United States v. John Mark Polke , 224 F. App'x 945 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 15, 2007
No. 06-13220
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 94-00129-CR-J-25-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MARK POLKE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 15, 2007)
Before ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
John Mark Polke appeals his 21-month sentence for violating the conditions
of his supervised release. See 18 U.S.C. § 3583(g). Polke argues that his sentence
is procedurally and substantively unreasonable. We affirm.
I. BACKGROUND
After serving an 84-month sentence of imprisonment based on a conviction
for being a felon in possession of a firearm, 18 U.S.C. § 922(g), Polke began a
three-year term of supervised release on December 13, 2000. Among the
conditions of Polke’s supervised release were that he not commit a federal, state,
or local crime or illegally possess a controlled substance, firearm, or destructive
device. On August 29, 2003, the district court revoked Polke’s supervised release
and sentenced him to one day of imprisonment and 23 months of supervised
release subject to the same conditions as his previous release.
On May 24, 2005, Polke was arrested after he fled the scene of a stabbing,
and crack cocaine was found in the squad car after his arrest. The government
petitioned to revoke Polke’s supervised release. At the revocation hearing, the
district court found that Polke had violated the conditions of his supervised release
by possessing cocaine and resisting arrest without violence, a Grade B violation.
Polke’s criminal history category was VI, and the advisory Sentencing Guidelines
range for his sentence of imprisonment was 21 to 27 months. U.S.S.G. § 7B1.4(a).
2
The district court revoked Polke’s supervised release and imposed a sentence of
21 months.
II. STANDARDS OF REVIEW
We review de novo the interpretation of sentencing provisions governing
revocation of supervised release. See United States v. Quinones, 136 F.3d 1293,
1294 (11th Cir. 1998). We review for plain error a sentencing argument raised for
the first time on appeal. United States v. Aguillard, 217 F.3d 1319, 1320 (11th
Cir. 2000). We review for reasonableness a sentence imposed for violating a
condition of supervised release. United States v. Sweeting, 437 F.3d 1105, 1106-
07 (11th Cir. 2006).
III. DISCUSSION
Polke argues for the first time on appeal that his sentence is procedurally
unreasonable because the district court failed to calculate and determine the
Guidelines range and consider the statutory sentencing factors, 18 U.S.C.
§ 3553(a). This argument fails. Because the district court found that Polke
possessed a controlled substance, Polke was subject to mandatory revocation and
imprisonment. 18 U.S.C. § 3583(g)(1). When a court decides to revoke
supervised release under 18 U.S.C. § 3583(e), the court must consider the
sentencing factors under section 3553(a), United States v. White, 416 F.3d 1313,
3
1318 (11th Cir. 2005), but “‘when revocation of supervised release is mandatory,
under 18 U.S.C. § 3583(g), the statute does not require consideration of the
§ 3553(a) factors.’” United States v. Brown, 224 F.3d 1237, 1241 (11th Cir. 2000)
(quoting United States v. Giddings, 37 F.3d 1091, 1095 (5th Cir. 1994)). The
district court did not commit plain error when it sentenced Polke.
Polke also argues that his sentence is substantively unreasonable because he
was within two months of completing his term of supervised release, he had
maintained steady employment and a steady residential address, he had not tested
positive for drugs, and he had recently become a father. We disagree. Polke’s
sentence at the low end of his proffered calculation of the advisory Guidelines
range takes into account these mitigating facts but reflects that Polke had
repeatedly violated the terms of his supervised release and had an extensive
history of recidivism. Under our deferential review, see, e.g., United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005), we cannot say that Polke’s sentence is
unreasonable.
IV. CONCLUSION
Polke’s sentence is
AFFIRMED.
4