United States v. Antoinne Burrell

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0054n.06
No. 10-4564
FILED
UNITED STATES COURT OF APPEALS Jan 13, 2012
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
ANTOINNE DONNELL BURRELL, )
)
Defendant-Appellant. )
Before: COOK, WHITE, and DONALD, Circuit Judges.
PER CURIAM. Antoinne Burrell appeals the district court’s sentencing judgment following
his second revocation of supervised release. Burrell first argues that the district court committed
plain error by imposing a post-revocation sentence greater than the statutory maximum, and
alternatively challenges the substantive reasonableness of his seventeen-month sentence, which
exceeded the advisory guidelines range by six months. Finding no error or abuse of discretion and
deeming argument unnecessary, Fed. R. App. P. 34(a), we affirm.
We review Burrell’s statutory-maximum argument for plain error, because Burrell did not
object to the probation office’s recommended seventeen-month sentence, and his attorney agreed that
the term did not exceed the statutory maximum. See United States v. Craft, 495 F.3d 259, 265 (6th
Cir. 2007). Without citing the relevant statutory language or cases applying current post-revocation
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United States v. Burrell
sentencing provisions, Burrell argues that his previous post-revocation sentence—seven months’
imprisonment and twelve months’ supervised release—set the outer boundaries for his second
revocation proceedings. This position contravenes the current version of the statute governing post-
revocation sentencing, 18 U.S.C. § 3583(e)(3), and its focus on the supervised-release term
authorized by the underlying conviction. As it did at the time Burrell committed his original offense
in 2007, § 3583(e)(3) specifically authorizes the district court to “revoke a term of supervised
release” and “require the defendant to serve in prison all or part of the term of supervised release
authorized by statute for the offense that resulted in such term of supervised release without credit
for time previously served on postrelease supervision,” but limits to two years the post-revocation
imprisonment for class C and D felonies. 18 U.S.C. § 3583(e)(3) (emphasis added); see also United
States v. Palmer, 380 F.3d 395, 398 (8th Cir. 2004) (en banc) (concluding that the above-italicized
language added by a 1994 amendment changed the boundaries of post-revocation sentencing from
the original term of supervised release to the term authorized by the statute for the offense of
conviction). Because Burrell’s underlying conviction—possession with the intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1)—authorized a supervised release period of not less
than two years, see 21 U.S.C. § 841(b)(1)(D), and qualified as a Class D felony, see 18 U.S.C.
§ 3559(a)(4), the district court had the post-revocation discretion to sentence Burrell to up to two
years of imprisonment, 18 U.S.C. § 3583(e)(3). Because he received less than the statutory
maximum, Burrell has not shown error, let alone plain error.
We review Burrell’s substantive reasonableness challenge for abuse of discretion, “tak[ing]
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United States v. Burrell
into account the totality of the circumstances, including the extent of any variance from the
Guidelines range.” United States v. Polihonki, 543 F.3d 318, 322 (6th Cir. 2008) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). “A sentence is substantively unreasonable if the district
court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”
United States v. Camiscione, 591 F.3d 823, 832 (6th Cir. 2010) (internal quotation marks and
citation omitted). No presumption of reasonableness applies to a non-guidelines sentence, and the
district court must provide a “sufficiently compelling [justification] to support the degree of the
variance” it chooses. United States v. Tristan-Madrigal, 601 F.3d 629, 633 (6th Cir. 2010) (quoting
Gall, 552 U.S. at 50). Burrell argues that the district court failed to justify the six-month variance,
but the sentencing transcript reveals otherwise. The district court carefully examined Burrell’s
numerous violations of supervised release since the prior revocation of supervised release, including
his failed drug tests, his failure to attend drug treatment sessions, and his failure to check into a re-
entry facility. These facts persuaded the district court that “Mr. Burrell has no desire or motivation
to take advantage of the numerous resources that were made available to him, and he’s absconded
from supervision.” (Notably, defense counsel also recommended an upward variance in asking for
a twelve-month sentence.) We deem this justification sufficient for the six-month variance imposed
by the district court. See Polihonki, 543 F.3d at 325–26 (rejecting substantive reasonableness
challenge to higher sentence imposed following second revocation of supervised release). Burrell
does not otherwise challenge the substantive reasonableness of his second post-revocation sentence,
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United States v. Burrell
and we therefore AFFIRM.
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