USA v. Rodney Sosebee

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 9, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12006
Non-Argument Calendar
________________________
D.C. Docket No. 2:00-cr-00059-WCO-JRS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
RODNEY SOSEBEE,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 9, 2011)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:

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Rodney Sosebee appeals his sentence of 18 months’ imprisonment and
18 months’ supervised release, which the district court imposed following the
revocation of his supervised release, pursuant to 18 U.S.C. § 3583(e)(3). On appeal,
Sosebee does not challenge the district court’s finding that he violated his supervised
release. Nor does Sosebee argue that his sentence was procedurally unreasonable.
His sole challenge on appeal is that the district court imposed a new prison sentence
and new supervised release term that were substantively unreasonable. He asserts
that his sentence was greater than necessary to promote the aims of sentencing under
18 U.S.C. § 3553(a).
I.
The relevant facts are these. On February 20, 2001, Sosebee was sentenced to
92 months’ imprisonment and 48 months’ supervised release, after he pled guilty to
one count of distribution of more than 50 grams of methamphetamine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii). According to the presentence investigation
report, Sosebee’s criminal history category was IV. In December 2008, while serving
his supervised release term, Sosebee was arrested and charged with theft by
shoplifting, obstruction of an officer, and possession of drugs not in the original
container. The district court modified Sosebee’s supervised release and imposed a
period of 120 days’ home confinement with electronic monitoring.
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On April 5, 2011, an amended summons and order to show cause why
supervised release should not be revoked (“revocation petition”) was filed by the
probation office. This petition alleged the following violations: (1) on March 24,
2011, Sosebee committed the offense of theft by shoplifting when he and an
accomplice stole a television and computer from Wal-Mart, in violation of state law;
(2) Sosebee failed to attend several drug counseling and treatment sessions from
November 2010 through March 2011; and (3) Sosebee associated with two known
felons during the theft by shoplifting offense on March 24, 2011.
After a revocation hearing, the district court found that Sosebee had violated
the conditions of his supervised release, and subsequently revoked his supervised
release. Sosebee was sentenced to 18 months’ imprisonment, with the
recommendation that he receive drug treatment and placement in a medical facility.
In addition, Sosebee was sentenced to 18 months’ supervised release, incorporating
all the conditions from his previous judgment and commitment order, including drug
treatment. Sosebee objected to the length and reasonableness of the sentence. He
also requested the court to reconsider the sentence of 18 months’ supervised release,
and the court declined, stating that Sosebee needed supervision until the court knew
that he was “under control.”
II.
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Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of his
supervised release, revoke the term of supervised release and impose a term of
imprisonment after considering certain 18 U.S.C. § 3553(a) factors. 18 U.S.C.
§ 3583(e)(3); United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).
Before imposing a sentence, the district court must consider: (1) the nature and
circumstances of the offense; (2) the history and characteristics of the defendant; (3)
the need for the sentence to afford adequate deterrence to criminal conduct, protect
the public from further crimes of the defendant, and provide the defendant with
needed educational or vocational training, medical care, or other correctional
treatment; (4) the kinds of sentences available; (5) any pertinent policy statements;
(6) the need to avoid unwarranted sentencing disparities; and (7) the need to provide
restitution to victims. See 18 U.S.C. § 3583(e) (cross-referencing the18 U.S.C. §
3553(a) factors to consider when modifying or revoking a term of supervised release).
In addition to the district court’s authority to impose a new prison term after
revoking a defendant’s supervised release, the court may also impose a new term of
supervised release after imprisonment. 18 U.S.C. § 3583(e), (h); United States v. Pla,
345 F.3d 1312, 1314 (11th Cir. 2003). The length of the new supervised release term
cannot exceed the term of supervised release authorized by statute for the offense that
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resulted in the original term of supervised release minus any imprisonment imposed
upon revocation of supervised release. 18 U.S.C. § 3583(h).
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008). “[A] sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir. 2008)
(quotation omitted). We review both the procedural and substantive reasonableness
of a sentence for an abuse of discretion. Id. at 1273 n.25. The party challenging the
sentence has the burden of establishing that the sentence was unreasonable in light
of the record and the 18 U.S.C. § 3553(a) factors. United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005).
