United States v. Jackson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13019 MARCH 14, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 5:07-cr-00024-HL-CWH-1
UNITED STATES OF AMERICA,
llllllllllllllllllll Plaintiff - Appellee,
versus
CHRISTOPHER JACKSON,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(March 14, 2011)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
The prior opinion of the panel is vacated and the following opinion is issued
in its place:
Christopher Jackson pleaded guilty to violating 18 U.S.C. §§ 371, 545, and
2320(a) and was sentenced to 30 months’ imprisonment to be followed by 3 years
of supervised release. After he was released from prison, Jackson violated several
conditions of his supervised release. Jackson failed to comply with the orders of
his probation officer, admitted to smoking marijuana, and made threats to an
official at the Georgia Department of Revenue and his probation officer. Based on
these violations, the probation office petitioned the district court to revoke
Jackson’s supervised release. At the revocation hearing Jackson stipulated to the
violations and explained that the more serious violations–his threats against state
and federal officers–were the result of his anger management problems. The
district court revoked Jackson’s supervised release and remanded him to prison for
a term of 21 months. Jackson appeals from the revocation and argues that the
district court erred by not verifying that he and his counsel had read and discussed
the probation office’s revocation report and that his term of imprisonment is
substantively unreasonable.
I.
We review a term of imprisonment imposed following revocation for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.
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2006). We first look to whether the district court committed any significant
procedural error. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
We then examine the substantive reasonableness of the term of imprisonment. Id.II.
Jackson argues that his “sentence” is procedurally unreasonable because the
district court erred by not verifying that he and his counsel had read and discussed
the probation office’s revocation report.1 The crux of Jackson’s argument is this:
the Federal Rule of Criminal Procedure that governs an initial sentencing also
applies to supervised-release-revocation hearings. We disagree.
Rule 32, which governs sentencing procedure, requires that the probation
office create a presentence report and, at sentencing, a district court must verify
that the defendant and his counsel have read and discussed that report. Fed. R.
Crim. P. 32. Rule 32.1—the rule of criminal procedure that governs revocation
hearings—does not require that the district court verify that the defendant and his
counsel review the probation officer’s revocation report. Indeed, it does not even
require that the probation office produce such a report. Fed. R. Crim. P. 32.1
1
Because Jackson raises this argument for the first time on appeal, we review for plain
error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). To prevail, Jackson
must establish (1) that there was error; (2) that it was plain; and (2) that it affected his substantial
rights. Id.3
It is clear from the language of Rule 32 that it does not apply to revocation
hearings. When a defendant is imprisoned upon revocation of supervised release,
he is still serving part of his original sentence. Cf. United States v. Woods,
127 F.3d 990, 993 (11th Cir. 1997) (holding that revocation of probation is part of
defendant’s original sentence). What Rule 32 requires is that, at sentencing, the
district judge verify that the defendant and his lawyer have reviewed and discussed
the presentence report. Because supervised release is part of a defendant’s
original sentence, a revocation hearing occurs after sentencing. Furthermore,
because a revocation hearing occurs after sentencing, a revocation report cannot
be a presentence report. Rule 32(i)(1)(A) does not apply to revocation hearings.
And we can find no support for transplanting Rule 32’s requirements to revocation
hearings held under Rule 32.1. Accordingly, the district court did not err.
III.
Jackson also argues that the term of imprisonment imposed by the court
following revocation was substantively unreasonable. Whether a term of
imprisonment is substantively unreasonable is essentially a question whether the
district court abused its discretion. Pugh, 515 F.3d at 1179. Although we do not
presume that a term of imprisonment, like this one, that is within the properly
calculated guidelines range is reasonable, we ordinarily expect that is the case.
4
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). But even if a term of
imprisonment is within the guidelines, it must also, considering the totality of the
circumstances, achieve the purposes of 18 U.S.C. § 3553(a).2 Gall v. United
States, 552 U.S. 38, 51 (2007); Pugh, 515 F.3d at 1191. The party challenging a
sentence bears the burden of establishing its unreasonableness. Pugh, 515 F.3d at
1189.
Jackson argues that the sentence is unreasonable because it fails to account
for or to address the root of his problems—his inability to control his anger.
Jackson suggests that a more lenient sentence would help alleviate his anger
management problem or that, in any case, the district court should have imposed a
condition that he receive anger management treatment.
At the revocation hearing, the district judge considered and addressed
Jackson’s arguments about his anger management problem. Jackson does not
2
The purposes of § 3553(a) are:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (3) the need
for deterrence; (4) the need to protect the public; (5) the need to provide the
defendant with educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy
statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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offer any explanation how a lesser term of imprisonment would address his anger
management problem. And he has not established that the district court’s
revocation order has denied him the ability to participate in anger management
programs during his incarceration. Accordingly, we conclude that the district
court did not abuse its discretion in revoking Jackson’s supervised release and
imposing a 21-month term of imprisonment.
Because we conclude that the district court committed no procedural error
and that it did not abuse its discretion, we affirm.
AFFIRMED.
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