United States v. King

57 F.4th 1334

UNITED STATES of America, Plaintiff-Appellee,

v.Eric KING, Defendant-Appellant.

No. 21-12963

United States Court of Appeals, Eleventh Circuit.

Filed: January 23, 2023

Christopher John Bodnar, George A. Martin, Jr., Scott Alan Gray, U.S. Attorney Service - Southern District of Alabama, U.S. Attorney's Office, Mobile, AL, for Plaintiff-Appellee.

Frederick G. Helmsing, Jr., McDowell Knight Roedder & Sledge, LLC, Mobile, AL, for Defendant-Appellant.

Before Rosenbaum, Grant, and Tjoflat, Circuit Judges.

Tjoflat, Circuit Judge:

Eric King appeals his 36-month prison sentence imposed upon revocation of his supervised release. He argues that his sentence is substantively unreasonable because (1) his conduct did not constitute a new criminal offense; (2) he accepted responsibility for his actions; and (3) he was less than a year away from completing his supervised release. After careful review, we affirm.

I.

On January 30, 2002, King was indicted on one count of conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846. He pled guilty, and was sentenced to 168 months in prison, followed by five years of supervised release. King completed his prison sentence in 2014 and then began serving his supervised release. A condition of his supervised release was the requirement that he participate in drug testing and treatment.

Between February and December 2017, the Probation Office submitted five reports to the District Court indicating that King had submitted urine samples that tested positive for methamphetamine and had admitted to using methamphetamine. The Probation Office recommended that King be allowed to continue his supervised release while receiving outpatient substance abuse treatment. The Court agreed with the recommendations and allowed King to remain on supervised release.

In January 2018, the Probation Office petitioned the District Court to revoke King's supervised release because he (1) failed to report for urine surveillance testing; (2) submitted a urine sample that tested positive for methamphetamine; (3) failed to attend drug treatment and counselling sessions; and (4) was discharged from a drug treatment program for failing to comply with its conditions. King admitted the violations. The District Court accordingly revoked his supervised release and sentenced him to serve six months in prison, followed by 36 months of supervised release. King served his prison time and once again was placed on supervised release.

Between August and September 2018, the Probation Office twice reported to the District Court that King tested positive for methamphetamine but recommended he remain on supervised release. The Court agreed.

In December 2018, the Probation Office petitioned the District Court to revoke King's supervised release because King had violated its conditions by failing to attend drug testing on two occasions and failing to report for drug treatment on four occasions. The District Court declined to revoke King's supervised release but extended its term for 24 months and added a condition that he participate in location monitoring for eight months.

In July 2021, the Probation Office again petitioned the District Court to revoke King's supervised release. The Probation Office stated that King had once again violated its terms by failing to attend the required substance abuse treatment programs on three occasions, failing to report to his probation officer as directed, and failing to file a monthly supervision report for June 2021. The Probation Office recommended that King serve 36 months in prison with no supervised release to follow, noting that he had numerous opportunities to address his substance abuse since 2017 and was no longer availing himself of treatment. Although the guidelines prescribed a prison sentence of four to ten months, the Probation Office recommended 36 months. The Probation Office justified its recommendation by stating that a prison sentence would give King an extended period of forced sobriety, impose significant punishment given his repeated offenses, take him out of society where he was consistently under the influence of methamphetamine, and allow the Probation Office to focus its resources on individuals who were amenable to treatment.

At the conclusion of his revocation hearing, King argued for a sentence within the guideline range of four to ten months. The Government requested a 36-month prison term with no additional supervised release. The District Court then revoked King's supervised release and imposed a prison term of 36 months with no supervised release to follow. The Court stated that it needed to do what was necessary to protect the public and to protect King from himself. The Court recalled that it had treated King leniently in the past, yet he continued to test positive for drugs and appeared unable to follow through with his treatment. The Court added that King "need[ed] at least a 24-month term of imprisonment to have a chance at [participating in] the intensive residential substance abuse treatment program" the Bureau of Prisons provided.

II.

We review the substantive reasonableness of a sentence, including a sentence imposed upon revocation of supervised release, under a deferential abuse of discretion standard considering the totality of the circumstances. Gall v. United States , 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L.Ed.2d 445 (2007) ; United States v. Sweeting , 437 F.3d 1105, 1106–07 (11th Cir. 2006) (finding that the same reasonableness standard that applies in reviewing an initial prison sentence also applies in reviewing a prison sentence imposed upon revocation of supervised release). The party challenging the sentence bears the burden to establish that the sentence is unreasonable according to the facts of the case and the applicable § 3553(a) factors. United States v. Tome , 611 F.3d 1371, 1378 (11th Cir. 2010).

Pursuant to 18 U.S.C. § 3583(e)(3), a district court may:

[R]evoke 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, if the court ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release.

In deciding whether to revoke the supervised release, the court must consider "the factors set forth in [ 18 U.S.C.] section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)," and (a)(4)–(7)¹ before revoking supervised release and imposing a prison term. § 3583(e).

King argues that the 36-month prison sentence that the District Court imposed after revoking his supervised release was substantively unreasonable given a proper application of the § 3553(a) factors. He contends that the conduct to which he admitted (violations of conditions of supervised release) does not support a variance from the guideline sentence range of four to ten months’ imprisonment. This is so because (1) the sentence imposed is "nine times the low end and more than 3.5 times the high end of the Chapter Seven advisory² guidelines"; (2) he repeatedly accepted responsibility for his conduct; and (3) he was less than one year away from completing his supervised release. We are unpersuaded.

A district court imposes a substantively unreasonable sentence, and thus abuses its discretion, when it "(1) fails to afford consideration to relevant [ § 3553(a) ] factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors." United States v. Irey , 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal quotation marks omitted). We say this while recognizing that we give "due deference" to the district court's consideration and weighing of relevant sentencing factors. United States v. Shabazz , 887 F.3d 1204, 1224 (11th Cir. 2018) (internal quotation marks omitted).

Whether the applicable § 3553(a) factors justify a variance is a discretionary call. United States v. Shaw , 560 F.3d 1230, 1238 (11th Cir. 2009). Although a major variance should be supported by a more significant justification than a minor variation, Gall , 552 U.S. at 50, 128 S. Ct. at 596–97, we do not presume that a sentence outside of the prescribed guideline range is unreasonable. Irey , 612 F.3d at 1187. A sentence above the prescribed guideline range is usually called for because a sentence within the range would not adequately reflect the relevant purposes of a sentence as set out in § 3553(a). United States v. Moore , 22 F.4th 1258, 1269 (11th Cir. 2022) (holding that an 18-month prison sentence imposed upon the third revocation of the defendant's supervised release was substantively reasonable when the guideline range was 8 to 14 months).

Here, King's above-the-guideline range sentence of 36 months was substantively reasonable. The District Court acted within its discretion in giving greater weight to the nature and frequency of King's violations of the conditions of his supervisory release—including his continual methamphetamine use, failure to attend substance abuse treatment programs, and failure to report to his probation officer—than to his admission of the violations, lack of new criminal charges, and near completion of the term of the release.

III.

A.

After the District Court sentenced King and elicited the parties’ objections, King did not object to the sentence on the ground that the Court had improperly based his sentence on the need for the sentence "to provide [him] with needed educational or vocational training, medical care, or other correctional treatment," i.e., rehabilitation. 18 U.S.C. § 3553(a)(2)(D). The dissent argues that the Court erred in basing King's sentence on his need for rehabilitation and that, under the plain error doctrine, we should vacate the sentence and remand the case for...