United States v. Roddick Moore

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10542
Non-Argument Calendar
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D.C. Docket No. 5:03-cr-00304-LSC-HGD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODDRICK MOORE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(November 14, 2013)
Before HULL, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Roddrick Moore appeals his 60-month sentence, imposed upon revocation of
his supervised release. He argues that his sentence, which was above the advisory
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Guideline range of 37 to 46 months, was procedurally unreasonable because the
district court improperly relied on 18 U.S.C. § 3553(a)(2)(A). He also argues that
his sentence was substantively unreasonable because the court’s upward departure
was based on § 3553(a)(2)(A), and it failed to acknowledge its consideration of his
mitigating arguments. For the reasons discussed below, we affirm.
The facts here are straightforward and not in dispute. Moore pleaded guilty
to several drug-related crimes in 2003, and served around five years in prison.
After his release in June 2008, Moore began an 8-year term of supervised release.
He violated the terms of his supervised release in December 2010 by possessing
and selling cocaine, and failing to notify his probation officer of his questioning by
police. He violated the terms again in February 2012 by possessing cocaine and a
firearm, and failing to notify his probation officer. The district court held a
revocation hearing in January 2013, and sentenced Moore to 60-months
imprisonment. The judge asked if there were “any objections from any party as to
the findings of fact, the calculation of the sentence, or the manner in which the
sentence was pronounced or imposed.” Neither the government nor Moore
objected.
A sentence imposed for revocation of supervised release is reviewed for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.
2006). We review a district court’s decision to exceed the Guideline range in
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imposing a sentence upon revocation of supervised release for an abuse of
discretion. United States v. Brown, 224 F.3d 1237, 1239 (11th Cir. 2000).
However, when a defendant raises a sentencing argument for the first time on
appeal, as Moore has done, review is for plain error. United States v. Aguillard,
217 F.3d 1319, 1320 (11th Cir. 2000). We correct for plain error when: (1) there is
error; (2) the error is plain; and (3) the error affects substantial rights. Id. Error
cannot be plain unless it is “clear under current law.” Id. at 1321 (citation
omitted).
Revocation of supervised release is mandatory when the defendant
possessed a controlled substance or firearm in violation of the conditions of
supervised release. 18 U.S.C. § 3583(g)(1), (2). While the factors for
consideration in discretionary revocation specifically exclude § 3553(a)(2)(A),
mandatory revocation under subsection (g) contains no such exclusion. See
Brown, 224 F.3d at 1241–42. When a defendant is sentenced under subsection (g),
the only limitation is that the term of imprisonment must not exceed the maximum
term of imprisonment authorized under § 3583(e)(3), which, when the original
offense was a class A felony, is five-years imprisonment. 18 U.S.C. § 3583(e)(3),
(g). A district court need not specifically state that it is compelled to revoke
supervised release pursuant to subsection (g) if the conditions implicating the
provision are present. See Brown, 224 F.3d at 1242.
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Because Moore stipulated that he possessed a firearm and a controlled
substance in violation of his supervised release, the conditions implicating
§ 3583(g) were satisfied, and revocation of his supervised release was mandatory.
After not citing to or discussing § 3583(g) in his opening brief, in his reply brief
Moore states that the government’s reliance on this provision “must fail because at
no time during the district court proceedings did the Government, or any other
entity, allege or seek to establish that Mr. Moore was subject to mandatory
revocation pursuant to § 3583(g).” But this claim conflicts with Circuit precedent.
See Brown, 224 F.3d at 1242 (“Although not mentioned by the district court,
Brown’s revocation was mandatory because he possessed a controlled substance
and refused to comply with drug testing.”). The district court did not err in
considering § 3553(a)(2)(A), because the factor is not excluded from consideration
under § 3583(g). Moore’s sentence is therefore procedurally reasonable, and we
affirm in this respect.
Next, we examine Moore’s substantive reasonableness challenge. In
reviewing a sentence outside the Guideline range, we may consider the degree of
variance and the extent of the deviation from the Guidelines. United States v. Irey,
612 F.3d 1160, 1186 (11th Cir. 2010) (en banc) (citing Gall v. United States, 552
U.S. 38, 47, 128 S. Ct. 586, 594–95 (2007)). The justification given should be
sufficiently compelling to support the degree of variance. Irey, 612 F.3d at 1187.
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Moore argues substantive unreasonableness “based in large part” on the
district court’s consideration of § 3553(a)(2)(A), and also because the court
inadequately considered “the possibility” that he “could assist the Government in
other prosecutions, his rehabilitative efforts, and his family obligations.” As we
have discussed, the district court committed no error in considering
§ 3553(a)(2)(A) in a proceeding under § 3583(g). The district court also
considered Moore’s rehabilitative efforts and family obligations, and determined
that repeated violations of his supervised release weighed in favor of a sentence
above the Guideline range. Although Moore is correct that the district court failed
specifically to acknowledge on the record that it had considered his alleged ability
to assist in other prosecutions, it was not required to do so. See United States v.
Dorman, 488 F.3d 936, 938 (11th Cir. 2007).
Moore has not demonstrated that his 60-month sentence was substantively
unreasonable. He admitted a number of violations of his supervised release,
including possession of a controlled substance and firearm. Also, the district court
adequately explained its upward variance from the Guideline range based on
Chapter 7’s policy statement. The court noted that it felt the sentence was
appropriate in light of the § 3553(a) factors, including Moore’s personal
characteristics and history. Finally, the sentence was within the statutory limits,
supporting its reasonableness.
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On this record, Moore’s 60-month sentence was both procedurally and
substantively reasonable, and the district court is AFFIRMED.
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