United States v. Jason M. Moriarty ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14099
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON M. MORIARTY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:04-cr-00005-CEM-GJK-1
____________________
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2 Opinion of the Court 21-14099
Before ROSENBAUM, JILL PRYOR, and TJOFLAT, Circuit Judges.
PER CURIAM:
Jason Moriarty appeals his 72-month total sentence, consist-
ing of three consecutive statutory-maximum 24-month sentences,
upon the revocation of his supervised release as to three original
counts of conviction. On appeal, he argues that the District Court
imposed a procedurally unreasonable sentence by relying on an al-
legedly clearly erroneous fact when imposing his sentence, namely,
that he was actively in sex-offender treatment at the time he vio-
lated his supervised release. He also argues that his sentence was
substantively unreasonable because the District Court exceeded
the guideline range and stacked three consecutive, statutory-maxi-
mum terms of imprisonment. Finding Moriarty’s sentence to be
both procedurally and substantively reasonable, we affirm.
I.
In 2004, a federal grand jury in the Middle District of Florida
indicted Jason Moriarty on one count of attempting to receive, and
receiving and possessing with intent to sell, material containing im-
ages of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(2)(A), (a)(4)(B), and (b)(1); one count of attempting to
possess and possessing material containing images of child pornog-
raphy, in violation of 18 U.S.C. § 2252A(a)(5)(B); and one count of
receiving and possessing with intent to distribute an obscene visual
depiction of a minor engaging in sexually explicit conduct, in vio-
lation of 18 U.S.C. §§ 1466A(a)(1) and (2).
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Moriarty pleaded guilty to all three counts. The District
Court sentenced him to 240 months’ imprisonment, followed by a
lifetime term of supervised release, which included the standard
conditions of supervision. Moriarty appealed his sentence, arguing
that the District Court erred by imposing a general sentence of 20
years when the statutory maximum for Count Two was ten years.
We agreed, and we vacated Moriarty’s initial sentence and re-
manded the case for resentencing. United States v. Moriarty, 429
F.3d 1012, 1025 (11th Cir. 2005) (per curiam). On resentencing, the
District Court imposed a sentence of 240 months’ imprisonment as
to Count One, and 120 months each for Counts Two and Three,
to run concurrently to Count One. This term of imprisonment was
followed by a lifetime term of supervised release as to Count One,
a five-year term of supervised release for Count Two, and a three-
year term of supervised release for Count Three. The standard
conditions of supervision applied.
Moriarty was released, and his period of supervision com-
menced, on July 1, 2021. On July 6, Moriarty agreed to modify the
terms of his supervised release. The new terms (1) required that
Moriarty participate in a mental health program specializing in sex-
ual-offender treatment; (2) required Moriarty to submit to poly-
graph testing for treatment and monitoring purposes; and (3) pro-
hibited Moriarty from “possessing, subscribing to, or viewing, any
video, magazines, or literature depicting children in the nude
and/or in sexually explicit positions”; and (4) prohibited Moriarty
from either “possessing or using a computer (including a smart
phone, a hand-held computer device, a gaming console, or an
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4 Opinion of the Court 21-14099
electronic device) capable of connecting to an online service or an
internet service provider,” without prior written approval of his
probation officer. The last requirement included accessing a com-
puter “at a public library, an internet cafe, [Moriarty’s] place of em-
ployment, or an educational facility.”
On August 19, Probation Officer Matthew Zorn filed a
memorandum with the District Court, alleging that Moriarty vio-
lated the terms of his supervised release. On August 14, Deputy
Diaz of the Orange County Sheriff’s Office contacted Zorn and
stated that she made contact with Moriarty at a public library in
Orlando, Florida. On August 13, a staff member at the library no-
ticed Moriarty viewing sexually explicit images of minors on a pub-
lic computer. The staff member recognized Moriarty when he re-
turned on August 14 and promptly contacted the authorities. Mo-
riarty told Deputy Diaz that he was looking into adults wearing
baby clothes and wearing diapers and was taking photos of those
images with his cell phone to masturbate at home. Moriarty con-
tacted Zorn on August 14 as well and informed Zorn that he had
been in contact with law enforcement at the library; he admitted
to using a computer to look up photos of adults wearing diapers.
He further admitted that some photos of children appeared as well,
but his intention was to look up photos of adults. Finally, Moriarty
admitted to Zorn that he knew he was not permitted to access the
internet through the library computers.
