United States v. Rodney Lamon Lutin

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12900
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY LAMON LUTIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:10-cr-00081-JB-M-1
____________________
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2 Opinion of the Court 21-12900
Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Rodney Lutin appeals his 60-month sentence imposed upon
revocation of his supervised release, pursuant to 18 U.S.C. § 3583.
He argues that his sentence, an upward variance to the statutory
maximum, was unreasonable because the district court placed too
much emphasis on the nature of his violation and ignored mitigat-
ing evidence about his arguable success while on supervised re-
lease. Because the district court committed no reversible error, we
affirm Lutin’s sentence.
I.
In May 2011, Lutin pleaded guilty to a single count of pos-
session with intent to distribute crack cocaine, in violation of 21
U.S.C. § 841(a)(1). Lutin was sentenced to 51 months in custody to
be followed by 96 months of supervised release. Lutin served his
sentence of incarceration, and his supervised release began on Jan-
uary 3, 2014. As conditions of his release, Lutin was required to
participate in a drug testing and treatment program and was pro-
hibited from committing another offense, possessing a firearm or
dangerous weapon, and illegally possessing a controlled substance.
Lutin served the first three years of his supervised release
without incident. Then, beginning in June 2017, Lutin received
multiple reprimands from the probation office for violating the
drug-provisions of his conditions of supervised release:
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21-12900 Opinion of the Court 3
• June 22, 2017: The district court was informed that Lutin
tested positive for cocaine which resulted in a verbal repri-
mand and his placement in a more intensive drug testing
group.
• June 4, 2018: The district court was informed that Lutin
tested positive for illegal substances which resulted in a writ-
ten reprimand and his placement in drug treatment.
• August 29, 2018: The district court was informed that Lutin
tested positive for cocaine which resulted in a written repri-
mand and his continued participation in the urine surveil-
lance and drug treatment programs.
• January 29, 2019: The district court was informed that Lutin
tested positive for cocaine which resulted in a written repri-
mand and his continued participation in the urine surveil-
lance and drug treatment programs.
• October 6, 2019: The district court was informed that Lutin
tested positive for cocaine which resulted in a written repri-
mand and his placement into the intensive testing group of
the urine surveillance program.
Lutin was allowed to continue on supervised release after
each of these five violations. However, following further viola-
tions of the conditions of his supervised release, including commit-
ting another offense, the probation office petitioned the district
court on August 13, 2020, to issue a warrant for Lutin and recom-
mended the revocation of his term of supervision. The petition
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4 Opinion of the Court 21-12900
alleged that Lutin had committed the following violations of his
terms of supervised release:
• Technical violation of standard #6 for failing to notify pro-
bation of a new address;
• Technical violation of standard #7 for being in possession of
a controlled substance (approximately 761 grams of rock co-
caine and 168 grams of powder cocaine);
• Statutory violation for new criminal conduct (charged with
reckless endangerment in violation of state law);
• Statutory violation for new criminal conduct (charged with
criminal mischief in violation of state law);
• Statutory violation for new criminal conduct (charged with
trafficking cocaine in violation of state law);
• Statutory violation for new criminal conduct (charged with
attempting to elude a police officer in violation of state law);
• Statutory violation for new criminal conduct (charged with
conspiracy to possess with intent to distribute controlled
substance in violation of federal law);
• Statutory violation for possession of a firearm and ammuni-
tion.
The petition set out the allegations regarding the new crim-
inal charges as follows. In early August 2020, a reliable confidential
informant informed the Mobile County Sheriff’s Office (MCSO)
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21-12900 Opinion of the Court 5
that he had witnessed Lutin selling cocaine while armed with a
gun. Lutin was observed multiple times entering a home in Mo-
bile, Alabama (Mobile Home), and subsequently entering a Lexus
parked behind the home. The Lexus had a personalized front tag
with the name LUTIN. Law enforcement officers similarly ob-
served these operations at the Mobile Home in the preceding
months.
Then, on August 6, 2020, Lutin was observed traveling to
the Mobile Home multiple times. After leaving the Mobile Home,
Lutin drove to and parked in front of a residence on North Carolina
Street. Once MCSO deputies saw that Lutin’s vehicle was station-
ary, they initiated contact. Deputy Gazzier pulled his marked ve-
hicle, with lights and siren active, in front of Lutin’s vehicle; Dep-
uty Wilson pulled his vehicle directly behind Lutin’s. Deputy
Gazzier exited his vehicle and approached Lutin while Lutin was
still sitting in the driver’s seat with his vehicle running. Lutin failed
to comply with repeated commands to exit the vehicle, and instead
“put his vehicle in reverse ramming into the front end of Deputy
Wilson’s vehicle on two separate occasions causing significant
damage and pushing Deputy Wilson’s vehicle back creating a lane
of travel for his escape.” Once his vehicle was no longer blocked
in, Lutin drove in Deputy Gazzier’s direction, forcing the deputy
to “jump[] out from the path of [Lutin’s] vehicle to avoid being run
over.” Deputy Wilson then pursued Lutin’s fleeing vehicle, ulti-
mately intervening, disabling Lutin’s vehicle, and taking Lutin into
custody.
