United States v. Markus D. Bell

USCA11 Case: 22-12283 Document: 20-1 Date Filed: 03/21/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12283
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARKUS D. BELL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:14-cr-00003-TFM-C-1
____________________
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2 Opinion of the Court 22-12283
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
After appellant Markus D. Bell admitted that he violated the
conditions of his supervised release, the district court revoked his
supervised release and imposed a sentence of 24 months’ imprison-
ment, which was above the applicable range under the Sentencing
Guidelines. On appeal, Bell argues that his sentence was procedur-
ally unreasonable because that the district court failed to explain
why it imposed an upward variance. Because we agree with Bell
that the district court failed to adequately explain its decision to
impose an upward variance, we vacate and remand.
I.
In 2018, Bell finished serving a 51-month sentence for a fire-
arms offense. Upon his release, Bell began to serve a three-year
term of supervised release. On three separate occasions, the district
court found that Bell had violated the terms of his supervised re-
lease and revoked his supervised release. Each time, the district
court sentenced Bell to a term of incarceration (each term was be-
tween six and eight months) followed by a term of supervised re-
lease.
In April 2022, Bell was released from custody and began to
serve his most recent term of supervised release. One condition of
the supervised release was that Bell complete it at a residential
reentry center. On the day of his release, Bell was supposed to
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22-12283 Opinion of the Court 3
report to a residential reentry center in Mississippi. But Bell never
showed up at the center and failed to respond to his probation of-
ficer’s multiple attempts to make contact. After Bell had been miss-
ing for approximately two weeks, the probation officer filed a peti-
tion to revoke Bell’s supervised release. Bell was subsequently ar-
rested and admitted that he had violated the terms of his supervised
release.
In revocation proceedings, the probation officer made a con-
fidential recommendation to the court about an appropriate sen-
tence. The probation officer calculated Bell’s Sentencing Guide-
lines range as 8–14 months’ imprisonment. The probation officer
recommended that the district court impose a sentence of 24
months with no period of supervised release to follow. He believed
that this sentence was warranted because Bell showed “little re-
spect . . . for rules and authority.” Doc. 72 at 7. 1 Based on his “lim-
ited interaction[s] with Bell,” the probation officer determined that
Bell had “no intention of following the instructions and orders” of
the court. Id.
At the revocation hearing, the district court found that Bell
had violated the terms of his supervision and revoked his super-
vised release. At the hearing, the court heard from the parties about
an appropriate sentence. Bell asked the court to impose a sentence
of time served followed by six months of supervised release in
which he would wear an ankle monitor. The government
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 22-12283
requested that the court impose a sentence of 24 months. At no
point during the revocation hearing did the parties or the court
mention the applicable guidelines range.
After hearing from the parties, the court sentenced Bell to
24 months’ imprisonment with no term of supervised release to
follow. When the district court pronounced the sentence, the court
did not mention any of the factors set forth at 18 U.S.C. § 3553(a) 2
or expressly acknowledge that it was imposing a sentence outside
the applicable guidelines range.
This is Bell’s appeal.
II.
If a defendant fails to clearly and specifically object at the
time of sentencing to the procedural reasonableness of a sentence
imposed by the district court, we ordinarily review for plain error.
United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014).
But we review de novo whether a district court complied with
18 U.S.C. § 3553(c)(2) by stating with sufficient specificity its reason
2 The sentencing factors set forth at § 3553(a) include the need to: deter crim-
inal conduct; protect the public from the defendant’s future criminal conduct;
and effectively provide the defendant with educational or vocational training,
medical care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). Other
factors include: the nature and circumstances of the offense, the history and
characteristics of the defendant, the applicable guidelines range, the pertinent
policy statements of the Sentencing Commission, the need to avoid unwar-
ranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
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22-12283 Opinion of the Court 5
for imposing a sentence outside the applicable guidelines range,
even when the defendant did not raise an objection based on
§ 3553(c)(2) below. United States v. Parks, 823 F.3d 990, 996–97
(11th Cir. 2016); see United States v. Oudomsine, 57 F.4th 1262,
1265 (11th Cir. 2023) (same).
III.
Upon finding that a defendant violated a condition of super-
vised release, a district court may revoke his supervised release and
impose a term of imprisonment. See 18 U.S.C. § 3583(e)(3). When
imposing a term of imprisonment, the district court must consider
the § 3553(a) factors. Id.
A district court commits a significant procedural error if it
fails to calculate the defendant’s guidelines range; fails to consider
the § 3553(a) factors; bases the sentence on clearly erroneous facts;
or fails to adequately explain the sentence, including an explanation
for any deviation from the guidelines range. United States v. Hill,
643 F.3d 807, 879 (11th Cir. 2011). If the district court imposes a
sentence outside the applicable guidelines range, it must “state in
open court . . . the specific reason” for the variance. 18 U.S.C. §
3553(c)(2). This statement “must be sufficiently specific so that an
appellate court can engage” in meaningful review of the district
court’s decision to impose a variance. Parks, 823 F.3d at 997 (inter-
nal quotation marks omitted). If the district court fails to make an
adequate statement, “the case must be remanded for resentenc-
ing.” Id. (emphasis in original) (internal quotation marks omitted).
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6 Opinion of the Court 22-12283
Bell argues that the district court committed a procedural
error in this case because at the revocation hearing the “district
court did not state a specific reason for the upward variance.” Ap-
pellant’s Br. at 9. We agree.
Because the 24-month sentence in this case was above the
applicable guidelines range, the district court was required to state
in court the specific reason for the variance. See 18 U.S.C.
§ 3553(c)(2); Parks, 823 F.3d at 997. The district court failed to do
so. At the revocation hearing, the court gave no indication why it
was imposing a sentence outside the guidelines range. In fact, it did
not explain at the hearing why it selected a 24-month sentence and
never mentioned any of the § 3553(a) factors. In addition, the dis-
trict court failed to calculate the applicable guidelines range and did
not expressly acknowledge that it was imposing an upward vari-
ance. Because the district court’s statements at the revocation hear-
ing are insufficient for us to engage in meaningful appellate review
of the court’s decision to impose an upward variance, we remand
for resentencing.3 See Parks, 823 F.3d at 997.
VACATED AND REMANDED.
3 Having decided that we must remand for resentencing, we need not and do
not reach Bell’s argument that the 24-month sentence was substantively un-
reasonable.