United States v. Earl Joseph Zeigler , 251 F. App'x 631 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 17, 2007
No. 07-12183 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00122-CR-001-WDO-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARL JOSEPH ZEIGLER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 17, 2007)
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Earl Joseph Zeigler appeals his sentence imposed for violating his probation,
18 U.S.C. § 3565(a). Ziegler contends his sentence of 60 months’ imprisonment is
unreasonable because the district court did not adequately explain the upward
variance to the statutory maximum, when the advisory Guidelines range was 3 to 9
months.
Under 18 U.S.C. § 3565(a), after the district court revokes a defendant’s
probation, the court shall consider the factors in 18 U.S.C. § 3553(a) before
imposing a term of imprisonment. United States v. Silva, 443 F.3d 795, 798 (11th
Cir. 2006). The “factors include the nature and circumstances of the offense, the
history and characteristics of the defendant, the need for the sentence imposed to
afford adequate deterrence to criminal conduct, the kinds of sentences and
sentencing ranges established under the applicable guidelines, and policy
statements issued by the Sentencing Commission.” Id. at 798-99 (citing
§ 3553(a)). “Chapter 7 of the Sentencing Guidelines governs violations of
probation and contains policy statements, one of which provides recommended
ranges of imprisonment applicable upon revocation.” Id. at 799 (citing U.S.S.G.
§ 7B1.4, p.s.).
We have noted that when imposing a sentence falling far outside of the
Guidelines range, an extraordinary variance must be supported by extraordinary
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circumstances. United States v. McVay, 447 F.3d 1348, 1357 (11th Cir. 2006).
“The sentencing judge should set forth enough to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned basis for exercising his
own legal decision making authority.” Rita v. United States, 127 S. Ct. 2456, 2468
(2007).
The Government concedes plain error because the district court did not set
forth its reasons for the sentence and the record is inadequate to conduct
meaningful appellate review. See United States v. Aguillard, 217 F.3d 1319, 1320
(11th Cir. 2000) (reviewing a sentencing argument raised for the first time on
appeal for plain error). We agree. Thus, we vacate and remand for resentencing.
VACATED AND REMANDED.
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