USA v. Hollis Thompson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10773
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOLLIS THOMPSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cr-00119-TFM-1
____________________
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2 Opinion of the Court 21-10773
Before J ORDAN, NEWSOM , and ANDERSON, Circuit Judges.
PER CURIAM:
Hollis Thompson appeals his 14-month sentence upon rev-
ocation of supervised release. He argues that his sentence was sub-
stantively unreasonable because the district court gave significant
weight to an improper or irrelevant factor, failed to give consider-
ation to factors that were due significant weight, and committed a
clear error of judgment in weighing the proper factors. We disa-
gree and affirm.
We generally review a sentence imposed upon revocation
of supervised release for reasonableness.
See United States v. Van-
dergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). When reviewing for
procedural reasonableness, we consider legal issues
de novo and
reviews factual findings for clear error.
See United States v.
Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). When reviewing
for substantive reasonableness, we consider the totality of the cir-
cumstances under a deferential abuse-of-discretion standard.
See
Gall v. United States, 552 U.S. 38, 51 (2007). The party challenging
the sentence bears the burden to show that the sentence is unrea-
sonable considering the record and the 18 U.S.C. § 3553(a) factors.
See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
If an appellant did not object on the basis of procedural rea-
sonableness before the district court, we review for plain error.
Vandergrift, 754 F.3d at 1307. But a defendant’s argument for a
specific sentence in the district court preserves for appeal a claim
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21-10773 Opinion of the Court 3
that a longer sentence was substantively unreasonable.
See Hol-
guin-Hernandez v. United States, 140 S. Ct. 762, 766–67 (2020). A
defendant is not required to raise a specific objection that the sen-
tence is unreasonable, which is the standard of review for appeal,
but need only bring to the district court’s attention his view that a
longer sentence is greater than necessary.
See id.
In reviewing the reasonableness of a sentence, we first con-
sider whether the district court committed a procedural error, such
as failing to calculate or improperly calculating the guideline range.
See Gall, 552 U.S. at 51. We ensure that the district court treated
the Guidelines as advisory, considered the § 3553(a) factors, did not
select a sentence based on clearly erroneous facts, and adequately
explained the chosen sentence.
See id. A district court’s acknowl-
edgment that it has considered the § 3553(a) factors and the parties’
arguments is usually sufficient.
See United States v. Sarras,
575 F.3d 1191, 1219 (11th Cir. 2009).
A court can abuse its discretion by imposing a substantively
unreasonable sentence when it (1) fails to consider relevant factors
that were due significant weight, (2) gives an improper or irrele-
vant factor significant weight, or (3) commits a clear error of judg-
ment by balancing the proper factors unreasonably.
See United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc)
. Thus,
a district court’s unjustified reliance on any one § 3553(a) factor
may be indicative of an unreasonable sentence.
See United States
v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). Though the district
court is required to evaluate all of the § 3553(a) factors, the weight
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4 Opinion of the Court 21-10773
accorded to each factor is within the sound discretion of the district
court.
See United States v. Ramirez-Gonzalez, 755 F.3d 1267,
1272–73 (11th Cir. 2014). Under the abuse-of-discretion standard,
we will affirm any sentence that falls within the range of reasonable
sentences, even if we would have decided that a different sentence
was more appropriate.
See Irey, 612 F.3d at 1191. Although we do
not automatically presume a sentence falling within the guideline
range is reasonable, we ordinarily expect such a sentence to be rea-
sonable.
See United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008). A sentence imposed well below the statutory maximum
penalty is another indicator of a reasonable sentence.
See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
A district court may revoke supervised release after consid-
ering “the factors set forth in [§§] 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(e). The
enumerated § 3553(a) factors include, in relevant part, (1) the na-
ture and circumstances of the offense and the history and charac-
teristics of the defendant; (2) the need to afford adequate deter-
rence to criminal conduct; (3) the need to protect the public from
further crimes of the defendant; (4) the need to provide the defend-
ant with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner;
(5) the kinds of sentence and the sentencing range under the Guide-
lines; and (6) any pertinent policy statement issued by the Sentenc-
ing Commission.
See § 3553(a). Absent from § 3583(e) is
§ 3553(a)(2)(A), which provides that a district court consider “the
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21-10773 Opinion of the Court 5
need for the sentence imposed . . . to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punish-
ment for the offense.” § 3553(a)(2)(A). The introduction to Chap-
ter 7 of the Sentencing Guidelines explains that the Commission
adopted the position that, in revoking supervised release, a district
court should sanction primarily the defendant’s breach of trust,
while taking into account, to a limited degree, the seriousness of
the underlying violation and the criminal history of the violator.
See U.S.S.G. Ch. 7, Pt. A, intro. comment.
In
Vandergrift, we considered, under plain error review,
whether a district court’s consideration of § 3553(a)(2)(A) in impos-
ing a sentence upon revocation of supervised release was procedur-
ally unreasonable. 754 F.3d at 1308–09. We recognized that nei-
ther we nor the Supreme Court had addressed whether it was an
error to consider a factor listed in § 3553(a)(2)(A) when imposing a
sentence after revoking supervised release and that those circuits
that had published an opinion addressing the issue were split.
See
id. However, we held that, considering the lack of clear binding
precedent and the circuit split, a district court’s consideration of
§ 3553(a)(2)(A) in imposing a sentence upon revocation of super-
vised release was not plain error.
See id.
Here, as an initial matter, the district court’s consideration
of § 3553(a)(2)(A) in imposing a sentence upon revocation of super-
vised release, an issue which Mr. Thompson did not raise at sen-
tencing and which we have considered to be a question of proce-
dural reasonableness, was not plain error, as it was not contrary to
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6 Opinion of the Court 21-10773
binding precedent. Moreover, Mr. Thompson’s sentence was sub-
stantively reasonable because it was below the statutory maximum
and within the guideline range and the district court considered
and did not abuse its discretion in weighing the applicable § 3553(a)
factors, including his background and characteristics, and the cir-
cumstances of his violation of the terms of his supervised release
(which involved use of a controlled substance, discharge from a
residential re-entry center, and the improper use of a phone at the
center).
AFFIRMED.
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