United States v. Gregory A. Baxter , 239 F. App'x 559 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 27, 2007
No. 07-10413 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00232-CR-JTC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY A. BAXTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 27, 2007)
Before BLACK, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Gregory Alan Baxter appeals his 20-month sentence imposed following the
revocation of his supervised release pursuant to 18 U.S.C. § 3583(e)(3). For the
reasons that follow, we affirm.
I. BACKGROUND
In 2001, Baxter pleaded guilty to one count of bank robbery, in violation of
18 U.S.C. § 2113(a). The U.S. Probation Office prepared a presentence
investigation report (“PSI”), which stated that Baxter’s offense of conviction was a
Class C felony with a statutory maximum penalty of 20 years’ imprisonment.
Because of his lengthy criminal history, the PSI assigned Baxter a criminal history
category of VI. Thereafter, the district court sentenced Baxter to 70 months’
imprisonment, to be followed by 36 months of supervised release.
On April 14, 2006, Baxter was released from prison and began his term of
supervised release. On June 2, 2006, the district court issued an order to show
cause as to why Baxter’s supervised release should not be revoked, charging that
Baxter had violated the conditions of his release by failing to report for drug
testing and by being arrested for simple battery. On July 6, 2006, the district court
issued an amended show-cause order, charging Baxter with making untruthful
statements to his probation officer and knowingly associating with a convicted
felon. The district court found that Baxter had violated his supervised release and
sentenced him to 4 months’ imprisonment, to be followed by 32 months of
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supervised release, with the first 4 months to be served in home confinement.
Baxter was released from prison in October 2006, and on December 22,
2006, the district court issued a summons and order to show cause as to why
Baxter’s supervised release should not be revoked. The show-cause order alleged
that Baxter had violated the conditions of his supervised release by failing to report
to his probation officer within 72 hours of his release from prison, making
untruthful statements to his probation officer, leaving the Northern District of
Georgia without permission, failing to submit to drug testing, and testing positive
for cocaine.
During the revocation hearing on January 8, 2007, Baxter conceded the
violations, but stated that he had recently found secure employment, that he could
comply with the requirements of supervised release, and that he would be willing
to live in a halfway house to get his life organized. Baxter’s counsel noted that the
probation officer had recommended that the terms of Baxter’s supervised release
include placement in a halfway house for 4 months with electronic-bracelet
monitoring. Baxter’s counsel further noted that the 4 months of home confinement
the court had ordered in October 2006 had not been executed because Baxter did
not have a home. In response, the Government objected to the probation officer’s
recommendation regarding the halfway house and electronic monitoring and asked
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the court to sentence Baxter to 12 months’ imprisonment.
Upon finding that Baxter violated the terms of his supervised release, the
district court revoked the remainder of his release and sentenced him to 20 months’
imprisonment. Regarding the sentence, the court stated:
That is the maximum sentence I am able to sentence you to, as I
understand it, under the present sentencing guidelines. I don’t think
that the guideline range is adequate to address your situation.
The history of your supervised release shows that you will not
comply with the conditions of your supervised release, you’ve
repeatedly failed to comply, you have continued your drug use, you
have failed to submit for drug testing on a number of occasions which
indicates there may be several other occasions in which you’ve been
using drugs. You have a significant criminal history, several of the
offenses involve violence. Most of these offenses were committed
while you were on some sort of probationary sentence similar to
supervised release.
The last time you were revoked was the result of a new criminal
offense which was an assault on a former girlfriend who the court had
instructed you not to I believe have contact with. So I think the only
way to go, one, resolve this and, two, to protect the community, is to
sentence you to the 20 months with no supervised release to follow.
The court then asked Baxter’s counsel if he had “any objection to the
sentence or the manner in which it was imposed?” Baxter’s counsel responded that
he did and stated that “I respectfully suggest that the sentence that you imposed is
not reasonable under [18 U.S.C. § 3553(a)].” The court replied “I understand” and
informed Baxter of his right to appeal his sentence. The court then asked the
Government if it objected to the sentence, and the Government responded that it
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did not. Baxter now appeals.
II. DISCUSSION
On appeal, Baxter argues that the district court failed to elicit objections
after imposing sentence as required by 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), and failed to sufficiently indicate on the record that it had
considered the Sentencing Guidelines before imposing the sentence. We address
each argument in turn.
A. Compliance with Jones
Pursuant to Jones, “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 (11th Cir. 2007) (citing Jones, 899 F.2d at 1102).
The objection-elicitation requirement serves two purposes: “(1) a well-made
objection may permit the court to cure an error, perhaps avoiding the need for
appeal; and (2) an objection may narrow the issues on appeal.” United States v.
Holloway, 971 F.2d 675, 681 (11th Cir. 1992). “Where the district court has
offered the opportunity to object and a party is silent or fails to state the grounds
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for objection, objections to the sentence will be waived for the purpose of appeal.”
Id. We “will not entertain an appeal based upon such objections unless refusal to
do so would result in manifest injustice.” Id.When a district court fails to elicit objections after imposing sentence, “we
normally vacate the sentence and remand to the district court to give the parties an
opportunity to present their objections.” Campbell, 473 F.3d at 1347. “A remand
is unnecessary, however, when the record on appeal is sufficient to enable review.”
