USA v. Theodore Lee Duggan

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12152
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THEODORE LEE DUGGAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:10-cr-20682-FAM-1
____________________
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2 Opinion of the Court 21-12152
Before J ORDAN, NEWSOM , and BRANCH, Circuit Judges.
PER CURIAM:
Theodore Duggan appeals his sentence of 12 months and
one day imprisonment followed by 24 months of supervised
release, which was imposed upon his second revocation of
supervised release. He raises two issues on appeal. First, he argues
that the district court plainly erred by imposing a 24-month term
of supervised release because this exceeded the maximum term
authorized by statute after accounting for his terms of
imprisonment for the revocations. Second, he argues that his
sentence is substantively unreasonable. We conclude that the
district court plainly erred in imposing a 24-month term of
supervised release, and that the sentence is not substantively
unreasonable. Accordingly, we affirm his sentence in part, vacate
in part, and remand.
I. Background
In 2010, Duggan pleaded guilty to one count of bank
robbery, in violation of 18 U.S.C. § 2113(a), and was sentenced to
120 months’ imprisonment followed by 36 months of supervised
release. The terms of Duggan’s supervised release prohibited him
from using controlled substances and required him to submit to
drug tests. Duggan was also ordered to pay $3,597 in restitution.
Duggan began supervised release in July 2020. In October
and November 2020, his probation officer reported several
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21-12152 Opinion of the Court 3
violations, including his failure to pay restitution and testing
positive for cocaine on five urine tests. Duggan admitted to these
violations and the district court revoked his supervised release and
sentenced Duggan to 60 days’ imprisonment followed by 24
months of supervised release.
Duggan began supervised release again in January 2021. In
March and April of 2021, his probation officer reported several new
violations, including his continued failure to pay restitution, an
additional five positive urine tests for cocaine, one positive test for
alcohol, and failure to work regularly in a lawful occupation. The
probation officer’s subsequent Report and Recommendation
(“R&R”) stated that Duggan’s violations qualified as Grade C
violations, for which the Court could revoke supervised release or
modify its conditions.
See U.S.S.G. § 7B1.1(a)(3);
Id. § 7B1.3(a)(2).
Duggan’s guideline imprisonment range was 8 to 14 months’
imprisonment.
See Id. § 7B1.4(a).
At the revocation hearing, Duggan admitted to the asserted
violations. The probation officer recommended a sentence of 12
months’ imprisonment with no supervised release. The
government requested eight months’ imprisonment with no
supervised release, arguing that Duggan’s violations appeared to
be the result of drug addiction, rather than “one-off” instances.
Duggan requested a “bottom or lower” sentence and furlough to
provide him time to sublease his apartment, pointing out that he
had already served 120 months, and that, as a drug addict, more
time in the system would not change his addiction. Duggan and
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4 Opinion of the Court 21-12152
the district court engaged in a lengthy conversation regarding his
history of drug abuse, his past offenses, and his family. Duggan
identified several mitigating circumstances, including his
admission of his supervised release violations, his desire to send
money to his son for graduate school, the deficiency of his
treatment program—he received only two minutes of online
individual treatment at his weekly court ordered group session
drug treatment program—and the fact that he had achieved stable
housing and was trying to “stay clean.” The district court noted
Duggan’s lengthy drug history, including his past drug offenses, his
previous abscondment from a conditional release drug treatment
program, and his misconduct while in prison. The probation
officer noted that Duggan also withdrew from a drug treatment
program in prison.
The district court stated that, even though it would be
justified in imposing an above-guideline sentence under 18 U.S.C.
§ 3553(a) based on Duggan’s prior record, it would not because
Duggan admitted to his supervised release violations. The court
also acknowledged Duggan’s drug addiction but noted that he had
been referred to treatment programs several times. The court
sentenced Duggan to 12 months’ and 1 day to be followed by 24
months’ supervised release. The court also recommended drug
treatment in prison and upon release. Duggan did not object to his
sentence.
Duggan timely appealed.
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II. Discussion
A. Whether the district court plainly erred in imposing a
term of 24 months’ supervised release
Duggan argues that the district court plainly erred when it
sentenced him to 24 months of supervised release because that
term exceeded the maximum amount of supervised release that is
allowed under 18 U.S.C. § 3583(h). The government agrees that
plain error occurred.1
When “a defendant raises a sentencing argument for the first
time on appeal, we review for plain error.”
United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). We may reverse if:
(1) there was an error; (2) that error was plain; (3) that error affects
the defendant’s substantial rights; (4) and that error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.
United States v. Innocent, 977 F.3d 1077, 1081 (11th Cir. 2020). “An
error is plain if it is clear or obvious,” meaning that the explicit
language of a statute, rule, or precedent from the Supreme Court
or our Court directly resolves the issue.
Id. (quotation omitted).
For an error to affect substantial rights, it must have been
prejudicial, meaning that “[i]t must have affected the outcome of
the district court proceedings.”
United States v. Olano, 507 U.S.
1 “Although we are not required to accept the government's concession . . .
we agree with [Duggan] and the government that the district court plainly
erred in imposing a term of supervised release here.”
United States v. Moore,
_F.4th_, *4 n.4 (11th Cir. 2022).
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725, 734 (1993). To determine whether plain error in imposition of
supervised release affects the defendant’s substantial rights, “we
must decide whether the term of supervised release that the district
court imposed exceeds that permissible under the applicable
statute.”
United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir.
2003). Duggan has demonstrated all four prerequisites here.
