § 3583(e)(3).
The district court did not abuse its discretion in sentencing Defendant to 18
months’ imprisonment. We affirm.
In 1994 Defendant was sentenced to 151 months’ imprisonment and 3
years’ supervised release after pleading guilty to three counts of bank robbery, in
violation of 18 U.S.C. § 2133(a). Supervision commenced in April 2005.
A superseding petition was filed in October 2007 alleging a number of
violations of the terms of Defendant’s supervised release. The petition alleged
positive urinalysis for marijuana on four separate occasions, all in violation of
condition seven of the standard conditions of supervision. The petition also
alleged that Defendant had failed to notify his probation officer after being
questioned by a law enforcement officer about a citation Defendant received for a
safety-belt violation. In addition, the petition alleged that Defendant violated the
special condition of his supervision when he was discharged from a residential re-
entry center for attempting to defeat a drug test at the center.
At his final supervised-release-revocation hearing,1 Defendant admitted to
six separate violations of his terms of supervised release2 Upon learning that
1
The magistrate judge released Defendant following his first hearing, stating that the court would
give him “[o]ne more chance . . . one. Only one.”
2
Defendant admitted to multiple positive drug tests, failure to notify his probation officer after
being arrested or questioned by a law enforcement officer, and failure to reside in a residential re-
entry center as ordered.
2
Defendant had tested positive for marijuana two additional times after his first
revocation hearing, the magistrate judge ordered Defendant detained. The
magistrate judge issued a Report and Recommendation, finding that Defendant
had violated his supervised release. No objections were filed to the report.
At Defendant’s sentencing hearing, the court found that Defendant had
committed six violations of the conditions of his supervised release. The court
determined that the applicable guidelines range was 8 to 14 months, with a
statutory maximum of 2 years imprisonment. After hearing testimony from
multiple witnesses, the court sentenced Defendant to 18 months’ imprisonment
with a request that he be admitted to a substance abuse program. Defendant
objected to the sentence.
On appeal, Defendant argues that the district court failed to consider all of
the section 3553(a) factors when sentencing him. We review a district court’s
decision, after revocation of supervised release, to impose a sentence above the
range recommended by the Sentencing Guidelines for abuse of discretion. United
States v. Brown, 224 F.3d 1237, 1239 (11th Cir. 2000). For sentences imposed
upon revocation of supervised release, “it is enough that there is some indication
the district court was aware of and considered [the applicable guidelines].” United
States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
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For a discretionary revocation of supervised release (as here), the court must
consider the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(e). The
section 3553(a) factors include “the nature and circumstances of the offense and
the history and characteristics of the defendant;” and “the need for the sentence
imposed . . . to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a)(1), (2)(D). We have regularly said that a district
court need not account for every section 3553(a) factor, nor must the court discuss
each factor and the role that it played in sentencing. See, e.g., United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005).
The district court here did not abuse its discretion when it sentenced
Defendant to a term higher than the recommended guideline range. The district
court specifically considered two of the section 3553(a) factors: (1) the history and
characteristics of Defendant; and (2) the need to provide Defendant with
treatment.
Considering Defendant’s history and characteristics, the district court stated,
“I’ve been doing this a while and this is one of the worst records I’ve ever seen
starting with a robbery at 16 and continuing on through his life. He has been
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given many, many chances. He’s been given many, many opportunities to address
his problems having to do with drugs, having to do with responsibility . . . .”
In imposing the sentence, the court also stated that the sentence would “give
you enough that I hope you’ll get through a drug rehabilitation program in the
Bureau of Prisons so that when you come out next time you will be able to handle
it.” The record shows that the district court was aware that the Bureau of Prison’s
drug rehabilitation program requires a minimum commitment of 18 months. The
court also stated that it would make an effort to accelerate the process of getting
Defendant into the rehabilitation program.
AFFIRMED.
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