United States v. John Wesley McMillan

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13474 FEBRUARY 16, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 97-00206-CR-BAE-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WESLEY MCMILLAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 16, 2006)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
John Wesley McMillan appeals the district court’s decision revoking his
supervised release sentence and imposing a 24-month term of incarceration.
McMillan argues on appeal that the district court plainly erred (1) in making a
credibility determination and finding by a preponderance of the evidence that he
violated a condition of his supervised release when he was arrested for stealing a
purse at a club and (2) in sentencing McMillan to the statutory maximum sentence.
Each issue is discussed in turn.
Generally, a district court’s decision regarding revocation of supervised
release is reviewed for abuse of discretion. United States v. Frazier, 26 F.3d 110,
112 (11th Cir. 1994). However, because McMillan failed to object below on the
grounds asserted on appeal, we review the revocation and sentence for plain error.
See United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). Under the
plain error standard, McMillian “must show that: (1) an error occurred; (2) the
error was plain; (3) it affected his substantial rights; and (4) it seriously affected
the fairness of the judicial proceedings.” Id. The test for showing that the error
affected McMillian’s substantial rights and thus “the outcome of the district court
proceedings” is the formulation of a reasonable probability of a different result,
which means a probability “sufficient to undermine confidence in the outcome.”
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.), cert denied, 125 S.Ct.
2935, 162 L.Ed.2d 866 (June 20, 2005).
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Issue 1: Credibility Determination
McMillan argues that the evidence presented at the probation revocation
hearing was insufficient for the district court to determine by a preponderance of
the evidence that McMillan violated the terms of his supervised release. McMillan
explains that three distinct versions of what occurred were presented: that of
Miacah Cooper, who was the boyfriend of the woman whose purse was stolen, that
of Officer Zearing, who apprehended McMillan, and that of McMillan. Because
all three contradicted one another, he argues that Cooper’s and Officer Zearing’s
testimonies were unreliable.
The revocation of supervised release is authorized when a defendant violates
any term of his supervised release. 18 U.S.C. § 3583(e)(3). “The credibility of a
witness is in the province of the factfinder and [we] will not ordinarily review the
factfinder’s determination of credibility.” United States v. Copeland, 20 F.3d 412,
413 (11th Cir. 1994). The district court’s credibility determinations are entitled to
deference and its factual findings will be accepted, unless clearly erroneous.
United States v. Holland, 874 F.2d 1470, 1473 (11th Cir. 1989). Contrary to
McMillan’s assertions, “[i]n a probation revocation proceeding, all that is required
is that the evidence reasonably satisfy the judge that the conduct of the probationer
has not been as good as required by the conditions of probation; evidence that
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would establish guilt beyond a reasonable doubt is not required.” United States v.
O’Quinn, 689 F.2d 1359, 1361 (11th Cir. 1982). When confronted with a violation
of supervised release, the court may, after considering the factors enumerated in 18
U.S.C. §§ 3553(a), among other things, “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 for the offense that resulted in such term of supervised release
. . . .” 18 U.S.C. § 3583(e)(3).
The district court did not plainly err when it determined that McMillan
violated the terms of his supervised release. The evidence presented at the
revocation hearing established that (1) two witnesses testified to seeing the stolen
purse drop from under McMillan’s shirt; (2) the same two witnesses also testified
to the identity of McMillan based on his blue shirt with red stripes; (3) McMillan
admitted to lying to his probation officer about his being at the club the night of his
arrest; and (4) McMillan has a criminal history of stealing.
Issue Two: Statutory Maximum Sentence
McMillan argues that the district court erred in sentencing him to 24 months
imprisonment because in making its decision, the district court considered the
incorrect guidelines range. McMillan argues that according to Georgia law, his
state charge of theft by taking should have been treated as a misdemeanor rather
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than a felony. However, for guidelines purposes, the district court treated the
offense as a Grade B violation, rather than a Grade C violation. McMillan argues
further that, if the district court had treated his offense as a Grade C violation, with
his criminal history of V, he should have received a guidelines sentence of 7 to 13
months, rather than the 18 to 24 months recommended by the guidelines for a
Grade B violation.
