United States v. Oletha Clemons , 228 F. App'x 888 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 19, 2007
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THOMAS K. KAHN
No. 06-13509
CLERK
Non-Argument Calendar
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D.C. Docket No. 00-00124-CR-CB-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLETHA CLEMONS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(April 19, 2007)
Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Defendant-Appellant Oletha Clemons appeals her 24-month sentence
imposed upon the revocation of her supervised release. No reversible error has
been shown; we affirm.
In October 2000, Clemons pleaded guilty to conspiracy to possess stolen
mail and to commit bank fraud, in violation of 18 U.S.C. § 371. Clemons was
sentenced to 24 months imprisonment to be followed by three years’ supervised
release. Clemons first violated the terms of her supervised release in October
2004, when she was arrested and charged with second degree theft of property.
After a mental health assessment, the district court allowed Clemons to continue
on supervised release but ordered that she attend individual counseling sessions
and a four-week “Crime of Theft” course.
Again in May 2005 Clemons violated the terms of her supervised release,
when she was arrested and charged with three counts of theft of property. At the
conclusion of the revocation hearing, the district court modified Clemons’s
conditions of supervised release: she was placed on six months’ home
confinement with electronic monitoring so that she could continue her
employment and care for her children. The district court advised Clemons
expressly that two years’ imprisonment would be imposed if she again violated the
terms of her supervised release.
On 12 April 2006, the probation office filed for revocation of Clemons’s
supervised release after Clemons was arrested and charged with credit card fraud,
possession of stolen property, and failure to accompany a police officer. At a
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hearing held on 6 July 2006, Clemons executed a waiver admitting the facts of the
supervised release violation. The district court sentenced Clemons to the
maximum imprisonment -- 24 months -- under an advisory guideline range of 21
to 24 months’ imprisonment. Clemons objected that she should be credited for the
time that she had spent in home confinement.
Clemons raises two issues on appeal: (i) whether the sentence imposed was
reasonable in the light of the district court’s failure to mention the 18 U.S.C. §
3553(a) factors; and (ii) whether the sentence imposed violated 18 U.S.C. §
3583(e)(3) because it exceeded the maximum of 24 months’ imprisonment when
combined with the home confinement already served.
About the first issue, the record indicates that the district court considered
the section 3553 (a) factors albeit without referencing those factors expressly. The
district court’s sentence was predicated on Clemons’s personal history and
characteristics, her risk to the public, the advisory guideline range, and her
repeated violations of supervised release and the consequent need for deterrence.
These considerations evidence the district court’s compliance with section
3553(a). See 18 U.S.C. § 3553(a)(1), (2)(B)-(C), 4(B). No requirement exists that
the district court “state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott,
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426 F.3d 1324, 1329 (11th Cir. 2005). Clemons’s claim of unreasonableness based
on a failure to consider the section 3553(a) factors is without merit.*
About the second issue, we doubt that home confinement is the equivalent of
imprisonment, which Clemons must show to establish that the statutory maximum
imprisonment under section 3583(e)(3) was exceeded. Precedent in the context of
18 U.S.C. § 3585(b) -- which addresses credit for presentence confinement --
rejects characterizing pretrial home confinement as “official detention” for
purposes of awarding sentencing credit under section 3585. See Rodriguez v.
Lamar, 60 F.3d 745, 748 (11th Cir. 1995). And we have said that “release
stipulations or imposed conditions that do not subject a person to full physical
incarceration do not qualify as official detention.” Dawson v. Scott, 50 F.3d 884,
888 (11th Cir. 1995).
Under section 3583(e), the district court is authorized to impose home
confinement “as an alternative to incarceration.” 18 U.S.C. § 3583(e)(4). The
district court exercised its section 3583(e)(4) authority when it modified Clemons’s
supervised release instead of revoking it in 2005. When Clemons again violated
*
The government argues that plain error review applies to Clemons’s section 3553(a) claim
because she made no objection at sentencing based on the district court’s failure to consider the
3553(a) factors or on the reasonableness of the sentence imposed. Because Clemons’s claim fails
even under preserved error review, we need not now resolve the applicable standard of review.
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the terms of her supervised release in 2006, the court had authority to revoke
Clemons’s modified supervised release and to impose a term of imprisonment. 18
U.S.C. § 3583(e)(3). A sentence of imprisonment may be imposed upon
revocation of supervised release even where the statutory maximum term of
imprisonment for an offense already has been served; and when supervised release
is revoked, the defendant may be required to “serve in prison” the term of
supervised release “without credit for time previously served on postrelease
supervision.” Id.; see United States v. Proctor, 127 F.3d 1311, 1313 (11th Cir.
1997). In the light of section 3583(e)(3)’s clear direction that no credit be awarded
for postrelease supervision, we see no merit in Clemons’s claim that the statutory
maximum under that section was exceeded.
AFFIRMED.
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