[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14964 ELEVENTH CIRCUIT
MAY 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 97-00019-CR-CDL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY WIMBERLY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(May 17, 2010)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
Terry Wimberly appeals his 36 month sentence imposed upon the revocation
of his supervised release pursuant to
18 U.S.C. § 3583(e)(3). Wimberly argues that
his sentence: (1) is procedurally unreasonable because the district court failed to
consider all of the
18 U.S.C. § 3553(a) factors, and (2) substantively unreasonable
because it was overly harsh and unnecessarily imposed to run consecutive to a 120
month sentence that he is serving in the Northern District of Illinois. Upon review
of the record and consideration of the parties’ briefs, we affirm.
I. BACKGROUND
On August 26, 1997, Wimberly pleaded guilty to one count of possession
with intent to distribute crack cocaine in violation of
21 U.S.C. § 841(a)(1).1
Wimberly was originally sentenced to 96 months of imprisonment followed by 60
months of supervised release. The final sentence reflected a downward departure
pursuant to the United States Sentencing Guidelines (“U.S.S.G”). U.S.S.G. §
5K1.1. On April 8, 2005, Wimberly began the supervised release portion of his
sentence.
On April 17, 2008, Wimberly’s probation officer filed a “Petition for Action
on Supervised Release,” charging Wimberly with four violations of the conditions
of his supervised release. Doc. 267. Specifically, the petition alleged that
Wimberly: (1) left the judicial district without permission, (2) associated with
1
See 1998 Presentence Investigation Report (“PSI”) at 1–2.
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persons involved in criminal activity, (3) associated with a convicted felon, and (4)
failed to refrain from violating the law. Id. According to the petition, on
January 22, 2008, Wimberly committed a controlled-substance offense in the
Northern District of Illinois. Id. An attorney was appointed to represent
Wimberly, and a magistrate judge held a preliminary revocation hearing. Doc.
280.
Prior to Wimberly’s final revocation hearing, the United States Probation
Office prepared a Revocation Report restating the violations with which Wimberly
was charged. It noted that, in 2006, Wimberly also violated the conditions of his
supervised release by providing false information to a police officer, possessing a
false identification document, and failing to carry a state driver’s license.
Consequently, the court modified the conditions of Wimberly’s supervised release
to include 40 hours of community service. Doc. 250. According to the Revocation
Report, in January 2008, Drug Enforcement Administration officials arrested
Wimberly in Illinois for conspiracy to distribute and possession with intent to
distribute five kilograms or more of cocaine. For this offense, the court in the
Northern District of Illinois sentenced Wimberly to 120 months of imprisonment
followed by 5 years of supervised release.
The Revocation Report set out that, because one of Wimberly’s violations
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involved a controlled-substance offense punishable by a term of imprisonment
exceeding one year, it was classified as a Grade A violation. U.S.S.G. §
7B1.1(a)(1), (b). Because Wimberly’s criminal history category at the time of his
original sentencing was VI, the probation officer calculated his advisory guideline
range to be 33 to 41 months of imprisonment. U.S.S.G. § 7B1.4(a). However, the
statutory maximum term of imprisonment was 36 months because Wimberly’s
original offense was a Class B felony, so Wimberly’s final guideline range was 33
to 36 months of imprisonment, pursuant to U.S.S.G. § 7B1.4(b)(3)(A). See
18 U.S.C. § 3583(e)(3).
On September 1, 2009, the district court held Wimberly’s revocation
hearing. Doc. 294. The district court recounted the charged violations and
confirmed Wimberly’s understanding of them.
Id. at 3–4. Wimberly stated that he
did not contest any of the violations. The district court then concluded that the
four violations occurred and revoked Wimberly’s term of supervised release.
Id.
at 5. Wimberly requested that his revocation prison term run concurrently with his
sentence in Illinois, pursuant to the district court’s discretion under
18 U.S.C. §§
3553(a) and 3584(b).
Id. at 5–6. Wimberly argued that the ten-year sentence
imposed by the Illinois district court was sufficient to fulfill the goals of
18 U.S.C.
§ 3553(a).
