United States v. Javon Sholtz

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10444
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVON SHOLTZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:06-cr-14061-KMM-1
____________________
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2 Opinion of the Court 22-10444
Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Javon Sholtz appeals his sentence of 30 months’ imprison-
ment and lifetime supervised release, minus the term of imprison-
ment, imposed following the revocation of his supervised release
for violating Florida’s child abuse laws. Sholtz argues that the dis-
trict court erred in imposing a lifetime term of supervised release,
minus the term of imprisonment, because it exceeds the statutory
maximum under 18 U.S.C. § 3583(h). He also argues that his sen-
tence was substantively unreasonable because the district court
failed to consider the 18 U.S.C. § 3553(a) factors and that he had
already completed a state prison term for the conduct that led to
revocation.
I.
If a party does not raise the legality of a sentence imposed
upon revocation of supervised release, we review for plain error.
United States v. Henderson, 409 F.3d 1293, 1307 (11th Cir. 2005).
Under plain error, we may correct an error if the defendant demon-
strates that (1) there was an error, (2) the error was plain, (3) the
error affects the defendant’s substantial rights, and (4) the error se-
riously affects the fairness, integrity, or public reputation or judicial
proceedings.
United States v. Moore, 22 F.4th 1258, 1264-65 (11th
Cir. 2022).
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22-10444 Opinion of the Court 3
A district court may revoke a term of supervised release and
require the defendant to serve in prison all or part of the term of
supervised release. 18 U.S.C. § 3583(e)(3). The court may also re-
quire the defendant serve a term of supervised release after impris-
onment, but the supervised release term shall not exceed the term
of supervised release authorized by statute for the offense that re-
sulted in the original term of supervised release, less any term of
imprisonment that was imposed upon revocation of supervised re-
lease.
Id. § 3583(h).
Section 3583(b) provides the authorized terms of supervised
release and states that “except as otherwise provided,” the term of
supervised release for Class A or B felonies is not more than five
years. 18 U.S.C. § 3583(b)(1). The former statutory maximum
penalty for a violation of § 841(a) involving 5 grams or more of
crack cocaine was 40 years’ imprisonment, making it a Class B fel-
ony. 21 U.S.C. § 841(b)(1)(B) (2007); 18 U.S.C. § 3559(a)(2). Sec-
tion 841(b)(1)(B) outlines the penalties for certain violations of
§ 841(a) and states that “[n]otwithstanding section 3583 of Title
18,” any sentence for a violation of § 841(a) involving the quantities
specified under § 841(b)(1)(B) shall include at least four years of su-
pervised release where the defendant does not have a prior convic-
tion for a serious drug felony or serious violent felony.
21 U.S.C. § 841(b)(1)(B). We have also held that a statute that does
not have a maximum term of imprisonment authorizes a term up
to life.
See United States v. Brame, 997 F.2d 1426, 1428 (11th Cir.
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4 Opinion of the Court 22-10444
1993) (holding that 18 U.S.C. § 924(e) authorizes life imprisonment
even though the statute does not expressly state a maximum).
In
Sanchez, we construed a different subsection of § 841 that
contained similar language regarding supervised release and held
it, not 18 U.S.C. § 3583(b)(2), controls the length of supervised re-
lease for a § 841(a) conviction.
United States v. Sanchez, 269 F.3d
1250, 1287-88 (11th Cir. 2001) (
en banc),
abrogated in part on other
grounds by United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005).
We reasoned that § 3583(b)(2) limited the maximum term of super-
vised release for a Class C felony to three years “[e]xcept as other-
wise provided” and that § 841(b)(1)(C) expressly “otherwise pro-
vide[s]” for a supervised release term of “at least three years
.”
Id.
(quotation marks omitted, alterations in original). We found that
to interpret § 3583(b)(2) as creating a maximum term of supervised
release of three years would render the words “at least” in
§ 841(b)(1)(C) superfluous.
Id. We also found that the legislative
history of both statutes indicated that Congress did not intend for
a term of supervised release under § 841(b)(1)(C) to be limited to
three years, as it would be if § 3583(b)(2) controlled.
Id. We also
relied on decisions from other circuits in concluding that
§ 3583(b)(2) did not limit the term of supervised release authorized
in § 841(b)(1)(C) and that a term of supervised release over the min-
imum in § 841(b)(1)(C) may be imposed notwithstanding the limits
in 18 U.S.C. § 3583(b).
Id. at 1287-88. Notably, Congress amended
21 U.S.C. § 841(b) after
Sanchez to clarify that the supervised re-
lease terms that it prescribed applied “[n]otwithstanding section
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22-10444 Opinion of the Court 5
3583 of Title 18.”
Compare 21 U.S.C. § 841(b)(1) (2000),
with
21 U.S.C. § 841(b)(1) (2002).
Here, Sholtz has not shown plain error because
21 U.S.C. § 841(b)(1)(B) controls the term of his supervised release
and authorizes up to life because it provides no maximum term.
