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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10233
Non-Argument Calendar
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D.C. Docket No. 2:05-cr-00045-SPC-MRM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD RAY HORNE,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 26, 2019)
Before JORDAN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Donald Horne appeals his sentence of 21 months’ imprisonment, which the
district court imposed after revoking his supervised release, pursuant to 18 U.S.C.
§ 3583. Horne challenges his sentence on two grounds. First, he argues that his
sentence violated the Fifth and Sixth Amendments because judicial factual findings
triggered a prison term lasting longer than the maximum sentence for the
underlying crime. Second, Horne argues that his sentence was substantively
unreasonable because of mitigating circumstances.
We conclude that Horne’s first argument is foreclosed by binding precedent.
We also determine that the district court committed no abuse of discretion in
imposing his sentence. Therefore, after careful review, we affirm.
I. BACKGROUND
In 2005, Horne pleaded guilty to possession of ammunition as a person with
a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district
court sentenced Holmes to 180 months’ imprisonment and 5 years’ supervised
release. The court enhanced his sentence pursuant to the Armed Career Criminal
Act (“ACCA”).
In 2016, Horne filed a motion under 28 U.S.C. § 2255 to vacate his
enhanced sentence. He argued that, based on the Supreme Court’s invalidation of
ACCA’s residual clause in Johnson v. United States,
135 S. Ct. 2551 (2015), he no
longer qualified as an armed career criminal. Horne and the government jointly
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stipulated that Horne no longer qualified as an armed career criminal and agreed
that the district court should grant his § 2255 motion. Because Horne had already
been imprisoned for 11 years and, absent the ACCA enhancement, would have
faced a statutory-maximum sentence of 10 years’ imprisonment and 36 months’
supervised release, the government agreed that the district court should vacate its
original judgment and sentence Horne to time served followed by 36 months’
supervised release. The district court accepted the parties’ stipulation, vacated
Horne’s judgment, and imposed a new sentence of time served and 36 months’
supervised release.
The probation office subsequently petitioned for the revocation of Horne’s
supervised release. Pursuant to 18 U.S.C. § 3583(e), the district court “may . . .
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” if the court finds by a preponderance
of the evidence that the defendant violated the terms of his supervised release. 18
U.S.C. § 3583(e)(3). The district court held a revocation hearing, at which Horne
admitted three violations: two instances of cocaine possession and one drug test
that indicated cocaine use. The district court adjudicated Horne in violation of the
terms of his supervised release and proceeded to sentencing. The court identified
the advisory guideline range for the term of imprisonment resulting from the
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supervised release violations as 21 to 24 months. In mitigation, Horne highlighted
the facts that upon his release from prison he was not provided with a structured re-
entry program via a halfway house but still managed to secure employment and
follow the law for about 18 months. Horne also emphasized that he had served
more than the maximum permitted for his § 922(g) conviction and already was
serving a term of incarceration in state court for the drug-related conduct that
formed the basis of the violations of his supervised release. The government
responded by explaining that Horne’s criminal history was extensive: by the time
of his 2005 conviction, Horne had amassed 51 criminal history points, a score the
government characterized as “astronomical.” Doc. 122 at 21. 1
The district court stated that it had looked at “everything,” including the
sentencing factors in 18 U.S.C. § 3553(a),2 Horne’s guideline range, and the
Sentencing Commission’s policy statements.
Id. at 29. It then imposed a
21-month sentence.
1
“Doc. #” refers to the numbered entry on the district court’s docket.
2
Under § 3553(a), the district court is required to impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” of § 3553(a)(2)—the need to reflect the
seriousness of the offense; promote respect for the law; provide just punishment; deter criminal
conduct; protect the public from the defendant’s future criminal conduct; and effectively provide
the defendant with educational or vocational training, medical care, or other correctional
treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
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This is Horne’s appeal.
II. STANDARDS OF REVIEW
This Court reviews the constitutionality of a statute de novo. United States
v. White,
593 F.3d 1199, 1205 (11th Cir. 2010).
We review for an abuse of discretion the reasonableness of the district
court’s sentence upon revocation of supervised release. United States v. Trailer,
827 F.3d 933, 935 (11th Cir. 2016). Under the abuse-of-discretion standard, we
will affirm any reasonable sentence, even if we think that a different sentence
would have been more appropriate. United States v. Irey,
612 F.3d 1160, 1191
(11th Cir. 2010) (en banc). The party who appeals the sentence bears the burden of
showing that the sentence is unreasonable considering the record and the § 3553(a)
factors. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
III. DISCUSSION
On appeal, Horne raises two arguments. First, he argues that 18 U.S.C.
§ 3583(e)(3) violates the Fifth Amendment, the Sixth Amendment, and Apprendi v.
New Jersey,
530 U.S. 466 (2000). Section 3583(e) provides:
The court may . . . 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 without credit for time previously served on
postrelease supervision, if the court, pursuant to the Federal Rules of
Criminal Procedure applicable to revocation of probation or supervised
release, finds by a preponderance of the evidence that the defendant
violated a condition of supervised release, except that a defendant
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whose term is revoked under this paragraph may not be required to
serve on any such revocation more than 5 years in prison if the offense
that resulted in the term of supervised release is a class A felony, more
than 3 years in prison if such offense is a class B felony, more than 2
years in prison if such offense is a class C or D felony, or more than
one year in any other case . . . .
18 U.S.C. § 3583(e)(3).
Horne contends that the statute is unconstitutional because it permitted the
district court to revoke his term of supervised release and impose a new term of
imprisonment that exceeded the statutory maximum sentence available for his
original crime of conviction without conducting a jury trial on the question of
whether he violated his supervised-release conditions.
