United States v. Leslie Richardson , 133 F. App'x 604 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 10, 2005
No. 04-14327
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00181-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESLIE RICHARDSON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Alabama
_________________________
(May 10, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Leslie Richardson appeals his 24-month sentence imposed for
violating the terms of his supervised release, 18 U.S.C. § 3583(e). After finding
that Richardson (1) left the district without permission to gamble; (2) used drugs;
(3) assaulted his ex-girlfriend; and (4) failed to pay his monthly fine payment, the
district court considered the Chapter 7 advisory guidelines range of 5 to 11 months
imprisonment, but decided to sentence Richardson to the statutory maximum of
24-months imprisonment based on his criminal history and the testimony that he
was a danger to others while on controlled substances. Richardson argues that the
following mitigating factors, (1) the questionable credibility of his ex-girlfriend;
(2) the nature of his offenses; and (3) the fact that he admitted to drug and
gambling addictions and agreed to counseling, support the conclusion that the
district court’s imposition of a 24-month sentence (the statutory maximum) is
plainly unreasonable.
We review for abuse of discretion a district court’s decision to exceed the
recommended sentencing range upon revocation of supervised release under
Chapter 7 of the United States Sentencing Commission Guidelines Manual. See
United States v. Brown, 224 F.3d 1237, 1239 (11th Cir. 2000). Chapter 7 pertains
to violations of probation and supervised release. See U.S.S.G. § 7B1. The
guideline presents a table of recommended imprisonment ranges for violations of
certain grades at specific criminal history categories. U.S.S.G. § 7B1.4(a). It is
undisputed that Richardson’s violations of supervised release are classified as
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Grade C violations and that his original sentence carried a Criminal History
Category of III. A defendant with that profile would receive a recommended
sentence of 5 to 11 months. See U.S.S.G. § 7B1.4 (a). The district court,
however, also had available statutory maximums as a sentence. The statutory
maximum for a revoked term of supervised release is two years in prison for a
class C felony. 18 U.S.C. § 3583(e)(3).
“We have held that the chapter seven guidelines are merely advisory, and it
is enough that there is some indication the district court was aware of and
considered them.” United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.
2000) (citation omitted). The district court may impose any sentence within the
statutory maximum and a sentence in excess of the Chapter 7 range is permitted so
long as it is within the range imposed by Congress. United States v. Hofierka, 83
F.3d 357, 362-63 (11th Cir. 1996). Moreover, a district court may consider the
rehabilitative needs of a defendant when imposing a sentence exceeding that
recommended by Chapter 7. Brown, 224 F.3d at 1243. We also give great
deference to the district court in making credibility determinations with regard to
witnesses. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)
(citations omitted).
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After reviewing the record, we conclude that the 24-month sentence of
imprisonment resulting from the district court’s revocation of Richardson’s
supervised release is not an abuse of discretion. Although the sentencing
guidelines recommended a term of imprisonment ranging from 5 to 11 months, the
district court was not required to apply the sentencing guidelines because it
explicitly mentioned the guidelines and decided that the recommended sentence
was inadequate under the circumstances. Moreover, a review of the record
establishes that the district court’s credibility findings are supported, and thus we
must give them great deference.
Finally, Richardson did not raise in the district court, in his initial brief, nor
in a motion to file a supplemental brief, a constitutional challenge to the
calculation of his sentence under the Federal Sentencing Guidelines. As such, any
possible claim based on the U.S. Supreme Court’s recent decisions in United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738 ___ L.Ed.2d ___ (2005),1 and
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),
arguably has been abandoned. See United States v. Stinson, 97 F.3d 466, 470 n.2
(11th Cir. 1996) (declining to reach an issue that the defendant abandoned by not
raising it in his initial brief). Even if this court construed Richardson’s fact-based
1
Consolidated with United States v. Fanfan.
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challenged to his sentence as also implicitly presenting a constitutional claim for
the first time on appeal, such a claim would be reviewable only for plain error.
See Booker, 543 U.S. at ___, 125 S.Ct. at 769.
An appellate court may not correct an error the defendant failed to raise in
the district court unless there is: “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781,
1785, 152 L. Ed. 2d 860 (2002) (quotations and internal marks omitted). “If all
three conditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quotations and
internal marks omitted).
No plain error exists in this case because the first prong of the test is not
satisfied. The guidelines system concerning revocation of supervised release
under which Richardson’s sentence was imposed is advisory, not mandatory. See
Aguillard, 217 F.3d at 1320 (“chapter 7 guidelines are merely advisory”). Thus,
there was no Booker error. Moreover, persuasive authority from the Second
Circuit has held that remand was not necessary in a revocation case in which a
two-year sentence was imposed upon revocation of supervised release because,
even though the revocation sentence was imposed pre-Booker, the district court, as
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noted in the instant case as well, appreciated the fact that the guideline sentencing
regime was advisory with respect to revocation of supervised release. See United
States v. Fleming, No. 04-1817, 2005 WL 23720 (2d Cir. Feb. 2, 2005).
For the above stated reasons, we affirm Richardson’s sentence.
AFFIRMED.
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BARKETT, Circuit Judge, concurring:
I concur in the result.
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