USA v. Brantley Seymore

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11990
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANTLEY SEYMORE,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cr-00111-SPC-MRM-1
____________________
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2 Opinion of the Court 21-11990
____________________
No. 21-11991
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANTLEY SEYMORE,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:12-cr-00058-JES-MRM-1
____________________
Before JORDAN, NEWSOM and DUBINA, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Appellant Brantley Seymore,
proceeding with counsel, appeals the district court’s imposition of
his total sentence of 24 months’ imprisonment upon revocation of
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21-11990 Opinion of the Court 3
his supervised release as well as his sentence of 151 months’ impris-
onment for possessing a substance containing cocaine base with in-
tent to distribute. He argues that his sentence imposed pursuant
to the revocation of his supervised release is procedurally unrea-
sonable because the district court failed to calculate or consider the
guideline range for his supervised release violations. He argues
that we should vacate all his sentences pursuant to the court’s al-
leged procedural error, but he does not raise any arguments specif-
ically challenging his sentence of 151 months’ imprisonment for
possession with intent to distribute. Having read the parties’ briefs
and reviewed the record, we affirm the district court’s imposition
of Seymore’s 24 months’ sentence following revocation of his su-
pervised release and his 151 months’ sentence for his drug offense
and remand the case for the limited purpose of correcting the judg-
ment.
I.
We review a sentence imposed upon the revocation of su-
pervised release for reasonableness.
United States v. Velasquez Ve-
lasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). We generally review
errors that a defendant did not raise in the district court for plain
error, and he must establish that there was a plain error that af-
fected his substantial rights.
Rosales-Mireles v. United States, ___
U.S. ___, ___, 138 S. Ct. 1897, 1904-05 (2018). To satisfy the third
prong, a defendant generally must show that there is a reasonable
probability that the outcome of the proceeding would have been
different if the error had not occurred.
Id. The burden of showing
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4 Opinion of the Court 21-11990
the third prong is difficult, and a defendant cannot meet it if the
effect of an alleged error is uncertain.
United States v. Rodriguez,
398 F.3d 1291, 1299-1300 (11th Cir. 2005). The third prong is met
upon a showing that the court calculated an incorrect guideline
range.
Molina-Martinez v. United States, 578 U.S. 189, 198-99, 136
S. Ct. 1338, 1345-46 (2016). If those three conditions are met, we
exercise our discretion to correct an error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
Rosales-Mireles, ___ U. S. at ___, 138 S. Ct. at 1905. The risk of
unnecessary deprivation of liberty resulting from a plain guidelines
error undermines the fairness, integrity, and reputation of proceed-
ings.
United States v. Bankston, 945 F.3d 1316, 1320 (11th Cir.
2019).
II.
Failing to calculate a defendant’s guideline range is a sub-
stantial procedural error.
Gall v. United States, 552 U.S. 38, 51, 128
S. Ct. 586, 597 (2007). When a district court imposes a sentence
after revoking a defendant’s supervised release, it must consider
the sentencing range established by the applicable guidelines or
policy statement.
United States v. Campbell, 473 F.3d 1345, 1348
(11th Cir. 2007). Because the guidelines have always been advisory
for sentences imposed upon revocation of supervised release, the
court sufficiently considers the sentencing range if there is some
indication that it evaluated the guidelines.
Id. at 1348-49. In
Camp-
bell, we held that a district court erred where we could not deter-
mine from the record whether it considered the guideline range
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21-11990 Opinion of the Court 5
because it failed to mention the range, the guidelines, or the crimi-
nal classification of the defendant’s original crime.
Id. at 1349.
We deem an issue not prominently raised on appeal or
raised without supporting arguments and authorities abandoned
but can consider the issue
sua sponte if a forfeiture exception ap-
plies and extraordinary circumstances warrant review.
See United
States v. Smith, 967 F.3d 1196, 1204 n.5 (11th Cir. 2020),
cert. de-
nied, ___ U. S. ___, 141 S. Ct. 2538 (2021);
United States v. Camp-
bell, 26 F.4th 860, 873 (11th Cir. 2022) (
en banc),
petition for cert.
filed (U.S. May 17, 2022) (No. 21-1468). An issue raised for the first
time in a reply brief is abandoned.
United States v. Durham, 795
F.3d 1329, 1330-31 (11th Cir. 2015) (
en banc).
III.
The record demonstrates that the district court did not
plainly err in imposing a 24-month sentence following the revoca-
tion of Seymore’s supervised release. Because Seymore did not ob-
ject at the sentencing hearing that the district court failed to calcu-
late his guidelines range, we review the issue under plain error.
See
Rosales-Mireles, ___ U.S. at ___, 138 S. Ct. at 1904-05. We con-
clude that Seymore has not met his burden of showing plain error.
First, Seymore has not shown an error that was plain. The
government asserts and Seymore does not dispute, that the proba-
tion officer produced a memorandum calculating a guideline range
of 24 to 30 months’ imprisonment and concluding that Seymore
was charged with a grade A violation and had a criminal history
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6 Opinion of the Court 21-11990
category of IV. The sentencing transcript indicates that the district
court considered the guidelines and sentencing policy statements
after imposing sentence for Seymore’s supervised release viola-
tions, which provides some indication that it considered the guide-
lines, as required by
Campbell.
See Campbell, 473 F.3d at 1348-49.
The district court also mentioned that it reviewed the advisory
guideline range and determined that a sentence at the low end of
the guideline range was appropriate, although it did not specify if
it was referring to the violation of his supervised release or his new
offense, or both. The district court’s imposition of a 24-month sen-
tence for the supervised release violation was at the bottom of the
guideline range provided by the probation officer in the memoran-
dum.
Furthermore, Seymore has not shown an effect on his sub-
stantial rights because the court imposed a sentence at the bottom
of the apparent guideline range, which Seymore does not contest
on appeal, and there is no indication that the court was inclined to
vary downward.
See Rodriguez, 398 F.3d at 1299-1300. Seymore
merely asserts in conclusory fashion that there is a reasonable prob-
ability that the district court would have arrived at a different sen-
tence if it had calculated and considered the guideline range. This
does not establish substantial prejudice. We note that Seymore ar-
gues for the first time in his reply brief that the court considered
the incorrect guidelines, but he has abandoned that argument by
failing to raise it in his initial brief.
See Durham, 795 F.3d at 1330-
31. Thus, he has failed to show plain error, and we affirm his
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21-11990 Opinion of the Court 7
sentence of 24-months’ imprisonment for violation of supervised
release.
Seymore appeals his 151-month sentence for his drug of-
fense; however, he proffers no argument in his appellate brief chal-
lenging this sentence. Therefore, we affirm that sentence as well.
Although we affirm Seymore’s sentences, there is a clerical
error in his supervised release revocation judgment. We may
sua
sponte raise the issue of a clerical error in a judgment and remand
with instructions to correct the error.
See United States v. Massey,
443 F.3d 814, 822 (11th Cir. 2006). His revocation judgment de-
scribed his first violation as a new criminal activity violating 21
U.S.C. § 841(b)(c). There is no such subsection.
See 21 U.S.C.
§ 841(b). The violation was based on the same conduct for which
he was charged in an indictment with a violation of § 841(b)(1)(c),
which penalizes violations of § 841(a)(1) involving a controlled sub-
stance in schedule I or II.
See § 841(b)(1)(c). Thus, we remand to
the district court with instructions to amend the revocation judg-
ment to correct the clerical error.
AFFIRMED IN PART; REMANDED IN PART
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