United States v. Gerald Lackey , 155 F. App'x 482 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 21, 2005
No. 05-12995 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00549-CR-1-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD LACKEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 21, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Gerald Lackey appeals the district court’s imposition of a two-year sentence
after the court revoked Lackey’s supervised release, 18 U.S.C. § 3583(e)(3). For
the first time on appeal, Lackey argues that the sentence was unreasonable because
the district court did not explicitly reference every factor listed in 18 U.S.C.
§ 3553(a) before imposing sentence. After careful review, we affirm.
Because Lackey raises his claim of error for the first time on appeal, we
review it for only plain error.1 See United States v. Aguillard, 217 F.3d 1319, 1320
(11th Cir. 2000). Under the plain error test, before we can correct an error not
raised in the district court, there must be (1) error, (2) that is plain, and (3) that
affects substantial rights. United States v. Heath, 419 F.3d 1312, 1314 (11th Cir.
2005). If the first three conditions are met, we may then exercise our discretion to
notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.A district court, after considering the factors set forth in 18 U.S.C.
§ 3553(a), may revoke supervised release and resentence a defendant. 18 U.S.C.
§ 3583(e)(3); United States v. White, 416 F.3d 1313, 1318 (11th Cir. 2005). These
factors include: (1) the nature and circumstances of the offense and defendant’s
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At the revocation of supervised release hearing, while Lackey’s attorney objected that
the sentence was unreasonable under United States v. Booker, 543 U.S. __, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005), there was no objection based on § 3553(a).
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history and character; (2) the need for the sentence imposed to reflect the
seriousness of the offense, promote respect for the law, afford adequate deterrence
to criminal conduct, protect the public from further of defendant’s crimes; and
(3) the kinds of sentence and range established by the applicable guidelines or
policy statements issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(1),
(2)(A)-(C), (4)(B).
After Lackey filed the initial brief, and the day before the government filed
the response brief, we held that “nothing in Booker or elsewhere requires the
district court to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott,
--- F.3d ---, 2005 WL 2351020 (11th Cir. Sept. 27, 2005). Moreover, we have
upheld a sentencing determination where express consideration of the § 3553(a)
factors could not change the result, and where the district court had already
explicitly considered deterrence and punishment -- two factors listed in § 3553(a).
United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005).
Here, we conclude that the district court did not plainly err in imposing a
two-year sentence where the district court explicitly mentioned deterrence, the
need to protect society, the maximum sentence suggested by the guidelines and
accompanying policy statement, and stated, “for all the reasons set in the statute. . .
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two years is appropriate here.” Pursuant to Robles and our intervening decision in
Scott, the district court was not required to enumerate and consider every factor in
§ 3553(a). Accordingly, we affirm Lackey’s conviction and sentence.2
AFFIRMED.
2
We also are not persuaded by Lackey’s due-process argument. The order to show cause
issued to Lackey prior to the revocation of his supervised release provided him with written notice
of the violations; informed him of the evidence he might face at a hearing; and enumerated that he
had an opportunity to be heard, present evidence and confront witnesses during the revocation of
supervised release hearing. Although the district court did not issue a written opinion, it did explain
itself in a transcribed hearing. Cf. Morrissey v. Brewer , 408 U.S. 471, 489, 92 S. Ct. 2593, 2604,
33 L. Ed. 2d 484 (1972) (enumerating that due process requirements for a revocation hearing are:
(1) written notice of the claimed violations; (2) disclosure of the evidence to the defendant; (3)
opportunity to be heard and to present evidence; (4) the right, absent good cause, to confront and
cross-examine adverse witnesses; (5) a neutral and detached decisionmaker; and (6) a written
statement by the decisionmaker, indicating the evidence relied on and the reasoning behind the
revocation decision); United States v. Copeland, 20 F.3d 412, 415 (11th Cir. 1994) ( holding that
a district court’s recorded or transcribed oral findings which “create a record sufficiently complete
to advise the parties and the reviewing court of the reasons for the revocation of supervised release
and the evidence the decision maker relied upon” can satisfy the Morrissey requirements).
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