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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11822
Non-Argument Calendar
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D.C. Docket No. 7:92-cr-00005-HL-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARL JEROME HOLMES,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(October 22, 2019)
Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Carl Holmes appeals his 24-month above-guidelines sentence, which the
district court imposed upon revocation of supervised release. Holmes argues that
his sentence is procedurally unreasonable. After careful review, we affirm.
I. BACKGROUND
Holmes completed a term of incarceration on firearms-related charges and
began a five-year term of supervised release. During that term, the probation
office petitioned the district court for revocation of his supervised release. The
probation office alleged that Holmes had committed seven violations of the
conditions of his supervision: failure to report to the probation officer as required
(violations 1 and 2); failure to timely report arrest or questioning by a law
enforcement officer (violation 3); failure to refrain from violating the law
(violation 4); possession or use of a controlled substance by testing positive for
marijuana and cocaine (violations 5 and 6); and failure to participate in an
approved substance abuse treatment program (violation 7). The revocation report
determined that Holmes’s guideline range was 8-14 months’ imprisonment.
At an evidentiary hearing, Holmes initially contested all seven violations but
then admitted that he used marijuana on two separate occasions. Holmes’s
probation officer testified that Holmes failed to comply with his reporting
obligations and refused to participate in court-ordered substance abuse classes.
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The district court dismissed violations 4 and 6 and found by a preponderance of the
evidence that Holmes had committed violations 1, 2, 3, 5, and 7.
At sentencing, the district court adopted the revocation report’s guideline
range of 8-14 months but found that “the guideline range in this case is . . .
inadequate.” Doc. 134 at 33.1 The court emphasized that Holmes knowingly had
violated the terms of his supervised release, several times, without any valid
justification. And the court considered the need “[t]o reflect the seriousness of the
offense, to promote respect for the law, to provide just punishment for the violation
offenses, to afford adequate deterrence to criminal conduct, and to protect the
public from further crimes of the defendant.” Id. at 33-34 (citing
18 U.S.C.
§ 3553(c)(2)). The court therefore sentenced Holmes to 24 months’ imprisonment.
Holmes, through counsel, stated that he did not object to the sentence.
On appeal, Holmes now challenges the procedural reasonableness of his
sentence.
II. STANDARDS OF REVIEW
In reviewing the procedural reasonableness of a sentence, we must “ensure
that the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
1
“Doc. #” refers to the numbered entry on the district court’s docket.
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on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Gall v. United States,
552 U.S. 38, 51 (2007). Although ordinarily we review the
procedural reasonableness of a sentence for an abuse of discretion, United States v.
Irey,
612 F.3d 1160, 1188-89 (11th Cir. 2010) (en banc), where the defendant fails
to object at the time of sentencing, we generally review only for plain error, United
States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014). To prevail under
plain error review, the defendant must demonstrate “(1) that the district court erred;
(2) that the error was plain; and (3) that the error affected his substantial rights.”
Id. (alteration adopted) (internal quotation marks omitted). “If all three conditions
are met, then we decide whether the error seriously affected the fairness, integrity,
or public reputation of judicial proceedings.”
Id. (alterations adopted) (internal
quotation marks omitted). Regardless of whether a defendant objects, though, we
review de novo a claim that the district court failed to explain the reasons for an
above-guidelines sentence. United States v. Parks,
823 F.3d 990, 996 (11th Cir.
2016).
III. DISCUSSION
Holmes argues that the district court improperly considered
18 U.S.C.
§ 3553(a)(2)(A), which he argues cannot apply upon revocation of supervised
release, and failed to adequately explain the evidence relied upon and the reasoning
behind the upward variance. We discern no reversible error.
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As to his first challenge, Holmes argues that the district court erred in
considering § 3553(a)(2)(A)—the need for the sentence imposed “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment of the offense.”
18 U.S.C. § 3553(a)(2)(A). He contends that these
factors are applicable only in an initial sentencing proceeding and cannot be
considered upon revocation of supervised release. Holmes failed to object to the
district court’s consideration of this factor; thus, we review only for plain error.
Vandergrift, 754 F.3d at 1307. We previously have held that a district court’s
consideration of these factors in the supervised-release context was not plain error.
See id. at 1308-09. In Vandergrift, we explained that “[t]he text of § 3583(e) does
not . . . explicitly forbid a district court from considering § 3553(a)(2)(A)”; the
Supreme Court had not addressed whether a district court could do so; the circuits
were split on the issue; and we had not addressed the issue in a published opinion.
