United States v. Koretsky Magloire

USCA11 Case: 22-10439 Date Filed: 11/25/2022 Page: 1 of 18
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10439
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KORETSKY MAGLOIRE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20930-RS-1
____________________
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2 Opinion of the Court 22-10439
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Koretsky Magloire appeals the district court’s revocation of
his supervised release and the revocation issuance of a sentence of
two years’ imprisonment followed by one year of supervised
release, instead. He argues that the district court abused its
discretion in revoking his supervised release because there was
insufficient evidence to find him guilty of attempted burglary, in
denying his motion for a continuance, and in pronouncing an
allegedly procedurally and substantively unreasonable sentence
after his supervised release was revoked. After review, we affirm.
I. Background
On January 3, 2019, Magloire pleaded guilty to possession
of 15 or more unauthorized access devices, in violation of 18
U.S.C. § 1029(a)(3) (Count 1), and aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1) (Count 2). The district court
sentenced Magloire to two years’ and one day imprisonment,
followed by three years on supervised release. The conditions of
Magloire’s supervised release included prohibitions on the
commission of other crimes, possession or use of a controlled
substance, failing to comply with drug testing, and failing to work
regularly unless excused from doing so.
Magloire was released from prison and began his term of
supervised release on June 24, 2020. On July 12, 2021, the
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probation office filed a petition seeking a warrant and the
revocation of Magloire’s supervised release. The petition alleged
that Magloire violated the terms of his supervised release by
committing attempted burglary of an unoccupied structure
(Violation 1); by committing misdemeanor criminal mischief
(Violation 2); by possessing or using a controlled substance
(Violation 3); by attempting to use an adulteration device to
avoid detection of illegal drug use (Violation 4); and by failing to
follow his probation officer’s instruction to provide a completed
job search log (Violation 5). Prior to his first supervised release
revocation hearing, Magloire admitted to Violations 3 through 5.
A supervised release revocation hearing was held on
August 30, 2021. In that hearing, the government proffered, and
the district court entered into evidence, four Ring video
“snippets” of what the government argued was an attempted
burglary of an apartment by Magloire on June 27, 2021. In the
video footage, a man with a blue ski mask covering his face is
shown approaching apartment 2709 and pushing and shoving on
the door. He then tries to insert an object into the door seal in an
attempt to open the door. He then smears a liquid substance over
the Ring camera lens, which obscures the view.
The government called Officer Jose Gutierrez, who
testified as follows. On June 27, 2021, he encountered Magloire at
the apartment complex, who told Officer Gutierrez that he was at
apartment 2709 to visit a friend named Sabrina. Magloire said
that he had keys for the elevator and the apartment. However,
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Magloire did not have anything “that matched the actual key fob
for the elevator or the apartment.” Officer Gutierrez spoke to the
person Magloire claimed to be “Sabrina” on the phone, and she
said she lived in apartment 2708. But the apartment Magloire was
trying to enter was apartment 2709. Officer Gutierrez contacted
the owner of apartment 2709, who said that Sabrina was his “ex-
girlfriend” or his “ex-wife” and that he had not given her
permission to enter the apartment. Officer Gutierrez identified a
small screwdriver that was found on Magloire’s person when he
was detained.
The government also called Sergeant Shawntel Kirkland,
who testified as follows. She arrived at the apartment alongside
Officer Gutierrez. She spoke with Magloire, who admitted that
he did not live in the apartment complex, but he stated that he
had been there earlier at his friend’s apartment. He stated his
friend’s apartment number which “began with 27,” but the unit
he identified was not the unit he was seen trying to enter. The
sergeant discovered a blue ski mask in Magloire’s car that
matched the mask the suspect wore in the Ring video footage.
Magloire testified in his own defense as follows. On June
27, 2021, he went to see Sabrina at apartment 2709 “at her
request.” When he arrived, Sabrina did not answer her phone or
the apartment door. He then tried to open the apartment with
the key Sabrina had given him. He had been to the apartment
before, as Sabrina was “go[ing] out with [his] friend . . . Kamal.”
Unsuccessful, Magloire went to leave, but Sabrina called and told
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him to wait for her, so he walked back towards the apartment.
Then, an officer stopped Magloire and asked him if he lived there.
