United States v. Kareem Jackson

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-12101
Non-Argument Calendar
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D.C. Docket No. 1:06-cr-20397-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KAREEM JACKSON,
a.k.a. Jamar Fields,
a.k.a. Face,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 13, 2017)
Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Kareem Jackson appeals his 24-month sentence of imprisonment following
the revocation of his supervised release, pursuant to 18 U.S.C. § 3583(e)(3). On
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appeal, Jackson argues that his sentence is substantively unreasonable because the
supervised-release violations proved by the government were minor and did not
warrant an upward variance from the guideline range of 6 to 12 months. The
court’s decision to vary upward, Jackson contends, indicates that the court
improperly relied on more substantial, but unproven, conduct alleged by the
government. After careful review, we affirm.
In 2007, Jackson pled guilty to holding a person in peonage, in violation of
18 U.S.C. § 1581(a). According to the plea colloquy, Jackson held a minor to a
condition of involuntary servitude and compelled her to work for him as a
prostitute until she could repay $800 that Jackson claimed she owed him. For this
offense, Jackson was sentenced to 84 months of imprisonment followed by three
years of supervised release. Jackson began serving his term of supervised release
on July 19, 2012.
In March 2013, the district court granted the U.S. Probation Office’s petition
to modify the terms of supervised release to include a search condition. In October
2013, the court granted Probation’s petition to modify the terms of supervised
release to include participation in a sex-offender treatment program and location
monitoring for 90 days. In that petition, Probation alleged that had Jackson
violated the conditions of his supervised release by twice submitting a urine
specimen which tested positive for cocaine.
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In February 2014, Jackson admitted to unspecified violations of his
supervised release. On April 10, 2014, following a hearing, the district court
“revoked” Jackson’s supervised release and resentenced him to a three-year term
of supervised release, but no imprisonment. At that time, the court relieved
Jackson of his obligation to participate in a sex-offender treatment program but
ordered him to attend an anger-management program.
About six months later, in October 2014, Probation petitioned the district
court to revoke Jackson’s supervised release. Probation alleged that Jackson had
committed the offenses of sexual battery, robbery, and burglary (Violations 1–3),
and had failed to maintain full-time employment (Violation 4). In a superseding
petition, Probation added that Jackson had failed to give notice of his change in
residence from Virginia to Indiana (Violation 5). On October 26, 2015, over a year
after the court issued a warrant for his arrest, Jackson was arrested in Indianapolis,
Indiana.
A magistrate judge held an evidentiary hearing on the revocation petition in
December 2015. For Violations 1–3, the government alleged that a victim had
reported that Jackson attacked her with pepper spray and then invaded her vaginal
cavity in search of cash. The government claimed that the victim was afraid to
testify, however, so it sought to rely on hearsay statements from the victim through
the testimony of others. Jackson objected to the use of hearsay to sustain the
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violations. Ultimately, the magistrate judge found that live testimony from the
victim was necessary for Violations 1–3. Accordingly, the magistrate judge
recommended that Violations 1–3 be denied and dismissed, but that Violations 4
and 5, which Jackson had conceded, be sustained. The district court adopted the
magistrate judge’s recommendation over the government’s objections.
At the sentencing hearing, the district court announced the guideline range
(6 to 12 months of imprisonment) and the statutory maximum term (24 months of
imprisonment). Then, the court recounted Jackson’s supervised-release history,
noting that the court had extended his supervised release in April 2014 to give him
an opportunity to demonstrate “that he’s not as bad a guy as he appears to be.”
“And now here we are again,” the court said, “and for technical reasons, Mr.
Jackson has escaped three of his violations and he has two violations that have
stuck.”
The district court specifically addressed one of the violations that had
“stuck”—Jackson’s failure to notify Probation of his change of address. In the
court’s view, this violation was an “aggravating factor” because Jackson did not
just fail to notify Probation of a change of address. Rather, he had effectively
absconded to Indiana from Virginia, where he had previously resided. Probation
could have but did not charge Jackson’s change in jurisdiction as a separate
violation, because it would not have affected the guideline range, but the court
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suggested that Probation do so in the future because it “certainly might change
someone’s perspective on the defendant.”
