United States v. Kinzie DeCarlos Thomas

Case: 13-12880 Date Filed: 07/07/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12880
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-00004-MP-AK-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KINZIE DECARLOS THOMAS,
a.k.a. KD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 7, 2014)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Kinzie Thomas appeals his 262-month sentence imposed after his probation
revocation. Because the sentence is neither procedurally nor substantively
unreasonable, we affirm.
I.
Thomas pleaded guilty to conspiracy to distribute and possess with intent to
distribute more than 5 kilograms of cocaine, and more than 50 grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and (iii), and 846. At his
sentencing proceedings, his initial guideline range was calculated at 262- to 327-
months imprisonment. However, his statutory minimum sentence, and thus his
guideline range, became life imprisonment because he was considered a career
offender based on his previous drug convictions. United States Sentencing
Guidelines (USSG) §§ 4B1.1, 5G1.1(b). Prior to sentencing, the government filed
a motion for reduction of sentence based on Thomas’s substantial assistance. As a
result, the district court sentenced Thomas to five years probation.
Four years into his term of probation, Thomas admitted to violating its
conditions by selling cocaine on three occasions. The court sentenced him to 262-
months imprisonment. Thomas now challenges that sentence in this appeal.
II.
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Generally, appellate courts review sentencing decisions under an abuse-of-
discretion standard.1 Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007). We review the sentence imposed upon the revocation of probation for
reasonableness. See United States v. Velasquez Velasquez, 524 F.3d 1248, 1252
(11th Cir. 2008) (per curiam); see also United States v. Mitsven, 452 F.3d 1264,
1266 n.1 (11th Cir. 2006) (“The analysis of the revocation proceedings relating to
probation and supervised release are essentially the same.” (quotation marks
omitted)). In reviewing the reasonableness of a sentence, we conduct a two-step
inquiry. Gall, 552 U.S. at 51, 128 S. Ct. at 597. First, we must ensure that the
sentence was procedurally reasonable, meaning the district court (1) properly
calculated the guideline range, (2) treated the guidelines as advisory,
(3) considered the § 3553(a) factors, (4) did not rely on clearly erroneous facts, and
(5) adequately explained the chosen sentence. Id. Once we determine that a
sentence is procedurally sound, we examine whether the sentence was
substantively reasonable in light of the totality of the circumstances. Id.
A.
Thomas first argues that his sentence is procedurally unreasonable because
the district court (1) did not consider the proper guideline range; (2) failed to
1
Where, as here, a defendant raises an argument for the first time on appeal, we would typically
review for plain error. See United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000) (per
curiam). We have not yet decided in a published opinion whether plain error review applies to
an unpreserved challenge to a sentence. Because Thomas’s claims fail under either plain error or
an abuse-of-discretion standard, we need not decide that issue here.
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justify what Thomas characterizes as an upward variance; and (3) failed to
consider the § 3553(a) sentencing factors. Our review of the record leads us to
reject each of Thomas’s arguments.
First, because Thomas’s offense of conviction carried a statutory minimum
term of life imprisonment, that term became Thomas’s guideline range for a
revocation of probation. When a defendant violates a condition of probation, the
court may revoke the sentence of probation and resentence the defendant.
18 U.S.C. § 3565(a)(2). Section 7B1.4(a) of the Sentencing Guidelines provides a
table that sets forth the range of imprisonment applicable upon revocation. But
that section also says, “[w]here the minimum term of imprisonment required by
statute, if any, is greater than the maximum of the applicable range, the minimum
term of imprisonment required by statute shall be substituted for the applicable
range.” USSG § 7B1.4(b)(2); see also United States v. Milano, 32 F.3d 1499, 1503
(11th Cir. 1994) (finding USSG § 7B1.4(b)(2) applied and that “the district court in
this case was within its statutory authority when it sentenced Appellant [upon
revocation of his probation] to a 151-month term of incarceration, a sentence
which was allowable at Appellant’s initial sentencing”).
We therefore reject Thomas’s argument that the district court should have
calculated his sentence using the table in § 7B1.4(a) as 51- to 63-months
imprisonment based on his criminal history category of VI and his admitted
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probation violation that was a Class A felony. See id. § 7B1.4(a). Instead, the
correct guideline range for sentencing upon revocation was life imprisonment. 2 As
a result, his 262-month sentence was not above the applicable guideline range and
we therefore reject Thomas’s second argument that the district court failed to
justify an above-guideline sentence.
Third, although more detailed findings would have been preferable, the
revocation hearing transcript shows the district court considered the § 3553(a)
factors in making its sentence determination. The district court announced its
sentencing decision “pursuant to the Sentencing Reform Act and all amendments,”
of which § 3553(a) is a part. See Sentencing Reform Act of 1984, Pub. L. No. 98-
473, tit. II, ch. II, sec. 212(a), 18 U.S.C. § 3553(a), 98 Stat. 1837, 1989–90; see
also United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (holding district
court is not required “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”). The district
court also explained that its sentence determination was based upon Thomas’s
continued conduct selling illegal drugs after his previous sentence. These findings
reflect the district court’s consideration of the history and characteristics of the
2
The revocation hearing is somewhat unclear as to what the district court considered to be the
guideline range for revocation. Just before announcing Thomas’s sentence, the district court
identified the original guideline range as 262- to 327-months imprisonment. However, Thomas
and the court also acknowledged at the start of the short hearing that Thomas “face[d] up to life
imprisonment.” The probation officer’s report prepared prior to the revocation hearing also
identified the possible revocation sentence as life imprisonment.
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defendant, 18 U.S.C. § 3553(a)(1), and the need to promote respect for the law and
afford adequate deterrence to criminal conduct, id. § 3553(a)(2)(A)–(B). Beyond
that, the district court’s consideration of Thomas’s initial 262- to 327-month
guideline range—as calculated before the mandatory minimum life sentence
required by his prior convictions—shows the court’s consideration of the kinds of
sentences and the sentencing range for the applicable category of offense
committed. Id. § 3553(a)(4).
Because we reject Thomas’s arguments and find no other error under the
Gall factors, we find the sentence was procedurally reasonable.
B.
We also conclude that Thomas’s sentence is substantively reasonable. The
substantive reasonableness of a sentence is determined in light of the totality of the
circumstances, and we will not vacate a sentence as substantively unreasonable
unless we are left with the “definite and firm conviction” that the district court
clearly erred in weighing the § 3553(a) factors and imposed a sentence outside the
range of reasonable sentences. United States v. Turner, 626 F.3d 566, 571 n.2, 573
(11th Cir. 2010) (per curiam).
Thomas’s argument that his sentence is substantively unreasonable hinges
significantly on his mistaken claim that his 262-month sentence was an upward
departure from his guideline range. But as we have explained, his guideline range
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was life imprisonment, and he was sentenced well below that range. As a result,
Thomas’s remaining arguments, concerning his lack of previous probation
violations and extensive cooperation with the government, do not leave us with the
definite and firm conviction that the district court erred.
III.
Because the district court did not abuse its discretion when it sentenced
Thomas, we AFFIRM.
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