Id. at 6.
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The district court announced that it had taken the Sentencing Guidelines
under advisement and determined that the advisory sentencing range was 33 to 36
months of imprisonment.
Id. at 6. The district court noted that, by committing the
violations, Wimberly “showed a complete disregard for [the] conditions [of his
supervised release] and a complete lack of respect for the law.” Doc. 294 at 7.
The district court gave reasons why Wimberly’s revocation sentence should run
consecutive to his Illinois sentence. It explained that Wimberly was being
separately punished for violating the conditions of his supervised release in order
“to reflect the seriousness of the violation of supervised release, to promote respect
for the law, and to provide just punishment for the offense and adequate deterrence
for this conduct.”
Id. at 8. The district court also found that the sentence
adequately addressed the totality of the circumstances and complied with the
sentencing factors under
18 U.S.C. § 3553(a).
Id. When prompted, Wimberly did
not object to the sentence or the manner in which it was imposed.
Id. at 9.
II. STANDARD OF REVIEW
Wimberly objects to the district court’s decision to revoke his supervised
release and impose sentence for the first time on appeal. Therefore, this issue is
reviewed for plain error. See United States v. Gresham,
325 F.3d 1262, 1265 (11th
Cir. 2003). Under the plain error standard, Wimberly “must show that: (1) an error
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occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it
seriously affected the fairness of the judicial proceedings.”
Id. (citation omitted).2
III. DISCUSSION
If a district court “finds by a preponderance of the evidence that the
defendant violated a condition of supervised release,” the district court may revoke
a term of supervised release, after considering the factors set forth in
18 U.S.C. §
3553(a)(1), (a)(2)(B)–(D), and (a)(4)–(7), and impose a sentence of imprisonment
for the violation.
18 U.S.C. § 3583(e)(3). The term imposed cannot exceed the
statutory maximum, which is determined by the grade of the violation.
Id. §
3583(e)(3).
Pursuant to
18 U.S.C. § 3584(a), “if a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively . . . .” When determining whether
sentences are to run consecutively or concurrently, the district court “shall
consider, as to each offense for which a term of imprisonment is being imposed,
the factors set forth in section 3553(a).”
18 U.S.C. § 3584(b). In the context of
revocation of a defendant’s supervised release, the district court retains its
2
Even if Wimberly had objected, he has not shown that his sentence was procedurally
unreasonable. Furthermore, the sentence was substantively reasonable because the district court
considered all of the relevant § 18 U.S.C. 3553(a) factors. Doc. 294 at 8–9.
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discretion to impose a concurrent or a consecutive sentence. United States v.
Quinones
136 F.3d 1293, 1295 (11th Cir. 1998) (per curiam).
After review of the record, we find that both of Wimberly’s arguments have
no merit because there was no error, plain or otherwise in the district court’s
revocation of Wimberly’s supervised release. First, the plain language of
18
U.S.C. § 3583 entitled the district court to revoke Wimberly’s supervised release if
he violated a condition of his release. Additionally, the record reflects that
Wimberly admitted to violating the conditions of his supervised release.
Specifically, Wimberly stated that he did not contest any of the violations. Doc.
294 at 5. Consequently, the district court explained, and Wimberly indicated that
he understood, that his failure to contest the violations constitute an admission that
the violations occurred.
Id.
Second, we reject Wimberly’s contention that the district court committed
plain error by imposing a 36 month sentence to run consecutive to a 120 month
sentence that he is serving in the Northern District of Illinois. Whether the terms
of Wimberly’s sentence should run consecutive or concurrent remains a question
entrusted to the district court’s sound discretion pursuant to
18 U.S.C. § 3584.
IV. CONCLUSION
We find that Wimberly’s admission supported the district court’s finding
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that he violated the conditions of his supervised release by a preponderance of the
evidence. The district court did not err by revoking his supervised release and
imposing a consecutive sentence. Accordingly, we affirm.
AFFIRMED.
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