The government recommended the two-year maximum term of
imprisonment with an additional term of supervised release to follow. The
government suggested that the court could take into account Violations 1–3, but
also noted that Jackson had been hostile toward Probation throughout his time on
supervised release.
Jackson contended that the district court could not consider Violations 1–3.
And, in Jackson’s view, imposing the statutory maximum was “really to punish
him for the charges that have been dismissed.” The district court responded,
“Well, or to punish him for having been such a pain on supervision.” The court
elaborated that it had given Jackson a chance and that he “blew it,” having
“managed to find [his] way back here again for whatever reason, including, in [the
court’s] view, absconding to Indianapolis.” Consequently, the court varied upward
and imposed a two-year sentence with no supervised release to follow. Jackson
objected to the court’s sentence and findings of fact, and he now brings this appeal.
We review the sentence imposed upon revocation of supervised release for
reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008). We review the reasonableness of a sentence under a deferential abuse-
of-discretion standard. United States v. Trailer, 827 F.3d 933, 935–36 (11th Cir.
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2016). The party who challenges the sentence bears the burden of showing it is
unreasonable. Id.
If a defendant violates a condition of his supervised release, the district court
may revoke a defendant’s supervised release and impose a prison term. 18 U.S.C.
§ 3583(e)(3). When sentencing a defendant upon revocation of supervised release,
the district court must consider the following § 3553(a) factors: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need for deterrence, protection of the public, and rehabilitation; (3) the
guideline range and the kinds of sentences available; (4) any pertinent policy
statements; (5) the need to avoid sentencing disparities; and (6) the need to provide
restitution to any victims. See 18 U.S.C. §§ 3583(e), 3553(a)(1), (a)(2)(B)–(D), &
(a)(4)–(7). The court may, in its discretion, give greater weight to some factors
over others. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir.
2015). And the court may vary above the range established by the Sentencing
Guidelines. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).
We may not presume that a sentence outside the guideline range is
unreasonable, and we must give due deference to the district court’s decision that
the § 3553(a) factors justify the extent of the variance. United States v. Irey, 612
F.3d 1160, 1186–87 (11th Cir. 2010) (en banc) (stating that the justification given
should be sufficiently compelling to support the degree of variance). We will
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vacate a sentence only if “we are left with the definite and firm conviction 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.” Id. at 1190 (quotation marks omitted); Trailer, 827 F.3d
at 936.
Here, the district court’s decision to impose a two-year sentence of
imprisonment with no supervision to follow was a permissible exercise of its
discretion. We find not support in the record for Jackson’s contention that the
court impermissibly relied on unproven conduct in varying above the guideline
range. Although the parties discussed this conduct, it played no role in the court’s
explanation of its reason for the variance, and the court expressly rejected defense
counsel’s suggestion that a two-year term could have been warranted only if the
unproven conduct were considered. The court explained that the reason for the
upward variance was because Jackson had blown the chance the court gave him in
April 2014, when the court extended his term of supervision rather than ordering
imprisonment. In the court’s view, Jackson had been a “pain” to Probation, as
even defense counsel acknowledged, and he had “managed to find [his] way back
here again for whatever reason, including . . . absconding to Indianapolis.”
The record amply supports the district court’s determination that a sentence
at the statutory maximum of 24 months of imprisonment was necessary to sanction
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Jackson for his breach of the court’s trust and his disregard for the conditions of his
supervised release. See U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b) (“[A]t revocation the
court should sanction primarily the defendant’s breach of trust, while taking into
account, to a limited degree, the seriousness of the underlying violation and the
criminal history of the violator.”). In April 2014, after Jackson admitted to
violating the conditions of his first term of supervised release, the court gave him a
chance, despite the seriousness of his underlying conduct, and extended his term of
supervised release for three years. Around six months later, Probation petitioned
to revoke his supervised release. But Jackson was not found until over a year after
the arrest warrant issued, having effectively absconded to another state. In light of
these facts, we do not find that the district court abused its discretion in concluding
that an upward variance was appropriate. See Irey, 612 F.3d at 1190; Silva, 443
F.3d at 799 (finding that an upward variance was warranted based on the
defendant’s numerous probation violations);
For these reasons, we affirm Jackson’s sentence.
AFFIRMED.
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