First, there was an error and that error was plain. Bank
robbery under 18 U.S.C. § 2113(a) carries a maximum term of three
years of supervised release.
See 18 U.S.C. §§ 2113(a), 3559(a)(3),
§ 3583(b)(2). If a district court revokes a term of supervised release
and then imposes a term of imprisonment, it may also require the
defendant to serve a term of supervised release after that
imprisonment.
See 18 U.S.C. § 3583(h). However, “[t]he length of
such a term of supervised release shall not exceed the term of
supervised release authorized by statute for the offense that
resulted in the original term of supervised release,
less any term of
imprisonment that was imposed upon revocation of supervised
release.”
Id. (emphasis added). However, after multiple
revocations, § 3583(h) requires that the statutory maximum term
of supervised release “be reduced by the aggregate length of any
terms of imprisonment that have been imposed upon revocation.”
United States v. Mazarky, 499 F.3d 1246, 1250 (11th Cir. 2007).
The statutory maximum term of Duggan’s supervised
release is 36 months under the statute, reduced by any amount of
time Duggan is imprisoned for violating the terms of his release.
See 18 U.S.C. §§ 2113(a), 3559(a)(3), 3583(b)(2) & (h). The district
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21-12152 Opinion of the Court 7
court sentenced Duggan to serve 12 months and 1 day
imprisonment and Duggan had already served two months
imprisonment for a prior revocation—resulting in a total term of
imprisonment of 14 months and 1 day. Therefore, the maximum
supervised release term that Duggan could be sentenced to for this
revocation is 22 months less one day.
See Moore, _F.4th at *4.
Accordingly, the district court plainly erred by sentencing Duggan
to 24 months of supervised release.
Next, because Duggan would have received a lower
sentence absent the district court’s plain error, he has also
demonstrated prejudice.
See Olano, 507 U.S. at 734. The error
affects Duggan’s substantial rights “because it exposed him to an
unauthorized term of supervised release.”
Moore, _F.4th at *5.
Finally, as a plain statutory error, the excessive supervised
release term undermines the fairness, integrity, or public
reputation of judicial proceedings.
See Rosales Mireles, 138 S. Ct.
1897, 1908 (2018) (“The risk of unnecessary deprivation of liberty
particularly undermines the fairness, integrity, or public reputation
of judicial proceedings in the context of a plain Guidelines error
because of the role the district court plays in calculating the range
and the relative ease of correcting the error.”);
Moore, _F.4th at *5.
Accordingly, we vacate Duggan’s term of supervised release
and remand for the district court to resentence him to serve no
more than 22 months less one day of supervised release consistent
with this opinion.
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B. Whether the district court sentenced Duggan to a
substantively reasonable term of imprisonment
Duggan challenges his one year and one day sentence of
imprisonment, arguing that it is substantively unreasonable under
18 U.S.C § 3353(a)(1) because of Duggan’s drug addiction and
inability to obtain sufficient treatment after he was sentenced
originally because of the restraints of the pandemic.
“We generally review a district court’s revocation of
supervised release for an abuse of discretion. We review the
sentence imposed upon the revocation of supervised release for
reasonableness.”
United States v. Velasquez Velasquez, 524 F.3d
1248, 1252 (11th Cir. 2008) (citation omitted). A defendant’s
argument for a specific sentence preserves for appeal his claim that
a longer sentence is substantively unreasonable.
Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
When examining the substantive reasonableness of a
sentence, we consider the totality of the circumstances and the
18 U.S.C. § 3553(a) factors.
United States v. Trailer, 827 F.3d 933,
936 (11th Cir. 2016). After considering certain factors in § 3553(a),
the district court may revoke a defendant’s supervised release if the
court finds by a preponderance of the evidence that the defendant
violated a condition of his supervised release. 18 U.S.C. §
3583(e)(3). These factors include: (1) the nature and circumstances
of the offense and the defendant’s history and characteristics; (2)
the need for the sentence to deter criminal conduct, protect the
public from the defendant’s further crimes, and provide the
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defendant with needed educational or vocational training, medical
care, or other correctional treatment; (3) the sentencing guidelines
range; (4) any pertinent policy statement; (5) the need to avoid
unwarranted sentence disparities among similarly situated
defendants; and (6) the need to provide restitution to victims of the
offense.
See 18 U.S.C. §§ 3553(a) and 3583(e). “[T]he weight to be
accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our
judgment in weighing the relevant factors.”
United States v.
Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013) (quotation omitted).
The defendant bears the burden to establish that his
sentence is unreasonable considering the record and the § 3553(a)
factors.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.
2010). We will vacate only if “we are left with the definite and firm
conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the
facts of the case.”
Trailer, 827 F.3d at 936 (quotation omitted).
Here, Duggan’s sentence is substantively reasonable. The
district court engaged in a lengthy colloquy with Duggan—
spanning more than half of the sentencing transcript—about his
drug addiction, experiences with treatment programs, mitigating
factors, and criminal history. Additionally, the district court
explicitly indicated that it considered the § 3553(a) factors in its
decision. The district court did not abuse its broad discretion by
choosing to place more weight on Duggan’s criminal history and
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the need for deterrence, as the district court was entitled to do so.
See Kuhlman, 711 F.3d at 1327. The prison term of one year and
one day is also less than the maximum term of two years
imprisonment, an indicator of reasonableness.
See 18 U.S.C.
§3583(e)(3);
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008) (explaining that a sentence below the statutory
maximum indicates reasonableness). Accordingly, we affirm
Duggan’s sentence of imprisonment.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
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