On August 16, Zorn spoke with the library employee. She
confirmed that she had seen Moriarty’s screen on August 13, and
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she believed she saw a video depicting a minor female touching
herself in a sexual way. She observed images of bondage and minor
children who were duct taped. She also said that Moriarty was tak-
ing photos of the computer screen with his phone. After speaking
with the library employee, Officer Zorn and Probation Officer Cur-
ran met Moriarty. He admitted to using the internet on the library
computer on August 13 and stated that he entered search terms
such as “diaper punishment,” “diaper bondage,” and “diaper kid-
napping,” and that he took photos using his cell phone, though he
deleted the photos. Moriarty also admitted to accessing the inter-
net from the public library again on August 14 to create an email
address. Officers Zorn and Curran confiscated Moriarty’s phone
for further review. Officer Zorn’s memo informed the Court that
it may revoke Moriarty’s supervised release and impose a term of
imprisonment up to two years for each count of conviction, and
that these statutory maximums could be imposed concurrently or
consecutively under 18 U.S.C. §§ 3583(e) and 3584(a). Officer Zorn
petitioned the Court to issue a warrant for Moriarty because he vi-
olated the terms of his supervised release. The Court issued the
warrant as requested.
The probation officer filed a recommendation with the Dis-
trict Court. After recounting the details of the violation, the report
noted that a preliminary review of Moriarty’s phone revealed over
400 images of possible child erotica—with many of the images in-
volving minors in bondage or kidnapping scenarios. The recom-
mendation also stated that the conduct in Moriarty’s presentence
investigation report for his original arrest reflected that he kept
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6 Opinion of the Court 21-14099
handwritten narratives outlining sexual assaults of and bondage ac-
tivities involving minors. Moriarty’s landlord also notified the pro-
bation office that, while cleaning out Moriarty’s room for another
resident to move in, she found books titled Design Ideas for Baby
Rooms and Backyards for Kids. Another resident notified the proba-
tion office that when the new renter moved into Moriarty’s room,
he found a pair of boy’s underwear within the bedding on the bed.
The probation office recommended two years’ imprisonment fol-
lowed by a lifetime term of supervised release with all the same
special conditions.
At Moriarty’s revocation hearing, the District Court found
that Moriarty had violated one condition of his supervised release
and adjudicated him guilty of one grade C violation. The Court
further found that the guideline range was four to ten months, with
a statutory maximum of two years’ imprisonment, and a maxi-
mum of a lifetime term of supervised release. The government
clarified that the maximum sentence was two years per count, and
that Moriarty was originally sentenced on three counts. The gov-
ernment offered 12 photographs into evidence. These photo-
graphs included images of children tied up, children in bondage re-
straints, children tied to a bed, children wearing diapers, and vari-
ous other images of children.
Moriarty spoke on his own behalf. He said:
I’m sorry. I got curious about the Internet. I haven’t
seen a computer in 18 years. . . . I got scared and I
went back to my old way of thinking. I had treatment
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in prison, but I lost that support when I got released,
and I was lost.
Revocation Hr’g Tr., Doc. 148, at 9. He claimed that he was sorry
about the images, and that he had second thoughts almost imme-
diately and deleted them and he noted that he was about to start
with a treatment group, but got arrested before he could start.
Moriarty’s attorney objected to a sentence of six years,
which he anticipated the government was going to ask for. Accord-
ing to the attorney, the original sentence was imposed concur-
rently, the terms of supervised release were imposed concurrently,
and the violation was a single violation. He asked the Court to
consider something far less than even the guideline range, and let
Moriarty try again with treatment, guidance, and supervision. And
if Moriarty stumbles a second time, then impose a sentence like the
government was requesting.
The government requested that Moriarty be sentenced to 24
months per count, to be run consecutively, followed by a lifetime
of supervised release. The government noted that the type of sen-
tence they were recommending for Moriarty was not something
that should be done in every case.
The government reiterated that just over one month after
Moriarty was released, he was caught taking photos of individuals
wearing baby clothes and diapers, and that he admitted that he
took those photos to masturbate at home. The government be-
lieved Moriarty to be a danger to society for several reasons. First,
because after being incarcerated for almost 20 years and after
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8 Opinion of the Court 21-14099
receiving sex-offender treatment in prison, Moriarty violated his
supervision after just one month. The government stated that the
12 photos it had entered into evidence were representative of the
approximately 500 images of child erotica found on Moriarty’s
phone—images that were created between July 10, 2021 and Au-
gust 13, 2021. Particularly alarming to the government was that
one of the photos on the phone was of a live child—not a photo of
a child from the internet—standing in the checkout line of a store.