After Magloire told the officer that he did not live there but that
he was on the phone with the person that lived there, the officer
told him that he was being detained. He told the officer that he
was “doing nothing wrong.”
Magloire admitted that he was the individual in the Ring
camera footage, but he maintained that he did not try to break
into the apartment, that the screwdriver was not in his pocket but
was in a “Mercedes pouch” that he had, and that if given
additional time he could get Kamal and Sabrina to come to court
to testify in his favor. When asked why he was wearing a mask in
the video footage, Magloire testified that he bought it from a 7-
Eleven, but that he “didn’t have it on.” 1 Magloire stated that his
key did not work because he did not know that Kamal had
changed the lock on the apartment door after losing his keys. He
further claimed that he knocked on the door, but when no one
answered, he “tr[ied] to push it so [Sabrina] could hear” him.2 He
stated that it “makes no sense” for him to try and burglarize his
friend, especially because he was on “probation.”
On cross-examination, Magloire testified that he learned of
the date of the supervised release revocation hearing “[l]ast
1 This testimony is contradicted by the video footage.
2 On cross-examination, Magloire admitted that the Ring video footage did
not show him knocking on the door.
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week.” Yet, he did not contact Sabrina or Kamal about testifying
on his behalf. When asked separately if the Ring footage showed
him putting a substance on the camera and whether the
screwdriver was his, Magloire responded, “[o]kay,” to each
question.
Following Magloire’s testimony, his counsel asked for a
continuance so that he could investigate the case further, and the
district court denied the motion.
The district court made several findings. It stated that
Magloire admitted that he was in the video and that he was
clearly wearing a “total mask,” not a mask for COVID-19
purposes. 3 It found credible Sergeant Kirkland’s testimony about
where the mask was found. It found that Magloire was
“obviously” pushing into apartment 2709 and “using the
screwdriver to get in,” so there was “no question” Magloire
attempted to burglarize the apartment. It stated that, whether or
not Magloire knew Sabrina and whether or not he attempted to
burglarize the wrong apartment, “it is clear that the person did
not consent” to the attempted burglary. The court further stated
that one video “clearly shows that Mr. Magloire threw a
substance, some sort of substance to obstruct the camera, which
also shows intent.” Accordingly, the district court determined that
3 Magloire does not dispute the district court’s characterization of the Ring
camera footage.
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Magloire was guilty of attempted burglary (Violation 1), but not
guilty of criminal mischief (Violation 2).
Based on the violations and Magloire’s criminal history
category of ⅠⅠⅠ, the guidelines range was 8 to 14 months’
imprisonment. The government deferred to the probation
officer’s recommendation of 12 months’ imprisonment followed
by 2 years of supervised release. Magloire requested a sentence at
the low end of his guidelines range with no additional term of
supervised release. Magloire again denied that he was trying to
break into the apartment, although he acknowledged that the
video “look[ed] bad.”
Regarding the 18. U.S.C. § 3553(a) sentencing factors, the
district court stated that it was “very concerned” by Magloire’s
denial. It found that he “ha[d] obstructed justice by plain lying,”
as the video left “no question” that he intended to break into the
apartment, that he used a mask and screwdriver to do so, and that
he continued to deny those facts despite admitting that the video
looked bad. It stated that it “ha[d] to protect the public[,] . . .
including the individuals in that residence of the apartment
complex” and emphasized that “[e]very man’s home is his castle.”
For those reasons and “because of no acknowledgement of
wrongdoing,” the district court revoked Magloire’s supervised
release, applied an upward variance, and sentenced him to three
years’ imprisonment.
Magloire asked if he could “make the person show up in
court,” but the district court explained that it denied his
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continuance because the video was “so clear” that calling his
friend would not “do any good.” Magloire objected to the
upward variance. The probation officer then notified the court
that the statutory maximum sentence was two years’
imprisonment, not three, so the district court vacated its oral
sentence, instructed the parties to file memorandums on the
sentencing issue, and scheduled a new hearing.
At the second hearing, Magloire’s counsel urged the court
to show mercy and consider the fact that Magloire was only 25
years’ old, had two minor children to support and another baby
on the way, and had a mother in Haiti who he also supported
financially. Magloire personally apologized to the court for being
“selfish” and “getting in trouble,” and stated that he “wanted to
do better.” He explained that at the first hearing, he had been in
denial about the fact that he had violated supervised release, but
he had time to think about it, and he understood that there
“[a]in’t no way around being wrong.”
