USA v. David Goodman

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13641
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GOODMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-tp-20032-MGC-1
____________________
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2 Opinion of the Court 21-13641
Before R OSENBAUM , GRANT, and LAGOA , Circuit Judges.
PER CURIAM:
David Goodman appeals his 33 months’ sentence imposed
by the district court upon revocation of supervised release. On ap-
peal, he argues that, during the revocation hearing, the district
court failed to address his objection that his criminal history cate-
gory should have been IV, rather than V, based on an inconsistency
between two of the paragraphs in the presentence investigation re-
port (“PSI”) from his original sentencing. For the following rea-
sons, we affirm.
I.
We review the 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 review the rea-
sonableness of a sentence under an abuse of discretion stand-
ard.
United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir.
2013). The burden of establishing unreasonableness lies with the
party challenging the sentence.
Id.
“A ‘non-constitutional error is harmless if, viewing the pro-
ceedings in their entirety, a court determines that the error did not
affect the sentence, “or had but very slight effect.”’”
United States
v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (alterations
adopted) (quoting
United States v. Hornaday, 392 F.3d 1306, 1315–
16 (11th Cir. 2004)).
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21-13641 Opinion of the Court 3
II.
“The criminal history category [for a guideline range based
on a violation of supervised release] is the category applicable at
the time the defendant was originally sentenced to a term of super-
vision.” U.S.S.G. § 7B1.4 cmt. n.1. “The criminal history category
is not to be recalculated [except in] the rare case in which no crim-
inal history category was determined when the defendant origi-
nally was sentenced.”
Id.
Similarly, we have held that a defendant facing incarceration
upon the revocation of supervised release may not challenge the
validity of his original sentence during the revocation proceed-
ings.
United States v. Almand, 992 F.2d 316, 317–18 (11th Cir.
1993). Instead, such challenges may be raised only by collateral at-
tack through a separate proceeding.
Id. at 317.
Here, even if the district court committed the procedural er-
ror of failing to address Goodman’s objection, that error was harm-
less. The district court could not recalculate Goodman’s original
criminal history category based on this new objection to how that
category was determined. Indeed, U.S.S.G. § 7B1.4(a) required that
the district court use “the category determined at the time the de-
fendant originally was sentenced to the term of supervision,”
which here was a category of V. Accordingly, we affirm.
AFFIRMED.
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