United States v. Byron Javonne DeLoatch

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14097
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-00003-LGW-RSB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON JAVONNE DELOATCH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
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(May 12, 2016)
Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
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In 2011, Byron Deloatch, having pled guilty to one count of mail fraud, 18
U.S.C. § 1341, and two counts of bank fraud, 18 U.S.C. § 1344(1) and (2), in the
Eastern District of North Carolina, was sentenced to concurrent prison terms for 30
months followed by a like term of supervised release. Following his release from
prison, the supervision of his behavior on supervised release was transferred to the
Southern District of Georgia.
In June 2015, the district court, granting Deloatch’s probation officer’s
petition, issued a warrant for his arrest based on four violations of his supervised
release: (1) committing the offense of false statements, in violation of 18 U.S.C. §
1001, by failing to report business-related activities and income on monthly
supervision reports, a 2015 financial statement, and his 2014 income tax return; (2)
committing the offense of wire fraud, in violation of 18 U.S.C. § 1343, and theft by
deception, in violation of Ga. Code Ann. § 16-8-3, by making false representations
in obtaining seasonings and spices on credit from Zenobia Company, a wholesaler
doing business as My Spice Sage and failing to make payment toward the debt; (3)
incurring new credit charges or opening additional lines of credit without the
approval of the probation office; and (4) leaving the judicial district without the
permission of the court or probation officer. Regarding violation (2), the petition
alleged that Deloatch had falsely represented to Zenobia that he was affiliated with
celebrity chef Curtis Stone, and that he owned a restaurant and catering business
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which required exotic spices. The probation officer contended that based on these
representations, Zenobia agreed to sell and ship Deloatch seasonings and spices on
credit. The probation officer recommended that Deloatch’s supervised release be
revoked.
At the revocation hearing that followed, Deloatch admitted violations (3)
and (4), but denied violations (1) and (2). The district court revoked his supervised
release and sentenced him to prison for 24 months followed by supervised release
of 24 months. He appeals the court’s decision, arguing that the court erred in
finding that he violated the terms of his supervised release by committing the crime
of theft by deception in violation of Ga. Code Ann. § 16-8-3.
We review a district court’s revocation of supervised release for an abuse of
discretion. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). “A
district court’s finding of fact made at a revocation hearing is binding unless
clearly erroneous.” United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993)
(quotation omitted).
A district court may “revoke a term of supervised release . . . if the court . . .
finds by a preponderance of the evidence that the defendant violated a condition of
supervised release . . . .” 18 U.S.C. § 3583(e)(3). Where the district court’s
decision to revoke a defendant’s supervised release is adequately supported by one
alleged violation, any possible error in the consideration of other allegations is
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harmless. See United States v. Brown, 656 F.2d 1204, 1207 (5th Cir. 1981).1 An
error is harmless if it “had no substantial influence on the outcome and sufficient
evidence uninfected by error supports the decision.” Rivers v. United States, 777
F.3d 1306, 1316 (11th Cir.), cert. denied, 136 S. Ct. 267 (2015) (alterations
omitted) (quotation omitted); see also Fed.R.Crim.P. 52(a) (defining “harmless
error” as “[a]ny error, defect, irregularity, or variance that does not affect
substantial rights”). An error is not harmless if “there is a reasonable likelihood
that [it] affected the defendant’s substantial rights.” Rivers, 777 F.3d at 1316
(quotation omitted).
The United States Sentencing Guidelines provide three grades of probation
and supervised release violations: (1) Grade A violations include felony conduct
that constitutes a crime of violence, controlled substance offense, certain firearms
offenses, and any other offense punishable by more than 20 years’ imprisonment;
(2) Grade B violations include felony conduct not covered under Grade A; and
(3) Grade C violations include misdemeanor conduct and violations of any other
condition of supervision. U.S.S.G. § 7B1.1(a). Where there is more than one
violation, the ultimate grade is determined by the violation having the most serious
grade. Id. § 7B1.1(b). Upon a finding of a Grade A or B violation, the district
1
Eleventh Circuit precedent includes the decisions of the former U.S. Court of Appeals for the
Fifth Circuit handed down prior to October 1, 1981, the effective date of the division of the Fifth
Judicial Circuit into the current Fifth Judicial Circuit and the Eleventh Judicial Circuit. See
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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court is required to revoke the defendant’s supervised release. Id. § 7B1.3(a)(1).
Upon a finding of a Grade C violation, the court may either revoke the defendant’s
supervised release, or extend the term of, or modify the conditions of, supervised
release. Id. § 7B1.3(a)(2). Section 7B1.4 provides the applicable guideline range
for each grade as it corresponds to the defendant’s criminal history category. See
id. § 7B1.4.
Under Georgia law, “[a] person commits the offense of theft by deception
when he obtains property by any deceitful means or artful practice with the
intention of depriving the owner of the property.” Ga. Code Ann. § 16-8-3(a). A
person deceives if, inter alia, he “creates or confirms another’s impression of an
existing fact or past event which is false and which the accused knows or believes
to be false.” Id. § 16-8-3(b)(1). The Georgia Court of Appeals has determined that
“the gravamen of theft by deception lies in obtaining the property of another by
intentionally creating a false impression as to an existing fact or past event,” and
that “[c]reating a false impression as to a future event . . . by a promise of future
payment, is not sufficient.” Ellerbee v. State, 256 Ga. App. 848, 851 (2002)
(quotation omitted). It determined that:
[t]he reason for the rule [regarding existing or past events] is that if
the party to whom the representations was made chose to rely upon
the promise as to a future contingency, he is not deceived by deceitful
means or artful practice, but his loss results from his absolute
confidence in the party making the promise.
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Id. at 853 (alterations in original) (quotation omitted). It held that “any promises,
reassurances, or representations” made by the defendant that he would make good
on his checks, “could not as a matter of law constitute theft by deception” because
“[a] promise of future performance cannot serve as the basis of a theft by deception
prosecution.” Id.
The district court’s finding that Deloatch committed theft by deception
under § 16-8-3, arguably was not supported even by a preponderance of the
evidence because the government failed to introduce any evidence to show that
Deloatch created a false impression as to any existing fact or past event in
obtaining the merchandise from Zenobia. Nonetheless, the court’s error was
harmless since its decision to revoke Deloatch’s supervised release was premised
on three other violations, any one of which could independently serve as a basis to
revoke Deloatch’s supervised release. See Brown, 656 F.2d at 1207. Deloatch
admitted to committing violations (3) and (4), and the court found that he had
committed violation (1), which he does not challenge on appeal. Thus, despite any
error in the court’s finding that he had committed the theft by deception, the court
had three other violations on which to revoke his supervised release, any one of
which could properly serve as a basis for revocation, and one of which actually
required the court to do so.
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Deloatch’s argument regarding ambiguity in his sentence is without merit.
Violation (1), alone, resulted in a Guidelines sentence range of 21-27 months’
imprisonment, and the court sentenced him within the middle of that range.
Additionally, the court stated that despite the outcome on violation (2), it would
have imposed the same sentence based on violations (1), (3), and (4). Thus,
contrary to Deloatch’s assertions, there is no indication that his sentence would
have been lower, absent a finding that he committed the theft by deception offense.
Lastly, although he contends that the court’s error in finding that he committed the
crime of theft by deception affects his substantial rights because it would “likely”
have a bearing on Zenobia’s civil case against him, he has not cited any case law or
provided any legal support for that contention.
The district court’s decision revoking Deloatch’s supervise release is
AFFIRMED.
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