The district court reiterated its concern regarding the right
for people not to have their homes broken into, and emphasized
that Magloire refused to admit wrongdoing for the violation at
the first hearing and instead “came up with a fancy story.” The
district court also stated that it believed Magloire was a “smooth
talker” who did not accept responsibility, as evidenced by his lies
under oath that were contradicted by the Ring footage. The
district court also highlighted Magloire’s criminal history and
prior supervised release violations. The court once again stated
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that it was “taking into consideration” § 3553(a) and, because of
the need to “protect the public,” it needed to be “harsh on this
violation.” The district court then revoked Magloire’s supervised
release and sentenced him to the statutory maximum of two
years’ imprisonment and one year of supervised release.
II. Discussion
A. Whether the district court abused its discretion in
revoking Magloire’s supervised release
Magloire argues that the district court abused its discretion
in revoking his supervised release based on the attempted
burglary violation. Specifically, he argues that there was
insufficient evidence to show by a preponderance of the evidence
that (1) he intended to commit a crime once inside the apartment,
and (2) that no one gave him consent to enter the apartment.
We review a district court’s revocation of supervised
release for abuse of discretion, United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014), and its findings of fact for
clear error, United States v. Almand, 992 F.2d 316, 318 (11th Cir.
1993).
A district court may, after considering certain § 3553(a)
factors, revoke a defendant’s term of supervised release and require
the defendant to serve in prison all or part of the term of supervised
release authorized by statute without credit for time previously
served on supervised release when it finds by a preponderance of
the evidence that the defendant violated a condition of his
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supervised release. United States v. Hofierka, 83 F.3d 357, 362
(11th Cir. 1996); 18 U.S.C. § 3583(e)(3). “A preponderance of the
evidence is evidence which is more convincing than the evidence
offered in opposition to it.” United States v. Watkins, 10 F.4th
1179, 1184 (11th Cir. 2021) (quotations omitted). This standard
only requires “the trier of fact to believe that the existence of a fact
is more probable than its nonexistence.” Id. (quotations omitted).
In other words, the government must persuade the trier of fact that
the defendant more likely than not committed a violation of the
terms of his supervised release. Id. at 1185.
Importantly, a mandatory condition of any federal
defendant’s supervised release is that the defendant must not
commit another crime while on release. 18 U.S.C. § 3583(d).
Determining whether a defendant violated a condition of his
supervised release depends on his actual conduct, not whether he
was charged with, or convicted of, a crime. U.S.S.G. § 7B1.1 (cmt.)
n.1; see also Johnson v. United States, 529 U.S. 694, 700 (2000)
(explaining that for purposes of supervised release, “the violative
conduct need not be criminal and need only be found by a judge
under a preponderance of the evidence standard, not by a jury
beyond a reasonable doubt”).
Under Florida law, attempted burglary involves “(1) the
intent to commit burglary, and (2) some overt act directed toward
its commission.” Jones v. State, 608 So. 2d 797, 798 (Fla. 1992).
Burglary itself requires that the defendant (1) entered or remained
(2) in a dwelling, a structure, or a conveyance (3) with the intent to
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commit a crime therein, unless the structure was open to the public
or the defendant was invited to enter or remain. Drew v. State, 773
So. 2d 46, 48 (Fla. 2000). “[P]roof of the attempt to enter such
structure or conveyance at any time stealthily and without the
consent of the owner or occupant thereof is prima facie evidence
of attempting to enter with intent to commit an offense.” Fla. Stat.
§ 810.07(2). However, consent to enter the premises in question is
an affirmative defense. Hansman v. State, 679 So. 2d 1216, 1217
(Fla. 4th DCA 1996); Petrucelli v. State, 855 So. 2d 150, 154 (Fla. 2d
DCA 2003). Haugabrook v. State, 827 So. 2d 1065, 1070 (Fla. 2d
DCA 2002).
Here, the district court did not clearly err in determining
that the government showed it was more likely than not that
Magloire intended to commit a crime once he entered the
apartment. The evidence showed that he put a substance over
the neighbor’s Ring camera, attempted to enter the apartment
with a ski mask over his face, pushed against the door, and
attempted to use a screwdriver to force entry. 4 Magloire also
offered no explanation for why he was wearing a ski mask in the
middle of the summer (instead he denied that he wore it at all,
despite the Ring camera footage). Accordingly, the district court
4 Magloire contested below that the Ring video footage did not show him
attempting to shove open the door. However, since he does not make that
argument on appeal, he abandons it. See United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003) (holding that arguments not raised on appeal
are abandoned).
