United States v. Radanis Myshon Kirksey , 425 F. App'x 858 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16400 ELEVENTH CIRCUIT
MAY 2, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 05-00308-CR-LSC-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RADANIS MYSHON KIRKSEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 2, 2011)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Radanis Myshon Kirksey appeals his 24-month sentence imposed upon
revocation of supervised release. Kirksey argues that the district court violated
United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other
grounds by United States v. Morrill, 984 F.2d 1136, 1137–38 (11th Cir. 1993), in
failing to elicit objections from him after the imposition of his sentence. Kirksey
also argues that his sentence is substantively unreasonable. After careful review of
the record and the parties’ briefs, we affirm.
I.
We first consider Kirksey’s argument that the district court erred by failing
to elicit objections after the imposition of his sentence. In Jones, we established a
rule requiring district courts to “elicit fully articulated objections, following
imposition of sentence, to the court’s ultimate findings of fact and conclusions of
law,” as well as to “the manner in which the sentence is pronounced.” Jones, 899
F.2d at 1102. We later extended the objection-elicitation requirement of Jones to
revocation of supervised release proceedings. United States v. Campbell, 473 F.3d
1345, 1348 (11th Cir. 2007).
In this case, the district court did not expressly elicit objections after
imposing Kirksey’s sentence. Instead, the district court merely asked Kirksey:
“Anything else? Any other question?” Kirksey answered: “No.” “In applying the
Jones rule, this court has held that when the district court merely asks if there is
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‘anything further?’ or ‘anything else?’ and neither party responds with objections,
then the court has failed to elicit fully articulated objections and has therefore
violated Jones.” Id. We therefore conclude that the district court violated Jones.
Indeed, the government concedes the Jones violation, but argues that this Court
should still affirm Kirksey’s sentence because the record is sufficient for
meaningful appellate review of the substantive reasonableness of Kirksey’s
sentence. See id. at 1347. Normally, “[w]here the district court has not elicited
fully articulated objections following the imposition of sentence, this court will
vacate the sentence and remand for further sentencing in order to give the parties
an opportunity to raise and explain their objections.” Jones, 899 F.2d at 1103. “A
remand is unnecessary, however, when the record on appeal is sufficient to enable
review.” Campbell, 473 F.3d at 1347. We find that the record with respect to this
issue would not be further developed in any significant way upon remand. As
such, we turn now to the merits of Kirksey’s claim that his sentence is
substantively unreasonable.
II.
Kirksey argues that his sentence is substantively unreasonable because the
district court failed to consider his rehabilitative needs, as well as other forms of
punishment such as extending the term of his supervised release or sentencing him
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to home detention. A sentence imposed upon the revocation of supervised release
is reviewed for reasonableness. United States v. Sweeting, 437 F.3d 1105,
1106–07 (11th Cir. 2006). We review the reasonableness of a sentence under a
“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41,
128 S. Ct. 586, 591 (2007).
When imposing a sentence upon revocation of supervised release, the court
must consider the following factors set forth in 18 U.S.C. § 3553(a): (1) the nature
and circumstances of the offense and the history and characteristics of the
defendant; (2) the need to afford adequate deterrence; (3) the need to protect the
public; (4) the need to provide the defendant with educational or vocational
training or medical care; (5) the sentencing guideline range and pertinent policy
statements of the Sentencing Commission; (6) the need to avoid unwarranted
sentencing disparities; and (7) the need to provide restitution to victims. See 18
U.S.C. § 3583(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-
(7)). We consider the final sentence in its entirety in light of the § 3553(a) factors,
United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006), and are mindful
that the district court is “permitted to attach great weight to one factor over others,”
United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (quotation marks
omitted).
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In reviewing sentences imposed for a violation of supervised release, we are
mindful that the guidelines for such sentences were never considered mandatory.
United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006) (“We have consistently
held that the policy statements of Chapter 7 are merely advisory and not binding.”).
Indeed, the Commentary in Chapter 7 of the United States Sentencing Guidelines
recognizes that a district judge may be inclined to consider the sentence she
imposed on the original conviction when imposing a sentence for a supervised
release violation. See, e.g., U.S.S.G. § 7B1.4 cmt. n.4 (Nov. 1, 2009) (“Where the
original sentence was the result of a downward departure (e.g., as a reward for
substantial assistance), or a charge reduction that resulted in a sentence below the
guideline range applicable to the defendant’s underlying conduct, an upward
departure [in the sentence for the supervised release violation] may be
warranted.”).
Nevertheless, even when punishing a supervised release violation, the
district court “must give ‘serious consideration’ to the extent of any departure from
the guidelines, and must offer ‘sufficient justifications’ for its conclusion that an
unusually harsh or light sentence is appropriate.” United States v. Irey, 612 F.3d
1160, 1186 (11th Cir. 2010) (en banc). If the sentence imposed lies outside of the
guideline range, the degree of the variance is relevant to the substantive
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reasonableness of the sentence and, in general, “a major departure should be
supported by a more significant justification than a minor one.” Gall, 552 U.S. at
50, 128 S. Ct. at 597. But we “may not apply a presumption of unreasonableness”
to a sentence outside the guideline range, and we must “give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of
the variance.” Id. at 51, 128 S.Ct. at 597.
We observe that Kirksey’s 24-month sentence is the maximum allowed by
statute,1 and also represents a significant upward variance from the advisory
guideline range of 6 to 12 months imprisonment.2 But we cannot say that this
sentence is unreasonable given Kirksey’s extensive criminal record, and his
repeated failure to comply with the conditions of his supervised release. In
explaining the variance from the guideline range, the district judge told Kirksey: “I
just don’t think [the guideline range is] appropriate in your case.” In imposing a
24-month sentence instead, the court noted that Kirksey had a “horrible record,”
with a “world of convictions.” Indeed, Kirksey’s criminal history reveals over
twenty adult convictions before his underlying 18 U.S.C. § 922(g)(1) conviction in
1
See 18 U.S.C. § 3583(e)(3). Kirksey’s original conviction was for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), which is a Class C felony. See 18
U.S.C. § 924(a)(2); 18 U.S.C. § 3559(a)(3).
2
See U.S.S.G. § 7B1.4(a). Kirksey had a criminal history category of IV at his original
sentencing and the violations of his supervised release were class C violations.
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this case, most of which did not result in criminal history points and therefore were
not reflected in the guideline range.
Moreover, we reject Kirksey’s assertion that the sentence failed to account
for his rehabilitative needs and the other available forms of punishment. To the
contrary, prior to revoking Kirksey’s supervised release, the district court twice
elected to continue Kirksey’s revocation hearing for six months following earlier
violations of his supervised release, primarily to ensure that Kirksey was attending
drug rehabilitation programs and submitting to drug screens. The district court
only revoked Kirksey’s supervised release and imposed a maximum term of
imprisonment after Kirksey consistently failed to follow the terms of his
supervised release and committed multiple additional violations. On these facts,
we cannot say that the district court abused its discretion in sentencing Kirksey to
24 months imprisonment.
For all of these reasons, we affirm Kirksey’s sentence.
AFFIRMED.
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