United States v. Lee , 477 F. App'x 539 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 16, 2010
No. 10-10057 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:05-cr-00180-SDM-MSS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY MYEA LEE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 16, 2010)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Jerry Myea Lee appeals from his 22-month sentence imposed for the revocation
of his original term of supervised release. On appeal, Lee argues that: (1) the
evidence failed to establish by a preponderance of the evidence that Lee violated the
terms of his supervised release; and (2) his sentence is both procedurally and
substantively unreasonable. After careful review, we affirm.
We generally review a district court’s revocation of probation for abuse of
discretion. United States v. Mitsven, 452 F.3d 1264, 1266 (11th Cir. 2006). In
reviewing a revocation proceeding, “[a] district court’s findings of fact are binding
on [us] unless clearly erroneous.” United States v. Almand, 992 F.2d 316, 318 (11th
Cir. 1993) (quotation omitted). We review sentences imposed upon revocation of
supervised release for reasonableness. United States v. Sweeting, 437 F.3d 1105,
1106-07 (11th Cir. 2006).
First, we disagree with Lee’s claim that sufficient evidence failed to support
the district court’s finding that Lee violated the conditions of his supervised release.
In reviewing the evidence presented at revocation proceedings, we have held that, “all
that is required is that the evidence reasonably satisfy the judge that the conduct of
the probationer has not been as good as required by the conditions of probation;
evidence that would establish guilt beyond a reasonable doubt is not required.”
United States v. O’Quinn, 689 F.2d 1359, 1361 (11th Cir. 1982) (quotation omitted).
Although O’Quinn is a probation revocation case, probation and supervised release
are conceptually the same, and we treat revocations the same whether they involve
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probation or supervised release. See United States v. Frazier, 26 F.3d 110, 113 (11th
Cir. 1994).
Credibility determinations are within the province of the fact finder “because
the fact finder personally observes the testimony and is thus in a better position than
a reviewing court to assess the credibility of witnesses.” United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). If testimony presented by
opposing witnesses at the hearing are in “direct conflict,” the district court’s decision
to lend credence to one party’s version should be “conclusive” and warrants reversal
only if the court credits “exceedingly improbable” or even “unbelievable” testimony.
Id. (quotations and emphasis omitted). We have held that a court may not adopt a
per se rule against a defendant in a case involving conflicting testimony. Gallego v.
United States, 174 F.3d 1196, 1198-99 (11th Cir. 1999). Instead, a court must weigh
the credibility of the parties’ testimony. Id. at 1198.
Here, the district court determined that Lee violated the terms of his supervised
release by committing aggravated battery with a deadly weapon, being a felon in
possession of a firearm, and falsely imprisoning his girlfriend, Lucille Gamble. In
Florida, a person commits an aggravated battery when, in committing a battery, that
person intentionally or knowingly causes great bodily harm, permanent disability, or
permanent disfigurement, or uses a deadly weapon. F.S.A. § 784.045(1)(a). Florida
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law makes it “unlawful for any person to own or to have in his or her care, custody,
possession, or control any firearm . . . if that person has been convicted of or found
to have committed a crime against the United States which is designated as a felony.”
F.S.A. § 790.23(1)(c). A person falsely imprisons another when “forcibly, by threat,
or secretly confining, abducting, imprisoning, or restraining another person without
lawful authority and against her or his will.” F.S.A. § 787.02(1)(a).
The record does not indicate that the court improperly relied on its
understanding of domestic violence when it discredited Gamble’s testimony. The
court explained that its credibility determination was based on the consistency of the
government witnesses’ testimony and the conflicting nature of Gamble’s testimony.
The court also reviewed the photographic evidence and decided that it accorded with
the testimonies of the government witnesses. Under the circumstances, Lee has not
shown that the district court clearly erred when it made an adverse credibility
determination against Gamble, and therefore, it did not abuse its discretion when it
revoked Lee’s supervised release.
We are also unpersuaded by Lee’s claim that his sentence is unreasonable.
Pursuant to 18 U.S.C. § 3583(e), upon finding that a defendant violated a condition
of supervised release, the district court may revoke the term of supervised release and
impose a term of imprisonment after considering certain specified factors in 18
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U.S.C. § 3553(a). The district court must impose both a procedurally and
substantively reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1323
(11th Cir. 2008), cert. denied, 129 S.Ct. 2848 (2009).
A sentence is procedurally unreasonable if “the district court improperly
calculates the Guidelines range, treats the Guidelines as mandatory rather than
advisory, fails to consider the appropriate statutory factors, selects a sentence based
on clearly erroneous facts, or fails to adequately explain the chosen sentence.” Id.“A sentence that is based entirely upon an impermissible factor is unreasonable
because such a sentence does not achieve the purposes of § 3553(a).” United States
v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir.2008) (internal quotation
omitted). We have held that “[o]ne 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. Campbell, 473 F.3d 1345,
1348 (11th Cir. 2007).
We review substantive reasonableness for abuse of discretion and examine the
totality of the circumstances, including whether the statutory factors in 18 U.S.C. §
3553(a) support the sentence. Gonzalez, 550 F.3d at 1324. The district court does
not need to discuss or state each § 3553(a) factor explicitly. Id. “An
acknowledgment the district court has considered the defendant’s arguments and the
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§ 3553(a) factors will suffice.” Id. We defer to the district court’s judgment
regarding the weight given to the § 3553(a) factors “unless the district court has made
‘a clear error of judgment’ and has imposed ‘a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.’” Id.
Pursuant to § 3553(a) and § 3583(e), the sentencing court shall impose a
sentence “sufficient, but not greater than necessary, to comply with the purposes set
forth in paragraph (2) of this subsection,” including to protect the public from future
crimes of the defendant, and provide the defendant with needed educational or
vocational training or medical care. See 18 U.S.C. § 3553(a)(2)(C)-(D). The
sentencing court must also consider the following factors in determining a particular
sentence: the nature and circumstances of the offense and the history and
characteristics of the defendant, the applicable guideline range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwanted sentencing
disparities, and the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1),
(4)-(7).
Lee’s argument that the district court relied on clearly erroneous facts is
misplaced. As discussed above, the court credited the testimonies of government
witnesses over Gamble’s, and Lee has not shown that the court’s credibility
determination constituted clear error. Lee’s argument that the court unjustifiably
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relied on his criminal history is also misplaced. The court was entitled to consider
Lee’s criminal history, and he has not shown that the court considered his history to
the exclusion of other statutory factors. Therefore, Lee’s sentence was procedurally
reasonable.
Lee’s sentence is also substantively reasonable. The court sentenced Lee after
hearing the parties’ arguments and considering the Guidelines range, the § 3553(a)
factors, and the Sentencing Commission’s policy statements. The court specifically
justified its sentence, stating that it believed Lee had attacked his girlfriend. The
court also referenced Lee’s criminal history, noting his prior battery and drug
convictions. Accordingly, the court did not abuse its discretion when it sentenced
Lee to 22-months’ imprisonment.
AFFIRMED.
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