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did not abuse its discretion in finding that the circumstances
indicated Magloire more likely than not intended to commit a
crime once inside the apartment.
The district court also did not clearly err in determining
that the government showed it was more likely than not that no
one gave him consent to enter the apartment. While Magloire
testified that he had consent to enter the apartment, the
government proffered the Ring camera footage, which showed
Magloire pushing into the apartment door, wearing a mask, using
the screwdriver, and covering the Ring camera lens. And the
district court concluded that the video footage clearly showed
that Magloire was attempting to break into the apartment, which
undermined his consent argument. 5 Therefore, the district court
did not abuse its discretion in finding by a preponderance of the
evidence that the government rebutted his consent defense.
B. Whether the district court abused its discretion in
denying Magloire’s request for a continuance
Magloire argues that the district court abused its discretion
in denying his motion for a continuance because it precluded him
from obtaining exculpatory testimony of Sabrina or Kamal that he
had consent to enter the apartment.
5 Notably, the owner of the apartment told the responding officers that
Sabrina, who allegedly gave Magloire permission to enter the apartment, did
not have permission to enter the apartment either.
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We review a district court’s denial of a motion for
continuance for abuse of discretion. United States v. Valladares,
544 F.3d 1257, 1261 (11th Cir. 2008) Therefore, we will not
overturn the denial of a continuance “unless the denial [was]
arbitrary or unreasonable.” United States v. Davis, 854 F.3d 1276,
1294 (11th Cir. 2017) (quotations omitted) (regarding a pre-trial
continuance). In determining whether the district court abused its
discretion in denying a continuance to obtain testimony, we
consider:
(1) the diligence of the moving party in obtaining the
testimony; (2) the probability of obtaining the
testimony within a reasonable time; (3) the specificity
with which the defense was able to describe the
witness’s expected knowledge or testimony; and (4)
the nature of the proffered testimony, that is, the
degree to which such testimony was expected to be
favorable to the accused, and the unique or
cumulative nature of testimony.
United States v. Khan, 794 F.3d 1288, 1311 (11th Cir. 2015)
(quotations omitted). 6
6 We have not addressed whether these factors apply to the denial of a
continuance in a supervised release revocation proceeding, which does not
carry the same rights due to a defendant during stages of a criminal
prosecution. See United States v. Dennis, 26 F.4th 922, 927 (11th Cir. 2022)
(explaining that because the revocation of supervised release is “not a stage of
a criminal prosecution, the full panoply of rights due to a defendant in criminal
prosecutions does not apply to revocations” of supervised release. (omission
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Here, regarding the first Khan factor, Magloire did not
demonstrate diligence in attempting to contact witnesses before
the first revocation hearing. He had notice of the hearing a week
in advance and never attempted to contact any witnesses. It is
unclear whether the second Khan factor favors Magloire.
Although he claimed to be friends with Kamal and Sabrina and
stated that they would appear as witnesses if he asked, he
provided no reason why either were not present at the first
revocation hearing and it is pure speculation that he would have
been able to obtain their testimony in a reasonable time. As for
the third and fourth Khan factors, even assuming that they
testified in Magloire’s favor, Magloire’s actions in the video
footage were not consistent with someone who had consent to
enter. Rather, as the district court found, their testimony would
not have made a difference given the clear video footage which
showed Magloire’s attempt to shove and pry open the door to
apartment 2709 while wearing a ski mask over his face and then
place a substance over the Ring camera lens to obscure the image.
Thus, the district court did not abuse its discretion in denying
Magloire’s motion for a continuance.
adopted) (quotation omitted)); United States v. Frazier, 26 F.3d 110, 114 (11th
Cir. 1994) (explaining that a defendant must be afforded “certain minimal due
process requirements” during a revocation hearing). Nevertheless, because
the government asserts that these same factors apply in this case, we assume
without deciding that they do.
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C. Whether Magloire’s sentence is procedurally and
substantively reasonable
Magloire argues that his sentence is procedurally and
substantively unreasonable because the district court only
considered one of the § 3553(a) factors in its decision.