The government also described the relevant facts of Mori-
arty’s underlying case—facts which, according to the government,
made Moriarty’s actions here even more concerning. In that case,
a search of Moriarty’s bedroom uncovered a book titled Hollywood
Kids, and inside the book were 50 to 100 printed and photographic
images of children, including some of a sadistic nature and some of
children in diapers. At Moriarty’s original sentencing hearing, his
neighbors testified that their six-year-old son woke up crying and
not wearing the diaper they had put him in before bed. The
mother believed Moriarty had come into their house and taken the
diaper—the child’s window had been left open and photos of the
child had been found in Moriarty’s home. The government was
concerned that (1) Moriarty’s past conduct, (2) his own statements
that he went back to his old ways of thinking, (3) the fact that he
went to the library on two consecutive days just one month after
being released, and (4) the number of images he possessed that
were created between July 10 and August 13 all showed that he was
not able to follow the conditions of his release.
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The government asserted that it was recommending a sen-
tence of two years on each count, to be served consecutively. Mo-
riarty’s attorney again requested that the Court “[g]ive him the
high end of the guideline sentence, get him back on supervision,
get him into treatment, and if he does it again, Your Honor, then
lower that kind of boom.” Id. at 19.
The Court then began to impose its sentence. The Court
was concerned that Moriarty violated his supervised release so
quickly. Addressing Moriarty, the Court said:
[T]he only rational explanation for why someone in
your situation on the heels of a 17-year prison sen-
tence would be willing to risk [returning to prison]—
I mean, you indicated that you were grateful to your
probation officer because he helped you find a place
to stay and got you back on your feet. You were get-
ting treatment. So why would you do what you did?
You did it because you can’t control it.
Id. at 20. The Court believed Moriarty was dangerous because,
looking at the evidence, it looked like Moriarty was “either plan-
ning on kidnapping a child or [was] aroused at the thought of a
child being kidnapped.” Id. at 21. While the Court believed that
Moriarty should get some benefit for accepting responsibility, it
also noted that this was not a particularly difficult violation to
prove.
The Court again mentioned that Moriarty could not control
his urges, and that he admitted to his probation officer that he
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10 Opinion of the Court 21-14099
collected this material for sexual stimulation, which was alarming.
While the Court believed that the type of sentence the government
requested should be used sparingly and only for the most danger-
ous people, it said that Moriarty was that type of person. According
to the Court:
[T]his is almost an episode of Law and Order . . . .
That’s how bad this is. Everything is in line here.
The photos of the kids bound and gagged, his admis-
sion that this turns him on. Less than 60 days after
getting released from a 17-year prison sentence he’s
in a public library downloading this stuff and taking
photos of it with his phone. Every single thing is
here. If this were a movie script, someone would say
“This doesn’t happen in real life,” but it did.
Id. at 22.
While the Court believed Moriarty should get some kind of
benefit for accepting responsibility, the judge said “I couldn’t live
with myself if the next time you’re in here there are parents on the
front row of that pew talking about what happened to their child
because someone made the wrong decision.” Id. at 23. According
to the Court, Moriarty had made clear what his obsessions were
and he was not going to stop. The Court noted that Moriarty’s
probation officer should be commended for going above and be-
yond to try to help him, and that he was “getting the treatment [he]
needed to get.” Id. at 23.
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Ultimately the Court determined that Moriarty was “a dan-
gerous person engaged in dangerous activity,” as he had “this treas-
ure trove of photos of children bound and gagged as if you’re either
going to plan to kidnap one or you are just sexually aroused by the
thought of a child being kidnapped, which could turn into some-
thing much worse.” Id. at 23–24. The Court revoked Moriarty’s
supervised release and sentenced him to two years’ imprisonment
for each count, to run consecutively to one another, followed by a
lifetime term of supervised release. In reaching this sentence, the
Court considered the factors set forth in 18 U.S.C. § 3553(a) and the
advisory guidelines and policy statements issued by the United
States Sentencing Commission. When asked if either side had ob-
jections, Moriarty’s attorney said “Yes, Your Honor. I object to
procedural and substantive reasonableness,” in addition to the ob-
jections he had previously stated.
