USA v. Marlo Grier

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 9, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-14100
Non-Argument Calendar
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D. C. Docket No. 05-00403-CR-3-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLO GRIER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 9, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Marlo Grier appeals his ten-month sentence imposed following revocation of
his term of supervised release, 18 U.S.C. § 3583(e). We conclude the sentence

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imposed was reasonable and affirm.
In 2006, Grier pleaded guilty to one count of theft of firearms from a
federally licensed firearms dealer, in violation of 18 U.S.C. §§ 922(u). In July
2006, the district court sentenced Grier to twelve months and one day in prison,
followed by three years of supervised release. One of the conditions of Grier’s
supervised release was that he not commit another federal, state, or local crime.
Grier was released from prison in August 2007 and began his term of supervised
release.
In 2009, the probation officer filed a petition for a warrant and an order to
show cause as to why Grier’s supervised release should not be revoked. The
petition alleged, and Grier did not contest, that Grier had violated the conditions of
his release by committing a burglary in Rockdale County, Georgia. The district
court found that Grier was in violation of his supervised release, calculated the
advisory guidelines range as four to ten months’ imprisonment, and sentenced him
to ten months. On appeal, Grier argues that his sentence is substantively
unreasonable in light of the 18 U.S.C. § 3553(a) factors.
We review a sentence imposed following revocation of supervised release
for reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252
(11th Cir. 2008). In reviewing whether a sentence is reasonable, we must ensure,
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first, that the district court did not commit a significant procedural error, “such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169
L.Ed.2d 445 (2007). We must then determine whether the sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) factors, using an
abuse-of-discretion standard. Id. at 51, 128 S.Ct. at 597.
Here, Grier argues only that his sentence is substantively unreasonable. As
the party challenging the sentence, Grier bears the burden of showing that it is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
We have “recognize[d] that there is a range of reasonable sentences from
which the district court may choose.” Id. We ordinarily expect a sentence within
the defendant’s advisory guideline range to be reasonable. Id. We “will defer to
the district court’s judgment regarding the weight given to the § 3553(a) factors”
unless we conclude that the district court made a clear error of judgment. United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
We conclude the ten-month sentence is substantively reasonable. Both
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Grier’s original conviction and the violation at issue involved the commission of
burglaries. Therefore, a longer sentence was justified based upon the nature and
circumstances of the violation, Grier’s history and characteristics, the need to
promote respect for the law, and the need to protect the public.
Grier’s sentence is within his advisory guideline range and is fourteen
months less than the statutory maximum. And although Grier cites various
considerations that might weigh in favor of a shorter sentence, such as his lack of
previous violations and his willingness to cooperate in the state investigation into
the burglary, we defer to the district court’s decision to give other considerations
more weight. Because the district court did not abuse its discretion by sentencing
Grier to ten months’ imprisonment, we affirm.
AFFIRMED.
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