Id. And this court has recently clarified that the Jones rule applies to supervised-
release revocation proceedings. Id.In Jones, this court held that the objection-elicitation requirement could have
been satisfied in that case “if the [district] court, after pronouncing sentence, had
asked counsel whether there were any objections—to the sentence or to the manner
in which the court pronounced it—other than those previously stated for the
record.” Jones, 899 F.2d at 1102 (emphasis added). In United States v. Neely, 979
F.2d 1522 (11th Cir. 1992), we held that “the district court followed our
instructions in United States v. Jones” by asking “the parties whether they had ‘any
objection to the sentence or the manner in which the sentence was pronounced.’”
Neely, 979 F.2d at 1523 (citation omitted) (emphasis added). In United States v.
Wilson, we held that the Jones rule was satisfied where the district court stated “are
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there any exceptions to the findings made in the sentencing hearing?” 983 F.2d
221, 225-26 (11th Cir. 1993). In United States v. Maurice, we held that “[t]he
district court complied with Jones by asking for objections after imposition of the
sentence.” 69 F.3d 1553, 1557 (11th Cir. 1995). And in United States v.
Ramsdale, we held that Jones was satisfied where the district court asked “anything
else . . . necessary in this resentencing,” and defense counsel stated an objection in
response, thereby demonstrating that he understood the court to be eliciting
objections. 179 F.3d 1320, 1324 (11th Cir. 1999).
Baxter argues that the district court failed to comply with the objection-
elicitation requirement of Jones because the district court failed to ask if Baxter
had any objections to the court’s “ultimate findings of fact and conclusions of
law.” We disagree.
After imposing the sentence, the district court asked Baxter’s counsel if he
had “any objection to the sentence or the manner in which it was imposed?”
Baxter’s counsel replied “I do. I respectfully suggest that the sentence that you
imposed is not reasonable under [18 U.S.C. § 3553(a)].” Thus, not only did the
district court specifically asked defense counsel if he had any objection to the
sentence, the court also asked if defense counsel had any objection to “the manner
in which [the sentence] was imposed,” which, necessarily includes any factual or
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legal bases upon which the district court relied in imposing the sentence. Nothing
in the record indicates that the district court’s request for objections was limited
solely to objections based on the reasonableness of the sentence.
Furthermore, nothing in our case-law construing Jones requires that the
district court specifically ask a party whether he objects to the court’s “ultimate
findings of fact and conclusions of law.” See Wilson, 983 F.2d at 225-26 (holding
that Jones was satisfied where the district court asked “are there any exceptions to
the findings made in the sentencing hearing?” (emphasis added)); Maurice, 69 F.3d
at 1557 (“The district court complied with Jones by asking for objections after
imposition of the sentence.” (emphasis added)); Ramsdale, 179 F.3d at 1324
(holding that the district court’s inquiry of “anything else . . . necessary in this
resentencing” satisfied Jones where defense counsel stated an objection in
response). Again, as long as “the district court has offered the opportunity to
object,” the Jones rule is satisfied. Jones, 899 F.2d at 1103 (emphasis added).
Indeed, as stated above, in Neely we held that Jones was satisfied where the district
court “asked the parties whether they had ‘any objection to the sentence or the
manner in which the sentence was pronounced[,]’” Neely, 979 F.2d at 1523(emphasis added), which is nearly identical to the question the district court posed
during Baxter’s revocation hearing. Because the district court provided Baxter
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with an opportunity to lodge any objection to the sentence and the bases upon
which the district court relied in imposing that sentence, we conclude that the Jones
rule was satisfied.
B. On-the-Record Consideration of the Sentencing Guidelines
Baxter next argues that the “district court failed to state on the record its
conclusions regarding its calculations under the sentencing guidelines,” so that his
sentence is “invalid.”
We review the legality of a sentence de novo. United States v. Pla, 345 F.3d
1312, 1313 (11th Cir. 2003). But where, as here, the defendant failed to raise an
issue in the district court, we review only for plain error. United States v. Peters,
403 F.3d 1263, 1270 (11th Cir. 2005). To satisfy the plain-error standard, we must
find that (1) an error has occurred, (2) the error was plain, and (3) the error affected
the defendant’s substantial rights. United States v. Zinn, 321 F.3d 1084, 1087
(11th Cir. 2003). If all three conditions are met, this court may, in its discretion,
notice and correct the forfeited error, but only if “the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quotation omitted).
“Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of
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supervised release, 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).”
United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). Factors to
consider include the nature and circumstances of the offense, the history and
characteristics of the defendant, the need to afford adequate deterrence to criminal
conduct, and the need to protect the public from further crimes of the defendant.