Chapter 7 policy statements of the Sentencing Guidelines are merely
advisory and thus, non-binding; however, courts must at least consider them in
determining a defendant’s sentence upon revocation. United States v. Cook, 291
F.3d 1297, 1301-02 (11th Cir.2002); see also 18 U.S.C. § 3553(a)(4)(B) (stating
that in determining the particular sentence to be impose, the court shall consider, in
the case of a violation of probation or supervised release, the applicable guidelines
or policy statements issued by the Sentencing Commission). Chapter 7 provides
three grades of probation and supervised release violations, the two most relevant
to McMillan’s case being:
(2) Grade B Violations--conduct constituting any other federal, state,
or local offense punishable by a term of imprisonment exceeding one
year;
(3) Grade C Violations--conduct constituting (A) a federal, state, or
local offense punishable by a term of imprisonment of one year or
less; or (B) a violation of any other condition of supervision.
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U.S.S.G. §7B1.1. Another policy statement in Chapter 7, U.S.S.G. §7B1.4,
provides recommended ranges of imprisonment applicable upon revocation. See
U.S.S.G. §7B1.4. When a Class B violation is coupled with a criminal history
category of V, the guidelines recommend a 18 to 24 month sentence and when a
Class C violation is coupled with a criminal history category of V, the guidelines
recommend a 7 to 13 month sentence. See U.S.S.G. §7B1.4(a).
The statute dictates that when revoking a sentence, the district court may not
require a defendant to serve a sentence of more than 3 years if such offense is a
Class B felony or more than 2 years if such offense is a Class C felony. 18 U.S.C.
§ 3583(e). Moreover, in determining the particular sentence to be imposed, one of
the factors the court may consider is the need to provide restitution to victims of
the offense. But, we have held that nothing “requires the district court to state on
the record that it has explicitly considered each of the § 3553(a) factors or to
discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005); see also 18 U.S.C. § 3553(a)(7).
The Georgia crime of “theft by taking” is codified at O.C.G.A. § 16-8-2.
See O.C.G.A. § 16-8-2. According to O.C.G.A. § 16-8-12, a person convicted of
a violation of O.C.G.A. § 16-8-2 shall be punished for a misdemeanor except
when: (1) the value of the property subject to the theft exceeded $500 in value; (2)
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the property subject to the theft was any amount of anhydrous ammonia; (3) the
property was taken by a fiduciary in breach of a fiduciary obligation or by an
officer or employee of a government or a financial institution in breach of his or
her duties as such officer or employee; (4) the property subject to the theft was a
memorial or any ornamentation to the dead; (5) the property subject to the theft
was a motor vehicle or was a motor vehicle part exceeding $100 in value; or (6) the
property subject to the theft was a vehicle engaged in commercial transportation of
cargo. See O.C.G.A. § 16-8-12(a).
The district court did not plainly err in sentencing McMillan to the statutory
maximum of 24 months. Even if McMillan meets the first two prongs of the plain
error test because (1) his offense constitutes a misdemeanor, not a felony, under
Georgia law, and (2) the district court’s finding that McMillan committed a felony
probably led the court to consider the wrong, higher advisory range, McMillan
fails to meet the third prong of plain error review, because he fails to show that the
outcome of the proceedings would have been different but for the error. He has
presented no evidence that the district court considered sentencing him to a smaller
amount of time but felt bound by the guidelines range. Furthermore, the 24-month
sentence did not exceed the statutory maximum; rather, it was the maximum
allowable sentence under the statute governing revocation of supervised release.
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Upon review of the record and consideration of the parties’ briefs we discern
no reversible error. Thus, we affirm the revocation of McMillan’s supervised
release and the imposition of 24-months of incarceration.
AFFIRMED.
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