Id. at 1308. Since Vandergrift, neither this Court nor the Supreme Court has
weighed in. Thus, Vandergrift’s analysis applies here, and any error Holmes
alleges could not have been plain.
Second, Holmes argues that, contrary to the requirement in
18 U.S.C.
§ 3553(c)(2), the district court gave “[n]o explanation as to the facts or evidence
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relied upon” in imposing an above-guidelines sentence.2 Appellant’s Br. at 12.
Section 3553(c)(2), which applies when the district court imposes an upward
variance, obliges a district court to “state in open court the reasons for its
imposition of the particular sentence” and “the specific reason for the imposition of
a sentence different from that described” in the Guidelines.
18 U.S.C.
§ 3553(c)(2). 3 To satisfy its obligation, the district court must “set 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.” Rita v.
2
The government argues that our review of this challenge should be for plain error,
asserting that Holmes challenges only the district court’s failure to consider the § 3553(a)
factors, not the court’s failure to comply with § 3553(c)(2). When a defendant does not object to
the district court’s failure to consider the § 3553(a) factors, our review is for plain error.
Vandergrift, 754 F.3d at 1307. But when a defendant does not object to the district court’s
failure to explain in open court the reasons for its above-guidelines sentence as required by
§ 3553(c)(2), our review is de novo. Parks, 823 F.3d at 996. In Parks we detailed the tension
between these two rules but ultimately determined that there was a “plausible basis” for
understanding the two in tandem. Id. We understand Holmes to be asserting the latter type of
challenge. See Appellant’s Br. at 11-12 (citing United States v. Agbai,
497 F.3d 1226, 1230
(11th Cir. 2007) (discussing district court’s obligations under § 3553(c))).
We note that even if Holmes intended to challenge the district court’s failure to consider
the § 3553(a) factors, that challenge would fail. The court expressly considered several such
factors, including the need “to reflect the seriousness of the offense, to promote respect for the
law, to provide just punishment for the violation offenses, to afford adequate deterrence to
criminal conduct, and to protect the public from further crimes of the defendant.” Doc. 134 at
34; see
18 U.S.C. § 3553(a)(2)(A)-(C) (same).
3
Holmes argues in his reply brief that the district court failed to state the basis for its
above-guidelines sentence “with specificity in a statement of reasons” as required by
18 U.S.C.
§ 3553(c)(2). But he did not make this argument in his initial brief, instead arguing only that the
district court failed to state reasons at the sentencing hearing for the sentence imposed. “An
appellant in a criminal case may not raise an issue for the first time in a reply appellate brief.”
United States v. Fiallo-Jacome,
874 F.2d 1479, 1481 (11th Cir. 1989). Thus, we do not consider
his argument regarding the district court’s statement of reasons here.
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United States,
551 U.S. 338, 356 (2007); see Parks, 823 F.3d at 997 (same). The
court must go beyond calculating the guidelines range and “suggest[ing] that
various factors informed [its] choice of sentence,” and instead must “answer the
key question of why [it] imposed an above-guidelines sentence” so that we can
“discharge our duties of appellate review.” Parks, 823 F.3d at 997; see id.
(explaining that failure to do so is “per se” reversible error). However, “[w]hen
evaluating a district court’s reasons for imposing a particular sentence, an appellate
court may consider the record from the entire sentencing hearing and need not rely
upon the district court’s summary statement made at the closing of the sentencing
hearing.” United States v. Suarez,
939 F.3d 929, 934 (11th Cir. 1991).
The district court discharged its obligations under § 3553(c)(2). Holmes
focuses on the district court’s summary statement that a guidelines-range sentence
would be inadequate, but the whole of the sentencing proceeding demonstrates that
the district court had sufficient reason for the variance it imposed. The district
court explained that Holmes knowingly committed several violations of the terms
of his supervised release. Holmes, the court explained, had no valid justification
for doing so. Moreover, the district court—expressly citing § 3553(c)(2)—found
that an above-guidelines sentence best reflected the seriousness of Holmes’s
violations, promoted respect for the law, provided just punishment for the
violations, afforded adequate deterrence, and protected the public. Considering the
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entirety of the district court’s statements at sentencing, we are satisfied that the
court “considered the parties’ arguments and ha[d] a reasoned basis” for the
upward variance. Rita,
551 U.S. at 356. We therefore discern no error.
IV. CONCLUSION
For the foregoing reasons, we affirm the sentence the district court imposed
upon revocation of supervised release.
AFFIRMED.
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