18 U.S.C. § 3553(a). “One of the factors a court must consider . . . is . . . the
sentencing range established [by] . . . the applicable guidelines or policy
statements issued by the Sentencing Commission.” United States v. White, 416
F.3d 1313, 1318 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)(4)) (emphasis
added). “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
the defendant originally was sentenced to the term of supervision.” Campbell, 473
F.3d at 1348-49 (citing U.S.S.G. §§ 7B1.1, 7B1.4). But because “the Guidelines
have always been advisory for sentences imposed upon revocation of supervised
release,” it is enough “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 and
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internal quotation marks omitted); United States v. Cook, 291 F.3d 1297, 1302
(11th Cir. 2002) (“[Section] 3553 requires a court only to consider the Chapter
Seven policy statements in determining a defendant’s sentence.”).
Chapter 7 of the Sentencing Guidelines governs sentences imposed upon the
revocation of supervised release. If the defendant commits a Grade C violation of
the terms of his supervised release (that is, a federal, state, or local offense
punishable by one year of imprisonment or less, U.S.S.G. § 7B1.1(a)(3)), the
defendant had a criminal history category of VI at the time of his original
conviction, and the district court revokes the defendant’s release as a result, the
Guidelines range is 8 to 14 months’ imprisonment. U.S.S.G. § 7B1.4(a). Where
the defendant’s original conviction was a Class C felony, the total sentence
imposed upon revocation cannot exceed 2 years’ imprisonment. 18 U.S.C.
§ 3583(e)(3). And this court has held that the aggregation of all periods of post-
revocation imprisonment cannot exceed this statutory maximum. United States v.
Williams, 425 F.3d 987, 989 (11th Cir. 2005).
On appeal, Baxter argues that the district court failed to state the Guidelines
imprisonment range, and, therefore, this court cannot determine whether the
district court accurately calculated the Guidelines range or whether the district
court complied with its duty to consult and consider the Guidelines. To that end,
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he contends that “the court compounded the problem by offering ambiguous
comments regarding the guidelines” and making “contradictory assertions,”
requiring the parties “to guess whether or not the court followed its obligation to
correctly calculate the sentencing guidelines range.” Although he concedes that
both his attorney and the Government stated that the Guidelines range was 8 to 14
months’ imprisonment during the revocation hearing, he asserts that the district
court was required to “explicitly” state its Guidelines calculation. We are
unpersuaded.
Because the district court revoked Baxter’s supervised release as a result of a
Grade C violation, and Baxter had a criminal history category of VI at the time of
his original bank robbery conviction, the resulting Guidelines range was 8 to 14
months’ imprisonment. Because Baxter’s bank robbery conviction was a Class C
felony, the district court could not impose aggregate periods of post-revocation
imprisonment exceeding 2 years (24 months). See 18 U.S.C. § 3583(e)(3);
Williams, 425 F.3d at 989. Following the district court’s first revocation of
Baxter’s supervised release in July 2006, the court imposed a sentence of 4
months’ imprisonment. As a result, following the instant revocation, the district
court could only impose a sentence of 20 months’ imprisonment so as not to
exceed the 2-year (24-month) statutory maximum provided under 18 U.S.C.
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§ 3583(e)(3). In this light, the district court’s statement that 20 months’
imprisonment was “the maximum sentence” it could impose “under the present
sentencing guidelines” was in reference to the statutory maximum set forth in
§ 3583(e).
And although the district court never “explicitly” stated that Baxter’s
Guidelines imprisonment range was 8 to 14 months, the court’s statement that “I
don’t think that the guideline range is adequate to address [Baxter’s] situation” and
its imposition of a sentence that exceeded that range demonstrate that, as required
by Campbell, the court “consider[ed] the sentencing range established under the
Guidelines[,]” Campbell, 473 F.3d at 1349 (internal quotation marks omitted).
Thus, there is “some indication that the district court was aware of and considered
the Guidelines” in imposing Baxter’s sentence, which, under Campbell, is all that
is required. See id.Furthermore, even if we were to conclude that the district court’s statements
were insufficient to demonstrate that it “considered” the Guidelines range, we
nonetheless hold that such “error” was harmless, as Baxter has not shown that the
“error” affected his substantial rights. In sentencing Baxter to the statutory
maximum of 20 months’ imprisonment, the district court considered Baxter’s
history and characteristics and the need to protect the public (per § 3553(a)),
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determined that the Guidelines range was inadequate, and concluded that the
maximum sentence (pursuant to § 3583(e)) of 20 months’ imprisonment was
warranted. Specifically, the court considered (1) Baxter’s repeated failures to
comply with the conditions of his previous terms of supervised release; (2) his
continued drug use; (3) his failure to report for drug testing; (4) his significant
criminal history; (5) his commission of numerous violent offenses during
probationary periods similar to supervised release; and (6) the resulting need to
protect the community from Baxter’s conduct. Nothing in the record evinces that
either the district court’s consideration of these factors or the sentence imposed in
light of these factors was “invalid” or “unreasonable.” See Sweeting, 437 F.3d at
1107. And it is clear from the record that regardless of the sentencing range
suggested under the Guidelines, the district court still would have sentenced Baxter
to the statutory maximum of 20 months’ imprisonment. As such, Baxter has failed
to demonstrate that the district court plainly erred in imposing the sentence.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
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