USA v. Stephen John Kontoes

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15517
Non-Argument Calendar
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D.C. Docket No. 1:00-cr-00505-CC-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN JOHN KONTOES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 21, 2015)
Before TJOFLAT, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:
Stephen Kontoes appeals his below-guideline, 18-month sentence, imposed
after he violated the terms of his supervised release. Kontoes argues that this
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sentence was substantively unreasonable in light of his mental health problems, the
time he had already served, and the length of time he did comply with the terms of
his supervised release. After careful consideration, we affirm.
I.
We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Hayes, 762 F.3d 1300, 1307 (11th Cir. 2014). In
conducting that review, we consider the totality of the facts and circumstances.
United States v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013). Our own
judgment should not be substituted for the district court’s, “even though we would
have gone the other way had it been our call.” United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted). The party challenging
the sentence carries the burden of establishing unreasonableness. Kuhlman, 711
F.3d at 1326.
A district court may revoke a defendant’s supervised release and impose a
sentence of imprisonment if it finds that the defendant violated a condition of his
release. 18 U.S.C. § 3583(e)(3). In fashioning a sentence, the court must consult
several factors: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to afford adequate deterrence, to
protect the public from further crimes, and to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment;
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(3) the Sentencing Guidelines range and pertinent policy statements of the
Sentencing Commission; (4) the need to avoid unwarranted sentence disparities
among similarly situated defendants; and (5) the need to provide restitution to any
victims of the offense. 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7). See 18
U.S.C. § 3583(e) (designating these factors).
“The weight to be accorded any given § 3553(a) factor is a matter committed
to the sound discretion of the district court.” United States v. Amedeo, 487 F.3d
823, 832 (11th Cir. 2007) (quotation omitted). The district court need not
explicitly discuss each factor. See United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). We will vacate a sentence only 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.” Irey, 612 F.3d at 1190 (quotation omitted).
II.
In 2000, Kontoes pleaded guilty to one count of bank robbery in violation of
18 U.S.C. § 2113(a). Kontoes qualified as a career offender, and the district court
sentenced him to 151-months imprisonment and 36-months supervised release.
Shortly after beginning this period of supervised release, Kontoes violated its terms
by using a controlled substance and failing to attend counseling. His probation
officer petitioned to modify the supervised release to include a six-month stay in a
halfway house, and the district court granted this motion.
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The modified term was not successful either. Kontoes’s probation officer
petitioned to revoke release again, this time based on several new violations. The
district court took no adverse action, but gave Kontoes the opportunity to correct
his conduct. Once more, Kontoes proved unable to abide by the terms of his
release. On February 25, 2013, he admitted to theft and failure to make restitution
payments. After hearing testimony about Kontoes’s mental health issues and other
struggles, the district court revoked his release, sentenced him to two-weeks
incarceration and six-months supervised release, and ordered him to enter an
employment-assistance program. This lenient sentence was billed by Kontoes’s
counsel as a way to “allow [the court] to bring him back here and sentence him
harshly if he has any other problems on supervised release.”
As it turned out, Kontoes did. Five months into his six-month term of
supervised release, Kontoes was charged with three felonies: two counts of theft by
taking and a forgery charge. He pleaded guilty to all charges. He had also failed
to report for his employment-assistance program. At the resulting revocation
hearing, defense counsel requested that the district court sentence Kontoes to six-
months imprisonment with no additional supervised release. Counsel noted that
Kontoes suffered from mental health issues and was probably motivated to steal by
his poverty, which he was striving to overcome. Addressing the court himself,
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Kontoes elaborated on his struggles with poor mental and physical health,
joblessness, and financial insecurity.
The government noted that the guideline range was 21 to 27 months in
prison (capped by the 24-month statutory maximum), but requested an 18-month
sentence. After considering the guidelines, the § 3553(a) sentencing factors, the
parties’ arguments, and the facts and circumstances of the case, the district court
concluded that a sentence of 18-months imprisonment was “fair, just and
reasonable given the nature and seriousness of the violations.” The court did not
impose any additional term of supervised release. Although the court initially
directed that this sentence run concurrently with Kontoes’s state-court sentence, it
ordered that the sentence run consecutively upon discovering that Kontoes had
served his state sentence. Kontoes preserved his objection to the sentence’s
reasonableness. This appeal followed.
III.
Kontoes has failed to show that the sentence imposed by the district court
was substantively unreasonable. He has identified nothing that leaves us “with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors.” Irey, 612 F.3d at 1190 (quotation
omitted). Rather, he has repeatedly failed to adhere to the terms of his supervised
release despite the court’s leniency on at least two prior occasions. The last time
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Kontoes appeared before the court, he was specifically warned that “this is your
last chance.” None of this caused Kontoes to abide by the terms of his release.
The court was entitled to view Kontoes’s serial misconduct as requiring “adequate
deterrence” in the form of a longer sentence. 18 U.S.C. § 3553(a)(2)(B). The
district court’s decision also spoke to the need, in sentencing defendants for
violations of supervised release, to “sanction primarily the defendant’s breach of
trust.” United States Sentencing Guidelines ch. 7, pt. A, introductory cmt. 3(b).
Kontoes is a many-times repeat offender. He has a lengthy criminal
history—including convictions for armed robbery and bank robbery—that
qualified him as a career offender. The court validly considered “the history and
characteristics of the defendant,” as well as the “need . . . to protect the public from
further crimes.” 18 U.S.C. § 3553(a)(1), (a)(2)(C).
Beyond that, Kontoes’s 18-month sentence fell below the 21- to 27-month
guideline range. While this does not conclusively prove its reasonableness,
“ordinarily we would expect a sentence within the Guidelines range to be
reasonable.” United States v. Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009)
(quotation omitted). We recognize that “there will usually be a range of reasonable
sentences from which the district court may choose,” id. (quotation omitted), and
that district courts possess “institutional superiority . . . with regards to
sentencing,” Hayes, 762 F.3d at 1307. Thus, defendants carry a heavy burden in
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challenging the reasonableness of sentences that fall below the guideline range.
Kontoes has not met that burden.
To the extent that Kontoes merely disagrees with the weight accorded to his
mental illness or poverty, we leave the weighing of § 3553(a) factors to “the sound
discretion of the district court.” Amedeo, 487 F.3d at 832 (quotation omitted).
The court was entitled to find that Kontoes’s serious crimes and repeated failure to
comply with the terms of his supervised release justified a less-lenient, but still
below-guideline, sentence.
Finally, there is no merit to Kontoes’s argument that his sentence should
have been adjusted once the court realized that it could not run concurrently to his
state sentence. A term of imprisonment imposed upon revocation of supervised
release should run “consecutively to any sentence of imprisonment that the
defendant is serving.” USSG § 7B1.3(f); USSG § 7B1.3 cmt. n.4.
On this record, we conclude that Kontoes has failed to show that his
sentence was unreasonable.
AFFIRMED.
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