As this Court concluded in Sanchez, the limits on a supervised re-
lease term in § 3583(b) did not apply to Sholtz’s conviction under §
841(a) because § 841(b)(1)(B) expressly otherwise provided for a su-
pervised release term of at least four years.
Sanchez, 269 F.3d at
1287; see also 21 U.S.C. § 841(b)(1)(B). Furthermore, the amend-
ments to § 841(b) after
Sanchez to clarify that the supervised release
terms that it prescribed apply “[n]otwithstanding section 3583 of
Title 18” reinforced the holding in
Sanchez that the limits in §
3583(b)(2) do not apply here.
Compare 21 U.S.C. § 841(b)(1) (2000),
with 21 U.S.C. § 841(b)(1) (2002). Finally, the district court was
authorized to impose a supervised release term of up to life, minus
any term of imprisonment imposed upon revocation, because 21
U.S.C. § 841(b)(1)(B) provided no maximum term of supervised re-
lease.
See Brame, 997 F.2d at 1428;
Sanchez, 269 F.3d at 1287-88.
Thus, Sholtz has not met his burden in showing that the district
court erred, much less plainly erred, in imposing a term of super-
vised release for life, minus any term of imprisonment imposed
upon revocation.
II.
We review the reasonableness of a sentence upon revoca-
tion of supervised release for abuse of discretion.
United States v.
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6 Opinion of the Court 22-10444
Trailer, 827 F.3d 933, 935 (11th Cir. 2016). The district court abuses
its discretion when it “(1) fails to afford consideration to relevant
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) (quotation marks
omitted).
The district court must evaluate all the § 3553(a) factors, but
the weight accorded to each factor is within the sound discretion
of the district court.
United States v. Ramirez-Gonzales, 755 F.3d
1267, 1272-73 (11th Cir. 2014). However, the district court need
not explicitly address “each of the § 3553(a) factors or all of the mit-
igating evidence,” but rather acknowledgment by the court that it
considered the § 3553(a) factors and the parties’ arguments is suffi-
cient.
United States v. Taylor, 997 F.3d 1348, 1354-55 (11th Cir.
2021). We do not formally presume that a within-guideline range
sentence is reasonable, but we generally expect it to be so.
United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
The Sentencing Guidelines provide that a sentence imposed
upon revocation should sanction primarily the defendant’s “breach
of trust” for failing to abide by the conditions of the court order
ordered supervision, while also accounting for, to a limited degree,
the seriousness of the underlying violation and criminal history of
the violator. U.S.S.G. Ch. 7, Pt. A, intro. comment. 3(b).
Here, Sholtz’s sentence is substantively reasonable. It was
within the district court’s discretion to heavily weigh Sholtz’s
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22-10444 Opinion of the Court 7
history of violence and to impose a 30-month imprisonment sen-
tence followed by a term of lifetime supervised release, minus the
imprisonment term, when Sholtz had already served his sentence
for the underlying state offense because a sentence imposed upon
revocation of supervised release is intended as a sanction for the
defendant’s breach of trust. The district court relied on several §
3553(a) factors, namely Sholtz’s lengthy criminal history, the na-
ture and circumstances of Sholtz’s present violation of child abuse
and the trauma that it would cause the victim, Sholtz’s history of
domestic battery involving his sister, and the need for deterrence
and to protect the public due to these violent offenses, stating that
there is some conduct that does not require lifetime supervision,
but Sholtz’s does. Although the court did not explicitly mention
the factors highlighted by Sholtz, such as how he otherwise com-
plied with his conditions of supervised release such as maintaining
a job and having a negative urinalysis, it was not required to do so
and instead was permitted to focus on his past history of domestic
battery and his most recent child abuse conviction.
See Taylor, 997
F.3d at 1354. The district court’s decision to heavily weigh Sholtz’s
history of violence was within its discretion.
Ramirez Gonzalez,
755 F.3d at 1272-73. Finally, the 30-month sentence was within the
guideline range of 24 to 30 months’ imprisonment, which this
Court generally expects to be reasonable.
Hunt, 526 F.3d at 746.
In addition, as a sentence imposed for a revocation of supervised
release is intended as a sanction for the defendant’s breach of trust
and to run consecutively to the sentence imposed for the violative
conduct, it was not unreasonable for the court to impose a sentence
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8 Opinion of the Court 22-10444
followed by a term of lifetime supervised release when Sholtz had
already served his sentence for the underlying state offense.
U.S.S.G. Ch. 7, Pt. A, intro. comment. 3(b). Further, as described
above, the term of supervised release was within the statutory
range. Therefore, the district court did not abuse its discretion, and
Sholtz’s sentence is substantively reasonable.
AFFIRMED.
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