Kenton D. Purvis v. United States , 619 F. App'x 804 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15661
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00263-SDM-TGW-1
KENTON D. PURVIS,
Defendant-Appellant,
versus
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 14, 2015)
Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Kenton Purvis appeals his 24-month sentence, imposed for violating
conditions of his supervised release. Purvis raises three issues on appeal, which we
address in turn. After review, we affirm Purvis’s sentence.
I. DISCUSSION
As the parties are familiar with the facts of this case, we will not recount
them in detail. We include only those facts necessary to the discussion of each
issue.
A. Felon in possession of firearm charge
Purvis first asserts the district court committed plain error by considering
that he was originally indicted for, but not convicted of, a charge of being a felon
in possession of a firearm in its imposition of sentence.
Where, as here, a defendant does not raise an objection to the district court’s
consideration of an impermissible factor at the time of sentencing, this Court
reviews for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th
Cir. 2014). Plain error occurs when there is (1) an error, (2) that is plain, (3) that
affect substantial rights, and (4) that error seriously affects the fairness or integrity
of judicial proceedings. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir.
2010). “A substantial right is affected if the appealing party can show that there is
a reasonable probability that there would have been a different result had there
been no error.” United States v. Bennett, 472 F.3d 825, 831-32 (11th Cir. 2006).
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The district court is free to consider any information relevant to a
defendant’s “background, character, and conduct” in imposing an upward variance.
United States v. Tome, 611 F.3d 1371, 1379 (11th Cir. 2010) (holding it was proper
for the district court to take into account a withheld adjudication in imposing an
upward variance because it was relevant to the defendant’s background, character,
and conduct). However, the district court may take uncharged or acquitted conduct
into account in sentencing only if such conduct is proven by a preponderance of
the evidence. United States v. Faust, 456 F.3d 1342, 1347-48 (11th Cir. 2006).
The district court did not commit plain error. Although the district court did
not make a finding the prior charge was proven, there was no substantial rights
violation because Purvis admitted facts establishing his guilt as to that prior charge.
His plea agreement included his admission the police recovered a firearm from him
when he was arrested following a controlled drug buy. In addition, the presentence
investigation report (PSI), to which he did not object, stated he was a felon and
possessed a firearm while his rights had not been restored. See Bennett, 472 F.3d
at 832 (“A sentencing court’s findings of fact may be based on undisputed
statements in the PSI.”); United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.
2006) (stating a defendant who does not object to the facts in the PSI is deemed to
have admitted them for sentencing purposes). As a result, Purvis cannot establish
plain error.
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B. Need for rehabilitation
Next, Purvis contends the district court abused its discretion by improperly
considering his welfare and rehabilitation when imposing its sentence of
imprisonment. He explains the district court stated it sentenced Purvis based on
the need to “protect him from himself” and “give him the maximum time available
to regain his sobriety.”
As an initial matter, Purvis failed to preserve this argument before the
district court because he did not inform the district court of the legal basis he now
argues. “[F]or a defendant to preserve an objection to her sentence for appeal, she
must raise that point in such clear and simple language that the trial court may not
misunderstand it. When the statement is not clear enough to inform the district
court of the legal basis for the objection, we have held that the objection is not
properly preserved.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006)
(quotation and citation omitted). We applied plain error review in Vandergrift,
where the appellant argued on appeal that the district court improperly considered
rehabilitation in sentencing him to imprisonment, but did not do so before the
district court. 754 F.3d at 1307, 1309-1312.
In Tapia v. United States, 131 S. Ct. 2382, 2391 (2011), the Supreme Court
held a sentencing court may not impose or lengthen a prison term in order to
promote an offender’s rehabilitation. In Vandergrift, we extended Tapia’s holding
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to a term of imprisonment imposed after the revocation of supervised release.
Vandergrift, 754 F.3d at 1309.
In Vandergrift, the defendant served a prison sentence for possession and
distribution of child pornography. Id. at 1305. His supervised release was later
revoked and the district court sentenced him to 24 months’ imprisonment. Id. at
1306. We determined the district court erred in considering rehabilitation when it
imposed Vandergrift’s sentence and assumed for the sake of analysis the error was
plain. Id. at 1310-12. Nevertheless, we affirmed because Vandergrift had failed to
prove the third prong of the plain error test—the error affected his substantial
rights. See id. at 1312. Specifically, Vandergrift failed to show his sentence would
have been different, because the sentencing transcript reflected that his
rehabilitative needs constituted only a minor portion of the district court’s
reasoning. Id. We explained, “[t]he [district] court’s primary considerations were
for the safety of the public and deterring others from similar conduct.” Id.
We will assume without deciding that the district court committed error that
is plain by considering rehabilitation in imposing Purvis’s sentence. However,
Purvis has not established this error affected his substantial rights by showing a
reasonable probability he may have received a lower sentence but for the district
court’s error. Like the court in Vandergrift, the district court considered
rehabilitation in imposing a sentence of imprisonment, but this consideration only
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reflected a minor portion of the court’s reasoning. The district court primarily
focused on the seriousness and continuing nature of Purvis’s violations, public
safety, and the need to deter him from further criminal activity. Therefore, Purvis
cannot establish plain error.
C. Substantive reasonableness
Purvis argues his 24-month sentence is substantively unreasonable. We
review the reasonableness of a sentence using a deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007).
If a defendant violated a condition of supervised release, the district court
may, after considering certain factors set forth in § 3553(a), revoke the supervised
release, and impose a term of imprisonment on the defendant for the offense that
resulted in the term of supervised release. 18 U.S.C. § 3583(e)(3). These factors
include the nature and circumstances of the offense and the history and
characteristics of the defendant, the need for the sentence imposed to afford
adequate deterrence to criminal conduct and to protect the public from further
crimes of the defendant, the applicable guideline range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.
§ 3553(a)(1), (a)(2)(B)-(C), (a)(4)-(7).
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The district court did not abuse its discretion in sentencing Purvis to an
above-the-guidelines, statutory maximum sentence of 24 months’ imprisonment.
While Purvis received a sentence at the statutory maximum, well above the top-end
of the advisory guidelines range of 8 to 14 months, above-guidelines sentences do
not result in a presumption of unreasonableness. See Gall, 552 U.S. at 47. While
the district court must have a justification compelling enough for an upward
variance to the statutory maximum, “we will vacate such 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 by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012). Here, the district
court presented a justification compelling enough for an upward variance to the
statutory maximum.
It is uncontested the district court adjudicated Purvis in violation of his
supervised release based on six violations. Despite receiving a continuance of his
initial revocation hearing with a warning he would go to prison if he committed
another violation, Purvis not only continued to violate his supervised release, but
committed one of the same violations as he did earlier (testing positive for
marijuana). Furthermore, several of the later violations were of a serious nature,
including fleeing from the police, which placed the police officers and bystanders
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in danger. Purvis’s sentence reflected the nature and circumstance of the offense,
the need to protect the public from his actions, and the need to deter him from
further criminal activity after his repeated violations of supervised release. See 18
U.S.C. § 3553(a)(1), (a)(2)(B)-(C). As a result, Purvis’s sentence is not a clear
error of judgment and not outside the range of reasonable sentences in light of the
totality of the circumstances and § 3553(a) factors. See United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (en banc) (explaining a district court abuses its
discretion and imposes a substantively unreasonable sentence when it fails to
afford consideration to relevant factors that were due significant weight, gives
significant weight to an improper or irrelevant factor, or commits a clear error of
judgment in considering the proper factors). Purvis’s sentence is substantively
reasonable.
II. CONCLUSION
Accordingly, Purvis’s sentence is AFFIRMED.
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