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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 17-15726
Non-Argument Calendar
D.C. Docket No. 2:15-cr-00283-LSC-HNJ-21
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY JOSEPH AUBRY,
a.k.a. Tweety,
a.k.a. FNU LNU,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Alabama
(January 10, 2019)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Timothy Aubry appeals his lifetime supervised release term. He argues that
his lifetime supervised release term was procedurally unreasonable because the
district court failed to adequately explain its decision, and substantively
unreasonable because the district court ignored
18 U.S.C. § 3553(a)’s mandate to
impose a sufficient term no greater than necessary.
We generally review the reasonableness of a sentence under a deferential
abuse-of-discretion standard of review. Gall v. United States,
552 U.S. 38, 41
(2007). We determine, first, whether the district court committed any significant
procedural error, and second, whether the sentence was substantively reasonable
under the totality of the circumstances. United States v. Turner,
626 F.3d 566, 573
(11th Cir. 2010).
In analyzing a sentence for significant procedural error, we examine factors
such as whether the district court failed to calculate (or improperly calculated) the
guideline range, treated the guidelines as mandatory, failed to consider the § 3553(a)
factors, selected a sentence based on clearly erroneous facts, or failed to adequately
explain the chosen sentence. Gall,
552 U.S. at 51. A district court, in explaining its
sentence, is not required to explicitly articulate its consideration of each sentencing
factor, so long as the record reflects the court’s consideration of many of those
factors. United States v. Ghertler,
605 F.3d 1256, 1262 (11th Cir. 2010); but see
United States v. Livesay,
525 F.3d 1081, 1093 (11th Cir. 2008) (holding a district
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court’s sentence was procedurally unreasonable where it failed to give any reasoning
or indication of an explanation beyond listing the § 3553(a) factors).
Where a district court offers a party an opportunity to object and that party
does not object to procedural reasonableness at the time of sentencing, we review for
plain error. United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014). In
order to establish plain error, a party must show that (1) the district court erred; (2)
the error was plain; and (3) the error affected the party’s substantial rights. United
States v. Olano,
507 U.S. 725, 732 (1993). If all three conditions are met, we may
exercise our discretion to notice a forfeited error, but only if the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings.
Id.
We look at whether the sentence is substantively reasonable under the totality
of the circumstances. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
The weight accorded to any given § 3553(a) factor is a matter committed to the
sound discretion of the district court. United States v. Clay,
483 F.3d 739, 743 (11th
Cir. 2007). A district court, however, abuses its discretion when it (1) fails to afford
consideration to relevant factors that were due significant weight; (2) gives
significant weight to an improper or irrelevant factor; or (3) commits a clear error of
judgment in considering the proper factors. United States v. Irey,
612 F.3d 1160,
1189 (11th Cir. 2010) (en banc). We will remand only 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. Id. at 1190.
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Congress intended supervised release to assist individuals in their transition to
community life, and thus supervised release fulfills rehabilitative ends, distinct from
those served by incarceration. United States v. Johnson,
529 U.S. 53, 59 (2000).
Accordingly, “[s]entencing courts, in determining the conditions of a defendant’s
supervised release, are required to consider, among other factors, ‘the nature and
circumstances of the offense and the history and characteristics of the defendant,’
‘the need . . . to afford adequate deterrence to criminal conduct; . . . to protect the
public from further crimes of the defendant; . . . and to provide the defendant with
needed educational or vocational training, medical care, or other correctional
treatment.’”
Id. at 59-60 (quoting
18 U.S.C. § 3553(a)). Additionally, we may
consider a defendant’s ability to petition the district court for modification of the
conditions of supervised release when weighing reasonableness under the totality of
the circumstances. See United States v. Trailer,
827 F.3d 933, 937-38 (11th Cir.
2016).
Here, the district court did not procedurally err, plainly or otherwise, when it
sentenced Aubry to a lifetime term of supervised release because it adequately
explained the basis for the sentence and the record indicates its consideration of
several of the applicable § 3553(a) factors including the nature and circumstances of
Aubry’s offense, his history and characteristics, and the need to provide him with
correctional treatment. Furthermore, the supervised release term is not substantively
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unreasonable in light of the applicable § 3553(a) factors and the totality of the
circumstances.
AFFIRMED.
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