United States v. Douglas Leroy Beatty

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 6, 2007
No. 06-16006 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00099-CR-1-HL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS LEROY BEATTY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 6, 2007)
Before TJOFLAT, ANDERSON, and BIRCH, Circuit Judges.
PER CURIAM:
Douglas Leroy Beatty pled guilty to armed robbery and possession of a
firearm in furtherance of a crime of violence. When he committed those offenses,
he was serving a term of supervised release after a conviction for conspiracy to
possess with intent to distribute methamphetamine. At the sentencing hearing for
the new offenses, his supervised release was revoked and he was sentenced to an
additional 60 months in prison. On appeal, Beatty challenges only this 60-month
sentence, arguing that the district court did not elicit objections as required by
United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), and did not consider the
sentencing range established by the Sentencing Guidelines before imposing the 60-
month sentence.1
Under the procedure established in Jones, “the district court must give the
parties an opportunity to object to the court’s ultimate findings of fact, conclusions
of law, and the manner in which the sentence is pronounced, and must elicit a full
articulation of the grounds upon which any objection is based.” United States v.
Campbell, 473 F.3d 1345, 1347 (11th Cir. 2007). The purpose of the rule is
twofold. “First, an objection, if well made, may permit the court to cure an error
on the spot — perhaps making an appeal unnecessary. Second, by eliciting the
parties’ objections, the trial judge narrows, and sharpens, the issues presentable on
1
Beatty’s counsel initially filed a motion to withdraw on appeal supported by a brief
prepared pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). We denied the
motion to withdraw and directed counsel to file a merits brief addressing these two issues.
2
appeal.” United States v. Snyder, 941 F.2d 1427, 1428 (11th Cir. 1991). When the
district court fails to elicit articulated objections, we ordinarily “vacate the sentence
and remand to the district court to give the parties an opportunity to present their
objections.” Campbell, 473 F.3d at 1347. We recently held in Campbell that the
Jones procedure must be followed in supervised release revocation proceedings.
Id. at 1348.
The district court did not follow the Jones procedure in this case. After
sentencing Beatty, informing him of his appeal options, and asking him whether he
understood the sentence, the district court simply asked, “Anything else?” We
have noted that “when the district court merely asks if there is ‘anything further’ or
‘anything else?’ and neither party responds with objections, then the court has
failed to elicit fully articulated objections and has therefore violated Jones.”
Campbell, 473 F.3d at 1348. The exchange in Campbell, which we held violated
Jones, was virtually identical to the exchange in the instant case. See id. As a
result, we must conclude that the district court did not elicit articulated objections
as required by Jones. See also United States v. Holloway, 971 F.2d 675, 681 (11th
Cir. 1992) (finding Jones violation where, after sentencing the defendant, the court
only asked if there was “anything else”).
Despite the Jones violation, a remand would not be necessary if the record
3
on appeal were sufficient to enable appellate review of Beatty’s claim. See
Campbell, 473 F.3d at 1347; United States v. Cruz, 946 F.2d 122, 124 n.1 (11th
Cir. 1991). Beatty’s claim is that the district court did not consider the Guidelines
range when determining the sentence he would receive upon the revocation of his
supervised release.2 In a supervised release revocation hearing, the record must
show that the district court at least “consider[ed] the sentencing range established
under the Guidelines.” Campbell, 473 F.3d at 1349. Because the Guidelines have
always been advisory with respect to sentences imposed upon revocation of
supervised release, “it is sufficient that there be some indication that the district
court was aware of and considered the Guidelines.” Id. (punctuation and citation
omitted).
In Campbell there was no indication that the district court considered the
Guidelines range: the district court never even said the word “Guidelines” during
the revocation hearing. See Campbell, 473 F.3d at 1349. In this case, the district
court said the word “Guidelines” during the hearing. Beatty was also being
sentenced on the armed robbery and possession of a firearm convictions. The court
expressly stated the Guidelines range for each of these convictions, and then gave a
within-Guidelines sentence for each.
2
Beatty did not make this argument in the district court, but because of the Jones
violation, we overlook the failure to object. See Campbell, 473 F.3d at 1348.
4
There is no indication, however, that the district court considered the
Guidelines range for the revocation of supervised release. The Court simply said,
“I also find that you violated the terms and conditions of supervised release . . . and
sentence you to 60 months imprisonment to be served consecutively to the
sentence imposed” for the other convictions. Sixty months was within the
Guidelines range of 51 to 60 months (51 to 63 months based on offense level and
criminal history, but with a 60-month statutory maximum). But the district court
never mentioned the Guidelines range with respect to the revocation of supervised
release.
From the 60-month sentence alone, it is not possible to tell whether the court
considered the Guidelines range. The court may have considered the Guidelines
range and then chosen the top end. Or it may not have considered the Guidelines
range, and simply sentenced Beatty to the statutory maximum.3 Because we cannot
discern from the record whether the district court considered the Guidelines range
in revoking Beatty’s supervised release, and because the district court did not elicit
objections as required by Jones, we must vacate Beatty’s 60-month sentence and
remand for resentencing on the revocation of supervised release. See Campbell,
3
The fact that the district court mentioned the Guidelines range with respect to the two
convictions but not with respect to the revocation of supervised release tends to suggest that it
did not consider the Guidelines range.
5
473 F.3d at 1349.
VACATED AND REMANDED.
6