United States v. Charles Dennis britton, Jr. ( 2013 )

Case: 12-10738 Date Filed: 01/23/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10738
Non-Argument Calendar
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D.C. Docket No. 1:02-cr-00133-CC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CHARLES DENNIS BRITTON, JR.,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 23, 2013)
Before HULL, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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Charles Dennis Britton, Jr., appeals his 36-month sentence imposed upon
revocation of his supervised release. First, he argues that the district court erred
by failing to elicit objections after imposing the sentence, in violation of United
States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other grounds by
United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc). Second, he
argues that the district court erred by failing to correctly calculate, or even
reference, his advisory guideline range of 24 to 30 months’ imprisonment during
the revocation hearing. We vacate Britton’s sentence and remand for re-
sentencing.1
I.
In Jones, we held that “after imposing a sentence, the district court must
give the parties an opportunity to object to the court’s ultimate findings of fact,
conclusions of law, and the manner in which the sentence is pronounced, and must
elicit a full articulation of the grounds upon which any objection is based.” United
States v. Campbell, 473 F.3d 1345, 1347-48 (11th Cir. 2007) (applying Jones to
supervised release revocation proceedings). A court violates Jones when it
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Britton also argues that the court erred by increasing his original 34-month
sentence by 2 months based on factually incorrect information. We need not address this issue in
light of the necessity to remand for re-sentencing, but we note that on remand the district court
should consider the factual basis behind this increase in Britton’s sentence. Additionally, in light
of our remand, we need not address whether Britton’s sentence is substantively unreasonable.
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“merely asks if there is ‘anything further?’ or ‘anything else?’ and neither party
responds with objections.” Id. at 1348. When the district court fails to comply
with Jones, we will generally vacate the sentence and remand to provide the
parties with an opportunity to present their objections, unless the record on appeal
is sufficient to enable review. Id. at 1347. If remand is unnecessary because the
record is sufficient to enable meaningful appellate review, we will review the
legality of the sentence under a preserved error standard of review. United States
v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006).
Here, the court did not ask defense counsel if there was “anything else” or
otherwise inquire as to the sentence in any way that would offer an opportunity to
object before concluding the hearing. Britton’s attorney did on his own accord
object to the substantive reasonableness of the original 34-month sentence, but
even assuming arguendo that this is sufficient to satisfy Jones, the court did not
properly elicit objections to the 36-month sentence. By failing to elicit fully-
articulated objections, the court did not comply with the procedure in Jones. Thus,
we review Britton’s remaining claim for preserved, rather than plain, error.
II.
We review de novo the legality of a sentence imposed pursuant to
revocation of supervised release. United States v. Pla, 345 F.3d 1312, 1313 (11th
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Cir. 2003). We conclude, however, that the record on appeal is not sufficient to
enable meaningful appellate review. See Campbell, 473 F.3d at 1348-49.
For sentences imposed upon revocation of supervised release, the
sentencing range is based on (1) the classification of the revocation-producing
conduct into one of three grades, and (2) the criminal history category applicable
at the time the defendant originally was sentenced to the term of supervision.
U.S.S.G. §§ 7B1.1, 7B1.4. A district court may revoke a defendant’s supervised
release and “impose a term of imprisonment after considering various factors set
out in 18 U.S.C. § 3553(a).” Campbell, 473 F.3d at 1348. One factor the court
must consider is the sentencing range. Id. “[B]ecause the Guidelines have always
been advisory for sentences imposed upon revocation of supervised release, it is
sufficient that there be some indication that the district court was aware of and
considered the Guidelines, which requires the court to consider the sentencing
range established under the Guidelines.” Id. at 1349 (citations omitted) (quotation
marks omitted).
In Campbell, we held that we could not review the sentence because (1) “the
district court never explicitly mentioned Campbell’s advisory Guidelines range
during the revocation hearing,” and (2) “the district court never mentioned the
criminal classification of the crime for which Campbell’s supervised release was
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revoked.” Id. The fact that defense counsel “briefly mentioned” the guideline
range was insufficient where the court did not itself make any conclusion
regarding the applicable range on the record. Id. at 1349 n.2. We accordingly
vacated Campbell’s sentence and remanded for re-sentencing.
Here, as in Campbell, the court erred when it failed to correctly calculate the
guideline range or even mention the word “Guidelines” during the revocation
hearing. The district court never referenced the guideline range of 24 to 30
months, nor did the court provide any reasons for exceeding the guideline range.
Because it cannot be determined from the record whether the court considered his
advisory sentencing range, we vacate Britton’s sentence and remand for re-
sentencing.
VACATED and REMANDED.
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