II.
We review the reasonableness of a sentence, including the
imposition of supervised release, under a deferential abuse-of-dis-
cretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007); see United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir.
2003) (stating that supervised-release sentences are reviewed for
abuse of discretion). “With respect to Sentencing Guidelines is-
sues, this Court reviews purely legal questions de novo, a district
court’s factual findings for clear error, and, in most cases, a district
court’s application of the guidelines to the facts with due defer-
ence.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)
(internal quotation marks omitted).
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When reviewing for reasonableness, we must first ensure
that the district court committed no significant procedural error,
such as failing to calculate the guideline range, treating the Guide-
lines as mandatory, failing to consider the 18 U.S.C. § 3553(a) fac-
tors, selecting the sentence based on clearly erroneous facts, or fail-
ing to adequately explain the chosen sentence, including any devi-
ation from the guideline range. Gall, 552 U.S. at 51, 128 S. Ct. at
597. A factual finding is clearly erroneous “when although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105
S. Ct. 1504, 1511 (1985). Even if the district court erred, “we are
not required to vacate the sentence and remand the case if the
court would have likely sentenced [the defendant] in the same way
without the error.” United States v. Scott, 441 F.3d 1322, 1329 (11th
Cir. 2006).
Here, the District Court did not impose a procedurally un-
reasonable sentence by allegedly relying on a clearly erroneous fact
because, in the full context of the sentencing hearing, the District
Court was not under the misapprehension that Moriarty was ac-
tively in sex-offender treatment when he violated his terms of su-
pervised release. 1 The Court made two statements during the
1 The government argues that plain error, and not abuse of discretion, is the
appropriate standard of review because Moriarty’s objection to “procedural
and substantive reasonableness” at the sentencing hearing was not sufficient
to preserve that objection for appeal. Because Moriarty’s sentence is
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21-14099 Opinion of the Court 13
sentencing hearing that referenced Moriarty’s treatment. While
one way to interpret the Court’s comments is that it believed Mo-
riarty was actively receiving sex-offender treatment at the time he
violated the terms of his supervised release, another way of inter-
preting those statements is that the Court knew Moriarty was
about to start sex-offender treatment.
The record shows Moriarty agreed to modify the terms of
his supervised release to include sex-offender treatment only a
month before he violated his supervision. At the sentencing hear-
ing Moriarty, his attorney, and the government all made statements
to the effect that Moriarty lost his treatment when he left prison
and was about to start treatment again. Moriarty explicitly said “I
was about to start with the ITM treatment group, but got arrested
before I could start.” In light of the entire record, the District
Court’s comments are best read as a statement that Moriarty’s pro-
bation officer had gotten him into treatment and Moriarty was
about to receive it. We are not left with a definite conviction that
an error has been committed.
But even if the Court was under the mistaken impression
that Moriarty was receiving treatment at the time of his arrest, the
Court would likely have sentenced Moriarty in the same way with-
out the error. See id. Based on the Court’s comments, it was ap-
palled by the more than 400 photos on Moriarty’s phone, the
procedurally reasonable even under the less rigorous abuse of discretion stand-
ard, we do not reach this argument.
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14 Opinion of the Court 21-14099
content of those photos, and the quickness with which he violated
the terms of his supervision. The Court’s concern that Moriarty
was a danger to society drove its decision.
The District Court did not abuse its discretion and Mori-
arty’s sentence is procedurally reasonable.
III.
Because the District Court imposed a procedurally reasona-
ble sentence, we next examine substantive reasonableness. Mori-
arty essentially makes two arguments regarding substantive rea-
sonableness. At bottom, his first argument is that his sentence is
substantively unreasonable because it is longer than necessary to
achieve the purposes of sentencing. His second argument is that,
regardless of whether the Court’s variance was warranted, his sen-
tence was substantively unreasonable because the Court lacked au-
thority to impose consecutive sentences.
A.
