United States v. Curtis James Fay ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 03, 2009
No. 09-12279 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00811-CR-01-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS JAMES FAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 3, 2009)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Curtis James Fay appeals his sentence of 12 months imprisonment and 36
months supervised release, which was imposed after the revocation of his
supervised release. Fay contends that the district court failed to comply with
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), when it failed to elicit
objections from the parties regarding the court’s findings of fact, conclusions of
law, and the manner in which the sentence was imposed. He also contends that the
record is insufficient for meaningful appellate review of the procedural and
substantive reasonableness of his sentence.
District courts must “elicit fully articulated objections, following imposition
of sentence, to the court’s ultimate findings of fact and conclusions of law,” as well
as to “the manner in which the sentence is pronounced.” Jones, 899 F.2d at 1102.
The objection-elicitation requirement of Jones applies to revocation of supervised
release proceedings. United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir.
2007). A district court’s question about whether there is “anything else” or
“anything further” is not enough to meet that requirement. Id. “Where the district
court has not elicited fully articulated objections following the imposition of
sentence, [we] will vacate the sentence and remand for further sentencing in order
to give the parties an opportunity to raise and explain their objections.” Jones, 899
F.2d at 1103. Remand is unnecessary, however, if the record on appeal is
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sufficient for meaningful appellate review. Campbell, 473 F.3d at 1347.
At the conclusion of Fay’s revocation hearing, the district court imposed the
sentence and asked, “anything else?” In response, neither side raised a “fully
articulated objection.” Therefore, the district court failed to comply with the
procedure required by Jones. See Campbell, 473 F.3d at 1348. Furthermore, the
record is insufficient to allow for meaningful review of the reasonableness of Fay’s
sentence.
A sentence imposed upon the revocation of supervised release is reviewed
for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.
2006). An abuse of discretion standard applies to our reasonableness review. Gall
v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). “[W]e must first
ensure that the district court committed no significant procedural error.” Id. at 51,
128 S. Ct. at 597. To do that, we determine whether the district court (1) properly
calculated the guideline range; (2) treated the guidelines as advisory;
(3) considered the 18 U.S.C. § 3553(a) factors; (4) did not select a sentence based
on clearly erroneous facts; and (5) adequately explained the chosen sentence,
including an explanation for any variance from the guideline range. Id., 128 S. Ct.
at 597; Campbell, 473 F.3d at 1349 (holding that in a revocation proceeding we
must “first determine whether the district court correctly interpreted and applied
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the appropriate advisory Guidelines range.”) (quotation marks omitted).
In a revocation proceeding when the district court finds “by a preponderance
of the evidence that a defendant has violated a condition of supervised release, [a
district court may] revoke the term of supervised release and impose a term of
imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”
Sweeting, 437 F.3d at 1107; see 18 U.S.C. § 3583(e). One of the factors that the
court must consider is the sentencing range established by the guidelines or policy
statements issued by the Sentencing Commission. Campbell, 473 F.3d at 1348; see
18 U.S.C. §§ 3583(e), 3553(a)(4). For sentences imposed upon revocation of
supervised release, the recommended sentencing range is based on the
classification of the conduct that resulted in the revocation and the criminal history
category applicable at the time of the defendant’s original sentencing. U.S.S.G.
§§ 7B1.1, 7B1.4.
In Campbell we held that the record was insufficient for meaningful
appellate review because during the revocation hearing the district court never
mentioned the guideline range, and it did not mention the criminal classification of
the violation that was the basis for the revocation. Campbell, 473 F.3d at 1349.
Even though defense counsel and the government mentioned the guideline range
during the revocation hearing, we concluded that the record still was insufficient
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because “the district court itself never made any on-the-record conclusion
regarding the Guidelines or the applicable sentencing range.” Id. at 1349 n.2
(emphasis in original). We declined to consider the reasonableness of the ultimate
sentence because we must be able to determine whether a sentence is procedurally
reasonable before we address substantive reasonableness. Id. at 1349.
Here, the district court itself never identified the guideline range or even
mentioned the word “guideline.” Furthermore, the district court never mentioned
the criminal classification for the violations used to revoke Fay’s supervised
release or his criminal history category. Thus, as in Campbell, the record is
insufficient to determine whether the district court correctly calculated the
sentencing range or considered the sentencing range and policy statements.
Because we are unable to determine whether Fay’s sentence is procedurally
reasonable, we cannot review the substantive reasonableness of Fay’s ultimate
sentence. See Campbell, 473 F.3d at 1349. Accordingly, we vacate Fay’s sentence
and remand to the district court for resentencing in accordance with Jones and
Campbell.
VACATED AND REMANDED.
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