We review a sentence’s reasonableness for abuse of
discretion, regardless of whether that sentence falls inside or
outside of the guidelines range. Gall v. United States, 552 U.S. 38,
51 (2007); see also Vandergrift, 754 F.3d at 1307 (applying abuse of
discretion standard to a district court’s revocation of supervised
release). “The party challenging a sentence has the burden of
showing that the sentence is unreasonable in light of the entire
record, the § 3553(a) factors, and the substantial deference afforded
sentencing courts.” United States v. Rosales-Bruno, 789 F.3d 1249,
1256 (11th Cir. 2015).
When imposing a sentence upon revocation of supervised
release, the district court must consider certain § 3553(a) factors,
including: the nature and circumstances of the offense; the
defendant’s history and characteristics; the sentences available,
along with the relevant sentencing guidelines range, and any
pertinent policy statements; the need to deter criminal conduct,
protect the public, provide the defendant with training or other
correctional treatment; and the need to avoid sentencing disparities
between similarly situated defendants, and to provide for
restitution. 18 U.S.C. §§ 3583(e)(3), 3553(a)(1), (a)(2)(B)-(D), (a)(4)-
(7). The district court is not required to discuss each of the § 3553
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factors or explicitly state that it considered each of the factors.
United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013).
Rather, the district court’s acknowledgment that it considered the
§ 3553(a) factors is sufficient. United States v. Amedeo, 487 F.3d
823, 832 (11th Cir. 2007).
In reviewing the reasonableness of a sentence, we first
consider whether the district court committed a procedural error,
such as failing to calculate or improperly calculating the guidelines
range. Gall, 552 U.S. at 51. We also ensure that the district court
treated the guidelines as advisory, considered the § 3553(a) factors,
did not select a sentence based on clearly erroneous facts, and
adequately explained the sentence. Id. A district court that decides
to vary upward from the guidelines range “must consider the
extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance.”
United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008)
(quotations omitted). A district court is “free to consider any
information relevant to [a defendant’s] background, character, and
conduct in imposing an upward variance.” United States v. Tome,
611 F.3d 1371, 1379 (11th Cir. 2010) (quotations omitted). “[W]e
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 1378.
A sentence is substantively unreasonable only when the
district court “(1) fails to afford consideration to relevant factors
that were due significant weight, (2) gives significant weight to an
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improper or irrelevant factor, or (3) commits a clear error of
judgment in considering the proper factors.” Rosales-Bruno,
789 F.3d at 1256 (quotation marks omitted). We “commit[] to the
sound discretion of the district court the weight to be accorded to
each § 3553(a) factor,” United States v. Perkins, 787 F.3d 1329, 1342
(11th Cir. 2015), and the district court is “permitted to attach great
weight to one factor over others,” United States v. Riley, 995 F.3d
1272, 1279 (11th Cir. 2021) (quotations omitted).
We will vacate a district court’s 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 is outside the range of
reasonable sentences dictated by the facts of the case.” United
States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020) (quotations
omitted).
Here, Magloire’s sentence is not procedurally
unreasonable. Magloire’s contention that the district court only
considered one of the § 3553(a) factors—the need to protect the
public—is undermined by the record. The record establishes that
the district court considered all of the relevant § 3553(a) factors,
including the nature and circumstances of the offense, Magloire’s
personal history and characteristics, the guidelines range, and the
need to deter future criminal conduct by Magloire and to protect
the public. Furthermore, it sufficiently explained its decision for
the upward variance—highlighting Magloire’s criminal history,
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past violations of supervised release, and the need to protect the
public.
Finally, Magloire’s argument that his sentence is not
substantively unreasonable for the same reason—because the
district court only relied on a single § 3553(a) factor—is not
supported by the record. As discussed above, contrary to
Magloire’s assertion, the district court did not rely on the public
safety § 3553(a) factor to the exclusion of all other factors, as it
specifically referred to the facts of the underlying offense and
Magloire’s personal circumstances and statements. Although the
district court may have weighed the public safety factor more
heavily, this does not render Magloire’s sentence substantively
unreasonable. See Riley, 995 F.3d at 1279. Accordingly, we
conclude that Magloire’s sentence is procedurally and
substantively reasonable.
AFFIRMED.