We review the substantive reasonableness of a sentence un-
der a deferential abuse-of-discretion standard, considering the to-
tality of the circumstances. Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Under the abuse-of-discretion standard, we will only vacate the de-
fendant’s sentence if we are “left with the definite and firm convic-
tion that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of
the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)
(en banc). The Supreme Court has stated that a defendant is not
required to raise a specific objection that the sentence is
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unreasonable, which is the standard of review for appeal, but need
only bring to the district court’s attention his view that a longer
sentence is greater than necessary to achieve the purposes of sen-
tencing to preserve a claim that the longer sentence is unreasona-
ble. Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
We look to whether a sentence is substantively reasonable
considering the totality of the circumstances and the § 3553(a) fac-
tors. Irey, 612 F.3d at 1189. A court imposes a substantively unrea-
sonable sentence only when it (1) fails to consider relevant factors
that were due significant weight, (2) gives an improper or irrelevant
factor significant weight, or (3) commits a clear error of judgment
by balancing the proper factors unreasonably. United States v.
Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015) (citation omit-
ted). Further, a district court must evaluate all the § 3553(a) factors,
but the weight accorded to each factor is within the sound discre-
tion of the district court. United States v. Ramirez-Gonzalez, 755 F.3d
1267, 1272-73 (11th Cir. 2014). An appeals court may not apply a
heightened standard of review to sentences outside the guideline
range. Peugh v. United States, 569 U.S. 530, 536–37, 133 S. Ct. 2072,
2080 (2013).
The Sentencing Guidelines provide that a sentence imposed
upon revocation of supervised release should sanction primarily
the defendant’s “breach of trust” for failing to abide by the condi-
tions of the court ordered supervision, while also accounting for,
“to a limited degree, the seriousness of the underlying violation
and the criminal history of the violator.” U.S.S.G. Ch. 7, Pt. A, in-
tro. cmt. (3(b)). The Guidelines explain that the Sentencing
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16 Opinion of the Court 21-14099
Commission chose not to sanction violators for the conduct of the
revocation as if that conduct was being sentenced as new federal
criminal conduct because “the court with jurisdiction over the
criminal conduct leading to revocation is the more appropriate
body to impose punishment for that new criminal conduct,” and
“as a breach of trust inherent in the conditions of supervision, the
sanction for the violation of trust should be in addition, or consec-
utive, to any sentence imposed for the new conduct.” Id. We have
“consistently held that the policy statements of Chapter 7 are
merely advisory and not binding.” United States v. Silva, 443 F.3d
795, 799 (11th Cir. 2006).
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). The relevant § 3553(a)
factors that a district court must consider in determining whether
to impose an imprisonment term upon revocation of supervised
release include: the nature and circumstances of the offense; the
history and characteristics of the defendant; the need for the sen-
tence to afford adequate deterrence to criminal conduct, and pro-
tect the public from further crimes of the defendant; the kinds of
sentences available; any pertinent policy statements; and the need
to avoid unwarranted sentencing disparities. See
18 U.S.C. §§ 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7), 3583(e)(3).
In determining whether to impose a variance, a district court
may consider the nature of a prior offense under the § 3553(a) fac-
tors, because it “fits squarely into . . . the history and characteristics
of the offender” under § 3553(a)(1). United States v. Williams, 526
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21-14099 Opinion of the Court 17
F.3d 1312, 1324 (11th Cir. 2008). The district court has broad dis-
cretion to decide whether the § 3553(a) factors justify a variance.
Gall, 552 U.S. at 51, 128 S. Ct. at 597. The sentencing court may
impose an upward variance based on a defendant’s uncharged crim-
inal conduct, the defendant’s history and characteristics, and the
need to promote respect for the law, afford adequate deterrence,
and protect the public. United States v. Overstreet, 713 F.3d 627,
637-38 (11th Cir. 2013).
Here, the District Court’s sentence was not substantively un-
reasonable. Moriarty’s argument that the Court failed to consider
the Chapter 7 sentencing statement is without merit, because the
Court explicitly stated that it did. With respect to sentencing dis-
parities, the Court acknowledged that imposing three consecutive
statutory maximum sentences was strong medicine that should be
used sparingly. But given the quickness with which Moriarty vio-
lated the terms of his supervision, the number of photos found on
Moriarty’s phone, the content of those photos, and the similarity
to Moriarty’s underlying convictions, the Court believed such a
sentence was appropriate here. Further, the Court acknowledged
Moriarty’s acceptance of responsibility and weighed it along with
the other factors it considered. The Court discussed all those fac-
tors in both explaining why it varied upward from the guideline
range and why it ordered the statutory maximum sentences to be
served consecutively. The Court considered all relevant factors and
did not abuse its discretion in balancing them.