In reviewing the reasonableness of a sentence for abuse of discretion, we use
a two-step process. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010),
cert. denied, 131 S. Ct. 674 (2010). We look first at whether the district court
committed any significant procedural errors, and then at whether the sentence is
substantively reasonable under the totality of the circumstances. Id. Although we do
not automatically deem a sentence falling within the guidelines range to be
reasonable, we ordinarily expect such a sentence to be reasonable. Tally, 431 F.3d
at 788. “We may set aside a sentence only if we determine, after giving a full
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measure of deference to the sentencing judge, that the sentence imposed truly is
unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc),
cert. denied, 131 S. Ct. 1813 (2011). A sentence may only be vacated 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.” United States v.
Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted).
After thorough review, we affirm. Giving deference to the district court, as we
must, we conclude that Sosebee’s total sentence was within the range of reasonable
sentences based on the facts of the case and the totality of the circumstances. See
United States v. Bradley, 644 F.3d 1213, 1304 (11th Cir. 2011) (stating that the
appellate court should review sentences for substantive reasonableness by
“determin[ing] the range of reasonable sentences dictated by the facts of the case,
taking into account the totality of the circumstances and giving deference to the
district court.”).
Sosebee has failed to meet his burden of showing that his sentence was
unreasonable. First, Sosebee’s 18-month imprisonment sentence was below the
maximum sentence authorized by statute for sentences imposed upon revocation of
supervised release. Accord Sweeting, 437 F.3d at 1107 (observing, in upholding the
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reasonableness of a sentence imposed upon revocation of supervised release, that the
sentence was within the statutory maximum sentence). Sosebee was convicted of
distributing more than 50 grams of methamphetamine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B)(viii), and the statutory maximum sentence for this offense is
40 years’ imprisonment, which results in this offense being classified as a Class B
felony. See 21 U.S.C. § 841(b)(1)(B)(viii); 18 U.S.C. § 3559(a)(2) (stating that an
offense with a maximum term of imprisonment of 25 years or more is classified as a
Class B felony). The maximum term of imprisonment following revocation of
supervised release for an original conviction of a Class B felony is three years. See
18 U.S.C. § 3583(e)(3). Sosebee’s 18-month imprisonment sentence was below the
3-year or 36-month statutory maximum imprisonment term authorized upon the
revocation of his supervised release.
Similarly, Sosebee’s 18-month term of supervised release was well below the
statutory maximum. Upon revocation of supervised release, the district court was
permitted to include a term of supervised release after a term of imprisonment that did
not exceed the term of supervised release authorized by the original conviction minus
any term of imprisonment imposed upon revocation of supervised release. 18 U.S.C.
§ 3583(h). Here, Sosebee’s original supervised release term was based on his
conviction for the Class B felony of distribution of more than 50 grams of
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methamphetamine, and a maximum of 5 years of supervised release is authorized by
statute. 18 U.S.C. § 3583(b)(1). Therefore, 5 years or 60 months minus the 18-month
imprisonment term yields a maximum 42-month supervised release term. Sosebee’s
18-month supervised release term was far less than the maximum 42-month
supervised release term, and did not violate 18 U.S.C. § 3583(h).
Sosebee’s 18-month imprisonment sentence was also within the relevant
guidelines’ range. With the original offense being a Class B felony, and with
Sosebee’s prior criminal history category of IV, the district court correctly determined
that Sosebee’s guidelines’ range was 12 to 18 months, pursuant to U.S.S.G.
§ 7B1.4(a). Although Sosebee’s 18-month imprisonment sentence represented the
highest end of the applicable guidelines’ range, we ordinarily expect a sentence
within the guidelines to be reasonable. See Tally, 431 F.3d at 788.
Finally, the total sentence was reasonable based on the district court’s
compliance with 18 U.S.C. § 3583(e) and the applicable 18 U.S.C. § 3553(a) factors.
During sentencing, the court addressed the § 3553(a) sentencing factors, including
the need for punishment, deterrence, and societal protection, all of which supported
a lengthy sentence. Sosebee admits that he violated the conditions of his original
supervised release. Based on the evidence, the district court concluded that Sosebee’s
March 2011 theft by shoplifting offense was a felony, and not a mere misdemeanor.
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In addition, before Sosebee was charged with the current theft by shoplifting
violation, his supervised release was modified because of several charges, including
theft by shoplifting. Thus, the need for punishment was substantial because Sosebee
had engaged in the same criminal conduct before, and a lengthy sentence of
imprisonment could show that the district court was responding to Sosebee’s
recidivism and past criminal history in the hopes of deterring future criminal conduct
by Sosebee. In short, the district court did not abuse its discretion in sentencing
Sosebee, and we are not at all “left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a) factors.”
Pugh, 515 F.3d at 1191(quotation omitted).
AFFIRMED.
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