United States v. Robert Eric Williams , 212 F. App'x 902 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 28, 2006
No. 06-11762 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00139-CR-3-SLB-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT ERIC WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 28, 2006)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Robert Eric Williams appeals the revocation of his supervised release,
pursuant to 18 U.S.C. § 3583. At the revocation hearing, Williams conceded two
violations of the conditions of his release, namely testing positive for cocaine and
failing to attend two drug counseling sessions. On appeal, Williams argues that
these violations, which occurred months earlier, did not warrant a revocation of his
supervised release. Williams contends that the revocation was the result of an
overblown traffic incident and the district court’s improper emphasis on his
criminal history and original sentencing. We find that the district court was
entitled to revoke his release on the basis of these conceded violations and to
consider his criminal history in deciding the length of the sentence and
accordingly, we affirm.
Discussion
A district court’s revocation of supervised release is generally reviewed
under an abuse of discretion standard. United States v. Frazier, 26 F.3d 110, 112
(11th Cir. 1994). However, we review for plain error those issues in which timely
objections were not made in the district court. United States v. Olano, 507 U.S.
725, 731, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993). At the hearing,
Williams contested the events surrounding his traffic stop, but failed to contest the
district court’s reliance on the drug violations in deciding to revoke his release.
Instead, he merely asked the court to be lenient. We will therefore review the
decision below for plain error.
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To prevail under a plain error standard, Williams must prove the following:
(1) there must be an error; (2) that error must be plain; and (3) it must affect
substantial rights. Olano, 507 U.S. at 732, 113 S. Ct. at 1776. Additionally, we
reverse the decision below only if the error “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 736, 113 S. Ct. 1779.
Under 18 U.S.C. § 3583(e), the court may, “ revoke a term of supervised
release, and require the defendant to serve in prison all or part of the term of
supervised release authorized by statute . . . if the court. . . finds by a
preponderance of the evidence that the defendant violated a condition of [his]
supervised release.” 18 U.S.C. § 3583(e)(3). Williams concedes that he violated
the terms of his release by missing two drug counseling sessions and testing
positive for cocaine. Williams argues that these violations were technical in nature
and absent allegations of disorderly conduct during a traffic stop, they would not
have led to revocation of his sentence. Nevertheless, the district court expressly
stated that it was basing its decision on these violations alone, and as revocation
based on such violations comports with the statute, it was not plain error to do so.
See § 3583.
The statute also “directs the court to consider various factors in sentencing
the defendant upon revocation of supervised release, including the history and
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characteristics of the defendant, (a)(1), and deterrence, (a)(2)(B).” United States
v. Moore, 443 F.3d 790, 794 (11th Cir. 2006). We have also noted that, “the court
can use its discretion in sentencing as long as it does not exceed the statutory
maximum or fall below the statutory minimum sentence.” United States v.
Williams, 425 F.3d 987, 990 n.2 (11th Cir. 2005). Accordingly, we find that it was
not plain error for the district court to consider Williams’ criminal history in
deciding the length of the sentence. Moore, 443 F.3d at 794.
As we find no reversible error, we affirm the decision below.
AFFIRMED.
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