Second, Horne argues that the district court’s 21-month sentence is
substantively unreasonable. We address each of these issues in turn.
A. Horne Had No Right to a Jury Trial on the Question Whether He
Violated His Supervised-Release Conditions.
Horne argues that his 21-month sentence is unconstitutional. Specifically,
he contends that because he already served the statutory maximum sentence for his
original crime of conviction, the district court could not constitutionally impose a
term of imprisonment that would bring his total time served above that maximum
in the absence of jury findings supporting that new term of imprisonment. In
support of this argument, Horne cites the Supreme Court’s decision in Apprendi
and its progeny. The government responds that the Supreme Court and this Court
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have held that in the supervised-release context, no Apprendi violation occurs
when judicial factfinding increases the term of incarceration. We agree with the
government.
In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490. Similarly, in Alleyne v. United States,
570 U.S. 99
(2013), the Supreme Court held that any fact that “aggravates the legally
prescribed range of allowable sentences” for a crime is an “element” that must be
submitted to a jury.
Alleyne, 570 U.S. at 115-16. But the Supreme Court and this
Court both have held that, although supervised-release violations often lead to
reimprisonment, the violative conduct need only be found by a judge under the
preponderance of the evidence standard, and not by a jury beyond a reasonable
doubt. Johnson v. United States,
529 U.S. 694, 700 (2000); United States
v. Cunningham,
607 F.3d 1264, 1268 (11th Cir. 2010) (“[W]e hold [that]
§ 3583(e)(3) does not violate the Fifth or Sixth Amendments because the violation
of supervised release need only be proven by a preponderance of the evidence, and
there is no right to trial by jury in a supervised release revocation hearing.”). We
are bound by this precedent. See United States v. Brown,
342 F.3d 1245, 1246
(11th Cir. 2003) (explaining that a prior panel precedent binds subsequent panels
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unless or until it is overruled or undermined to the point of abrogation by this
Court sitting en banc or by the Supreme Court). Therefore, Horne has shown no
violation of his Fifth and Sixth Amendment rights when the district court imposed
a new term of imprisonment that exceeded the statutory maximum sentence
available for his original crime of conviction without conducting a jury trial. See
Johnson, 529 U.S. at 700;
Cunningham, 607 F.3d at 1268.
Horne requests a remand for resentencing, arguing that the Supreme Court’s
recent decision in United States v. Haymond,
139 S. Ct. 2369 (2019), cast fresh
light on the constitutionality of § 3583(e)(3). We disagree. Haymond explicitly
reserved the question whether § 3583(e)(3) violates
Apprendi. 139 S. Ct. at 2382
n.7 (“[W]e do not pass judgment one way or the other on § 3583(e)’s consistency
with Apprendi.”).3 Because Haymond did not overrule or abrogate our precedent,
Horne’s argument fails. See
Brown, 342 F.3d at 1246.
B. The District Court’s 21-Month Sentence Was Not an Abuse of
Discretion.
Horne argues that the district court’s 21-month sentence is substantively
unreasonable, reasoning that the district court failed to give sufficient weight to the
facts that: he had served excess time in prison for his underlying offense; he had
been provided with no transitional program upon leaving prison and had worked
3
Because we agree with the government on the merits of Horne’s constitutional
argument, we decline to address the government’s contention that Horne waived that argument.
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hard to stay employed before relapsing; and he would receive no federal credit for
time that he currently is serving in state prison. The government responds that the
district court did not abuse its discretion in imposing a consecutive 21-month
sentence based on Horne’s extensive criminal record. We again agree with the
government.
This Court evaluates the reasonableness of a sentence the district court
imposed by considering the totality of the circumstances.
Tome, 611 F.3d at 1378.
The district court must impose a sentence “sufficient, but not greater than
necessary,” to further the purposes listed in § 3553(a). Kimbrough v. United
States,
552 U.S. 85, 101 (2007) (internal quotation marks omitted). Generally, the
weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court. United States v. Williams,
526 F.3d 1312,
1322 (11th Cir. 2008). A district court commits a clear error of judgment,
however, when it “considers the proper factors but balances them unreasonably”
and imposes a sentence that “does not achieve the purposes of sentencing as stated
in § 3553(a),”
Irey, 612 F.3d at 1189-90 (internal quotation marks omitted). We
will vacate a sentence if we are “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 of reasonable sentences dictated
by the facts of the case.”
Id. at 1190 (internal quotation marks omitted). That a
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sentence falls within the applicable guideline range is one indicator of its
reasonableness. United States v. Hunt,
526 F.3d 739, 746 (11th Cir. 2008). In
contrast, a court’s “single-minded[]” focus on one factor to the detriment of other
relevant sentencing factors “is a symptom of an unreasonable sentence.” United
States v. Crisp,
454 F.3d 1285, 1292 (11th Cir. 2006) (internal quotation marks
omitted).
Here, the district court committed no clear error of judgment in determining
an appropriate sentence. The district court’s 21-month sentence was within
Horne’s guideline range, which indicates its reasonableness. See
Hunt, 526 F.3d at
746. Moreover, the district court was entitled to weigh more heavily Horne’s
extensive criminal history than the mitigating factors Horne highlighted. See
Williams, 526 F.3d at 1322. Given the district court’s statement that it considered
“everything,” Doc. 122 at 29, Horne cannot demonstrate that the court focused
“single-mindedly” on his criminal history to the detriment of other relevant
sentencing factors,
Crisp, 454 F.3d at 1292. For these reasons, Horne has failed to
meet his burden to show that the district court’s 21-month sentence was
substantively unreasonable.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s sentence.
AFFIRMED.
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