USA v. Darrin Virgil, Jr.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 12, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-15080
Non-Argument Calendar
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D. C. Docket No. 07-80158-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRIN VIRGIL, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 12, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Darrin Virgil, Jr., appeals his eight-month sentence of imprisonment,

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imposed after violating the terms of his supervised release, 18 U.S.C. § 3583. On
appeal, he contends that this sentence is substantively unreasonable.
We review a sentence imposed upon the revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006). A reasonable sentence is one that is both procedurally and substantively
reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). The party challenging
the reasonableness of the sentence bears the burden of establishing that the
sentence is unreasonable in light of both the record and the § 3553(a) factors.
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Here, Virgil1
challenges only the substantive reasonableness of his eight-month sentence and we
limit our review accordingly.
At sentencing, Virgil agreed that the sentencing guideline range of four to
ten months’ imprisonment had been properly calculated and requested the court to
The relevant § 3553(a) factors include:
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(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed . . . treatment;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range . . . ; and
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.
18 U.S.C. § 3553(a).
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sentence him at the low-end of the guideline range and order his placement in a
halfway house. Virgil’s attorney explained that the structure of the halfway house
would assist Virgil in becoming a better citizen in society. The government asked
for a longer term of incarceration given the circumstances surrounding the
revocation of his supervised release, but agreed that placement in a halfway house
would be beneficial. The probation officer briefly discussed her concerns
regarding Virgil’s activities since his recent release from incarceration, but
indicated that there was “some hope” so long as he could be “redirected.” The
probation officer then explained to the district court that she believed that an
eight-month rather than a four-month sentence would allow the Bureau of Prisons
enough time to arrange for Virgil’s placement upon release in a halfway house.
The district court stated that it “carefully considered the statements of all
parties and the information contained in the violation report” and then sentenced
Virgil to an eight-month term of imprisonment with a special condition that Virgil
serve four months in a halfway house immediately after his term of imprisonment.
Although the district court did not explicitly mention that it considered the § 3553
factors, given the statements from Virgil, the government and the probation officer
regarding the benefit to Virgil of spending time in a halfway house in light of the
ultimate sentence imposed, the record reflects that the district court “adequately
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and properly considered” the sentencing objective of rehabilitation. See 18 U.S.C.
§ 3553(a)(2)(D). That the district court placed great weight on this one factor does
not render the sentence unreasonable, given that the district court attempted to craft
a sentence that was responsive to this individual defendant’s request for
rehabilitation. Moreover, Virgil’s attorney, the government’s attorney, and the
probation officer each provided the court with information about Virgil’s recent
background as well as their impressions about his individual characteristics, see 18
U.S.C. § 3553(a)(1), statements the district court stated that it considered before
rendering sentence. Accordingly, we find that Virgil’s eight-month sentence is not
substantively unreasonable.
AFFIRMED.
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