USCA11 Case: 22-11223 Date Filed: 11/09/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11223
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINIQUE WIMBLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:17-cr-00109-TJC-JBT-1
____________________
USCA11 Case: 22-11223 Date Filed: 11/09/2022 Page: 2 of 4
2 Opinion of the Court 22-11223
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Dominique Wimbley appeals his sentence. Wimbley re-
ceived 24 months’ imprisonment and 12 months’ supervised re-
lease after revocation of his initial supervised release.
Wimbley argues the district court failed to consider
18
U.S.C. § 3583(h)’s limitation on the imposition of supervised re-
lease. If the court had considered the limitation, according to
Wimbley, it would not have imposed the maximum statutory
term.
I.
We typically review de novo the legality of a sentence im-
posed upon revocation of supervised release. United States v. Cun-
ningham,
800 F.3d 1290, 1291 (11th Cir. 2015). However, when a
sentencing challenge is raised for the first time on appeal, we re-
view for plain error. United States v. Henderson,
409 F.3d 1293,
1307 (11th Cir. 2005). Under plain error, we may correct an error
if the defendant demonstrates that (1) there was an error; (2) the
error was plain; (3) the error affects the defendant’s substantial
rights; and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Moore,
22 F.4th 1258, 1264–65 (11th Cir. 2022).
An error is plain if it violates the plain language of a statute
or rule, or where there is binding precedent directly resolving the
USCA11 Case: 22-11223 Date Filed: 11/09/2022 Page: 3 of 4
22-11223 Opinion of the Court 3
issue. United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir.
2003). A plain error affects substantial rights if it was prejudicial,
meaning that the error “actually did make a difference” in the de-
fendant’s sentence. United States v. Rodriguez,
398 F.3d 1291, 1300
(11th Cir. 2005). A defendant has not met his burden of showing
that his substantial rights have been affected by an error where the
effect “is uncertain or indeterminate” and we “would have to spec-
ulate.”
Id. at 1301.
Generally, a district 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.
18 U.S.C. § 3583(e)(3). If the court
finds the offender violated supervised release by possessing a fire-
arm, however, the court must revoke the term of supervised re-
lease and impose a term of imprisonment not to exceed the maxi-
mum authorized under § 3583(e)(3). Id. § 3583(g)(2). Because the
offense that resulted in the term of supervised release was a class C
felony, the maximum imprisonment Wimbley faced upon revoca-
tion of supervised release was two years. Id. § 3583(e)(3); see also
18 U.S.C. § 3559(a)(3). The statutory maximum supervised release
term for a Class C felony is three years.
18 U.S.C. § 3583(b). The
court was authorized to impose a supervised release term to follow
the imprisonment, with the following limitations:
When a term of supervised release is revoked and the
defendant is required to serve a term of imprison-
ment, the court may include a requirement that the
defendant be placed on a term of supervised release
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4 Opinion of the Court 22-11223
after imprisonment. The length of such a term of su-
pervised release shall not exceed the term of super-
vised release authorized by statute for the offense that
resulted in the original term of supervised release, less
any term of imprisonment that was imposed upon
revocation of supervised release.
Id. § 3583(h) (emphasis added). Under § 3583(h), the court was au-
thorized to impose a term of supervised release not to exceed three
years, less the two-year term of imprisonment it imposed upon su-
pervised release. Thus, the court was authorized to impose one
year of supervised release, which is exactly the term it imposed.
Wimbley has not shown plain error as there is no indication
in the record that the district court was unaware of § 3583(h) or
that the court was inclined to impose a more lenient supervised
release term. Moreover, Wimbley has not pointed to any instruc-
tive, binding precedent holding that a district court’s alleged mis-
understanding of the statutory maximum supervised release term
under § 3583(h) is reversible error where the sentence imposed was
within the statutory limits.
AFFIRMED.