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6 Opinion of the Court 21-12900
On August 9, 2021, the district court held a hearing in which
it separately addressed both the revocation of Lutin’s supervised
release from his 2011 conviction and the sentencing for his 2020
federal controlled substance offense. Lutin waived his right to a
hearing on the supervised release violations, and the district court
found Lutin had violated the terms and conditions of his supervised
release. Neither party objected to the Sentencing Guidelines range
of 27–33 months’ imprisonment as set out in the revocation packet.
The United States recommended the district court impose
the maximum 60-month revocation sentence and requested it run
consecutive to the sentence imposed for Lutin’s new 2020 drug
conviction. In support, the United States highlighted Lutin’s five
positive drug tests while on supervised release. The United States
also raised the circumstances surrounding Lutin’s arrest, emphasiz-
ing the risk he posed to the arresting deputies and the public as well
as the danger posed by the firearm he possessed. 1
Defense counsel argued that Lutin should receive a 27-
month revocation sentence. Counsel explained that Lutin had
completed seventy-five percent of his supervised release with only
some positive drug tests. Counsel also argued that Lutin’s revoca-
tion sentence should run concurrently with the sentence to be
1 In the factual proffer to his plea agreement, Lutin admitted to possessing a
9mm pistol and ammunition, which was found in the primary bedroom fol-
lowing a search of his residence.
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21-12900 Opinion of the Court 7
imposed for his new conviction since both arose out of the same
conduct.
After hearing the parties’ arguments, the district court noted
that it was concerned that Lutin’s 2020 conviction was for “very
similar conduct that got [him] in this system in the first place.” The
court also emphasized Lutin’s efforts to escape law enforcement as
they were apprehending him, including his damaging of two police
vehicles, fleeing the scene, and “the possibility of seriously injuring
the officers.” Noting that these facts were “extremely concerning,”
the district court exercised its discretion to vary upward from the
advisory Guidelines range and imposed the statutory maximum
revocation sentence of 60 months. The court ordered Lutin to
serve those 60 months consecutively to the sentence to be imposed
for his new conviction.
Lutin now appeals his 60-month revocation sentence. He
argues that his sentence is unreasonable because the district court
did not consider the 18 U.S.C. § 3553(a) sentencing factors, his ar-
guments in mitigation, or the applicable Guidelines provisions and
policy statements. Lutin also contends that the court put undue
emphasis on the circumstances surrounding his new criminal
charges.
II.
A district court may revoke a defendant’s term of supervised
release and impose a term of imprisonment if the court “finds by a
preponderance of the evidence that the defendant violated a
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8 Opinion of the Court 21-12900
condition of supervised release.” 18 U.S.C. § 3583(e)(3). Before im-
posing a term of imprisonment upon revocation, the district court
must consider certain sentencing factors outlined in 18 U.S.C. §
3553(a). See id. § 3583(e). A sentence imposed upon revocation of
supervised release is reviewed for reasonableness. United States v.
Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). We will affirm
any sentence that falls within the range of reasonable sentences.
United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc).
The party who challenges the sentence bears the burden to show
that the sentence is unreasonable. United States v. Trailer, 827 F.3d
933, 936 (11th Cir. 2016) (per curiam).
The district court need not state on the record that it has
explicitly considered each of the § 3553(a) sentencing factors or dis-
cuss them all individually, so long as the record reflects that it con-
sidered the defendant’s arguments and the sentencing factors.
United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007). Fur-
ther, “the weight given to each factor is committed to the sound
discretion of the district court.” United States v. Butler, 39 F.4th
1349, 1355 (11th Cir. 2022). Even if a particular factor is already
accounted for by the Guidelines, district courts maintain discretion
to consider that factor in sentencing. See United States v. Gold-
man, 953 F.3d 1213, 1222 (11th Cir. 2020).
III.
Here, the district court did not abuse its discretion in impos-
ing a 60-month revocation sentence. Lutin has not met his burden
of proving that his sentence is unreasonable. Although the district
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21-12900 Opinion of the Court 9
court did not explicitly mention each sentencing factor, the record
reflects that the court considered the appropriate factors. For ex-
ample, the district court stated it had considered the advisory sen-
tencing range, see 18 U.S.C. § 3553(a)(4), as well as the Guidelines
provisions and pertinent policy statements, see id. § 3553(a)(5).
And the court also considered Lutin’s arguments in mitigation, spe-
cifically addressing his failed drug tests by informing him “that’s
not part of your conduct that I have a problem with.” Instead, the
court emphasized that the aspects of Lutin’s conduct that were
most problematic were the similarity between his new criminal
charges and the offense that he was serving supervised release for,
his efforts to escape law enforcement, his damage to law enforce-
ment vehicles, “and the possibility of seriously injuring the offic-
ers.” The district court did not err in considering these factors, and
its emphasis on the nature and circumstances of the offense and
need to protect the public was well within the court’s discretion.
See Butler, 39 F.4th at 1355; Goldman, 953 F.3d at 1222. Moreover,
the court was within its discretion to weigh these factors more
heavily than mitigation evidence, including his arguable success on
supervised release.
AFFIRMED.