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B.
Moriarty also argues that the Court lacked the discretion to
impose consecutive sentences. If multiple terms of imprisonment
are imposed on a defendant at the same time, the terms may run
concurrently or consecutively. 18 U.S.C. § 3584(a). “Multiple terms
of imprisonment imposed at the same time run concurrently un-
less the court orders or the statute mandates that the terms are to
run consecutively.” Id. A court must consider the § 3553(a) factors,
as to each offense for which a term of imprisonment is being im-
posed, in determining whether to order a sentence to run concur-
rently or consecutively. 18 U.S.C. § 3584(b); United States v. Ballard,
6 F.3d 1502, 1505 (11th Cir. 1993).
In United States v. Quinones, a defendant was serving concur-
rent terms of supervised release for two different convictions in
two separate district courts. 136 F.3d 1293, 1294 (11th Cir. 1998).
He violated the conditions of his supervised release, and his two
separate cases were consolidated for a single revocation hearing.
Id. The district court revoked his terms of supervised release and
sentenced him to 18 months’ imprisonment for each violation, to
be served consecutively. Id. Quinones appealed, arguing that the
district court lacked the discretion to sentence him to consecutive
terms of imprisonment following the revocation of his concurrent
terms of supervised release. Id. at 1295. We held that whether the
terms of imprisonment for each violation were to be consecutive
or concurrent was a question that § 3584(a) entrusts to the court’s
discretion. Id. We then noted that the Sentencing Guidelines’s pol-
icy statements that address revocation say nothing about
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concurrence or consecutiveness, leaving intact the district court’s
statutory discretion. Id.
Moriarty argues that Quinones does not apply because his
terms of supervised release were not imposed by two different ju-
risdictions in two separate cases—he has one case with supervised
release imposed by the same court simultaneously for multiple
counts of the same indictment. But our holding in Quinones was
not limited to such a scenario. We said: “Quinones had two such
terms [of supervised release], and the district court could therefore
revoke both and sentence Quinones to a term of imprisonment for
each violation. Whether these terms were to be consecutive or
concurrent was a question that § 3584(a) entrusts to the court’s dis-
cretion.” Id. Here, Moriarty had three terms of supervised release.
The District Court had the discretion to revoke and sentence him
on all three.
Moriarty further argues that the Supreme Court under-
mined Quinones in Johnson v. United States, 529 U.S. 694, 120 S. Ct.
1795 (2000). But Johnson did not address the same type of situation.
Johnson concerned a circuit split about whether § 3583(h) applied
retroactively to cases in which the initial offense conduct occurred
before the date of its enactment. The Supreme Court determined
that it did not apply retroactively, and that Johnson’s case did not
present any ex post facto issue. Id. at 701–02, 120 S. Ct. at 1802.
Thus, Johnson’s case turned on whether § 3583(e)(3) permitted the
imposition of supervised release following a recommitment. Id.
at 702–03, 120 S. Ct. at 1802. The Court went on to hold, as a
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20 Opinion of the Court 21-14099
textual matter, that § 3583(e)(3) left open the possibility of super-
vised release after reincarceration, such that even before § 3583(h),
courts could properly impose supervised release following reincar-
ceration. Id. at 713, 120 S. Ct. at 1807. Nothing in the Court’s dis-
cussion addressed § 3584 or whether a district court may impose
new terms of imprisonment consecutively.
Under our prior-panel-precedent rule, “a prior panel’s hold-
ing is binding on all subsequent panels unless and until it is over-
ruled or undermined to the point of abrogation by the Supreme
Court or by this [C]ourt sitting en banc.” United States v. Archer, 531
F.3d 1347, 1352 (11th Cir. 2008). Johnson did not undermine Qui-
nones to the point of abrogation. And even if it had, post-Johnson
we have cited Quinones to hold that a district court acts within its
discretion when imposing a consecutive sentence upon revocation
of two terms of concurrent supervised release. United States v.
Sweeting, 437 F.3d 1105, 1106–07 (11th Cir. 2006).
* * *
Here, the District Court did not impose a substantively un-
reasonable sentence in sentencing Moriarty to three consecutive
statutory-maximum terms of imprisonment because he violated a
condition that applied to all three of his terms of supervised release,
the Court had discretion to do so under law, and the Court appro-
priately weighed the § 3553(a) factors.
AFFIRMED.