USCA11 Case: 21-11049 Date Filed: 04/14/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11049
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY BERNARD FRANKLIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:05-cr-00085-MTT-CHW-1
____________________
USCA11 Case: 21-11049 Date Filed: 04/14/2022 Page: 2 of 5
2 Opinion of the Court 21-11049
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Tony Franklin appeals the 36 months of supervised release
imposed as part of his sentence following the revocation of his su-
pervised release. Because his argument on appeal is foreclosed by
binding precedent, we affirm.
I.
Franklin pleaded guilty to and was convicted of possession
with intent to distribute cocaine, in violation of
21 U.S.C. § 841(a),
(b)(1)(C) (Count 1), and carrying a firearm in furtherance of a drug
trafficking crime, in violation of
18 U.S.C. § 924(c)(1) (Count 2).
Franklin was sentenced to consecutive terms of 57 months’ impris-
onment on Count 1 and 60 months’ imprisonment on Count 2, to
be followed by 5 years’ supervised release.
Franklin was alleged to have violated his term of supervised
release by committing new state offenses. The district court held
a revocation hearing during which it found that Franklin commit-
ted three violations of his supervised release. After hearing the par-
ties’ arguments, the district court revoked Franklin’s supervised re-
lease and imposed a sentence of 30 months’ imprisonment to be
followed by 36 months’ supervised release. Neither party objected
to the term of supervised release imposed.
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21-11049 Opinion of the Court 3
II.
On appeal, Franklin argues that the district court erred in
imposing this term of supervised release because it exceeds what is
statutorily authorized by
18 U.S.C. § 3583(h). He contends that,
under § 3583(b), his maximum terms of supervised release were 36
months for Count 1 and 60 months for Count 2. Since § 3583(h)
further reduces these maximum terms of supervised release by any
term of imprisonment imposed as part of his revocation sentence,
Franklin argues that the district could impose—at most—concur-
rent terms of 6 months’ supervised release on Count 1 and 30
months’ supervised release on Count 2.
Because Franklin did not raise this objection in the district
court, we review only for plain error. United States v. Moore,
22
F.4th 1258, 1264 (11th Cir. 2022). To reverse under this standard,
there must be (1) an error, (2) that is plain, (3) that affected the de-
fendant’s substantial rights, and (4) “seriously affects the fairness,
integrity or public reputation of judicial proceedings.”
Id. at 1264–
65 (internal quotation mark omitted).
When a district court revokes a defendant’s initial term of
supervised release and imposes a term of imprisonment, it may also
include a subsequent term of supervised release as part of the rev-
ocation sentence.
18 U.S.C. § 3583(h). The length of this term of
supervised release may not “exceed the term of supervised 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. Section 3583
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4 Opinion of the Court 21-11049
further states that, “[e]xcept as otherwise provided,” the authorized
term of supervised release for a Class A felony is not more than
five years, and for a Class C felony, not more than three years.
Id.
§ 3583(b)(1)-(2).
Violations of
18 U.S.C. § 924(c)(1) carry a maximum sen-
tence of life and, as such, constitute Class A felonies. United States
v. Smith,
967 F.3d 1196, 1215 (11th Cir. 2020), cert. denied,
141 S.
Ct. 2538 (2021);
18 U.S.C. §§ 924(c)(1), 3559(a)(1). Violations of
21 U.S.C. § 841(b)(1)(C) carry a maximum sentence of 20 years’ im-
prisonment, and are therefore Class C felonies, and the statute im-
poses “at least 3 years” of supervised release. United States v. Ger-
row,
232 F.3d 831, 835 (11th Cir. 2000) (per curiam);
18 U.S.C.
§ 3559(a)(3);
21 U.S.C. § 841(b)(1)(C).
As we have explained, § 841(b)(1)(C) fits within § 3583(b)’s
“[e]xcept as otherwise provided” language because it expressly pro-
vides for a term of supervised release of at least three years. United
States v. Sanchez,
269 F.3d 1250, 1287 (11th Cir. 2001) (en banc),
abrogated in part on other grounds by United States v. Duncan,
400
F.3d 1297 (11th Cir. 2005). Relying on the text of the two statutes
and their legislative histories, we concluded that Ҥ 3583(b) does
not limit the term of supervised release authorized in § 841(b)(1)(C)
and that a term of supervised release over the minimum set forth
in § 841(b)(1)(C) may be imposed notwithstanding the provisions
of § 3583(b).” Id.
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21-11049 Opinion of the Court 5
III.
Franklin’s 36-month term of supervised release is not only
valid but statutorily required under § 841(b)(1)(C). As we have ex-
plained, Franklin’s § 841(b)(1)(C) conviction fits squarely within
the exception that § 3583(b) expressly provides for. Given this ex-
ception, we have explicitly rejected the argument that Franklin as-
serts here: that § 3583(b) provides the upper bounds to any term of
supervised release imposed under § 841(b)(1)(C). See Sanchez,
269 F.3d at 1287. Thus, § 3583(b)(2)’s upper limit is not the proper
starting point for determining Franklin’s term of supervised release
under § 3583(h), and any term of supervised release at or above the
statutorily required 36 months would have been legally valid.
Accordingly, because the district court committed no plain
error, we affirm.
AFFIRMED.
