United States v. Roy Shane Jackson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 11, 2008
THOMAS K. KAHN
No. 07-13105
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 01-00077-CR-J-24HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY SHANE JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 11, 2008)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Roy Jackson appeals his 18-month term of imprisonment imposed
by the district court based upon its finding that Jackson violated his supervised
release for drug-related conduct. This was the second revocation of Jackson’s
supervised release.
On appeal, Jackson argues that the district court’s sentence was excessive
and unreasonable. Specifically, he contends that the district court abused its
discretion in imposing an upward variance because it based the variance upon a
ground already taken into consideration by the guidelines, namely, his past
supervised release violations and criminal history. He argues that the district court
substituted its own judgment for that of the Sentencing Commission and Congress
in determining the proper weight to be afforded to his criminal history. Further, he
argues that the district court did not find that his criminal history was
underrepresented, and, therefore, it was required to follow the criminal history
range provided by the Guidelines. In addition, Jackson argues that if we determine
that his counsel failed to preserve this issue for appellate review, then he received
ineffective assistance of counsel because he would win on appeal if the issue had
been preserved.
After United States v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738, 767
(2005), we review a federal sentence imposed upon revocation of supervised
release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07
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(11th Cir. 2006). The party challenging the sentence bears the burden of
establishing that the sentence was unreasonable. United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). The Supreme Court in Gall v. United States, clarified
that “[r]egardless of whether the sentence imposed is inside or outside the
Guidelines range, the appellate court must review the sentence under an
abuse-of-discretion standard.” __ U.S. __, __, 128 S. Ct. 586, 597, 169 L. Ed. 2d
445 (2007) (in the context of an initial sentencing appeal). With respect to
sentences imposed outside the applicable guideline range, the district court must
“ensure that the justification is sufficiently compelling to support the degree of the
variance,” but extraordinary circumstances are not required to justify such a
sentence. Id. at 595, 597. The appellate court “may consider the extent of the
deviation, but must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597.
Similarly, we review for abuse of discretion a district court’s decision to exceed the
sentencing range in Chapter 7 of the Sentencing Guidelines. United States v. Silva,
443 F.3d 795, 798 (11th Cir. 2006).
“Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of
supervised release, revoke the term of supervised release and impose a term of
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imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”
Sweeting, 437 F.3d at 1107; see 18 U.S.C. § 3583(e)(3). Under § 3583(e), the
relevant § 3553(a) factors are (1) the nature and circumstances of the offense and
the history and characteristics of the defendant, (2) the need for deterrence, (3) the
need to protect the public, (4) the need to provide the defendant with educational or
vocational training or medical care, (5) the Sentencing Guidelines range and
pertinent policy statements of the Sentencing Commission, (6) the need to avoid
unwanted sentencing disparities, and (7) the need to provide restitution to victims.
18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7); see 18 U.S.C. § 3583(e).
We have held that because the Chapter 7 Guidelines are advisory, “it is
enough that there is some indication the district court was aware of and considered
them.” United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). The
applicable guideline range for committing a Grade C violation of supervised
release is 3-9 months’ imprisonment for defendants with a category I criminal
history. U.S.S.G. § 7B1.4(a). Under § 3583(e)(3), 24 months’ imprisonment is the
statutory maximum sentence for a Grade C violation giving rise to the revocation
of supervised release. 18 U.S.C. § 3583(e)(3). A Grade C violation is “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
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supervision.” U.S.S.G. § 7B1.1(a)(3).
After reviewing the record and reading the parties’ briefs, we conclude that
Jackson’s argument is without merit because his challenge relies upon the incorrect
assertion that the district court varied upward from the guidelines range based upon
a factor that was accounted for in the guidelines calculation. Jackson’s guidelines
range was based upon his initial criminal history category of I and the nature of the
instant violation. Accordingly, because the record clearly demonstrates that the
district court did not abuse its discretion in varying upward based upon Jackson’s
continued inability to abide by the terms of his supervised release, we affirm
Jackson’s sentence.
AFFIRMED.
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