United States v. Rictto Jermain White , 252 F. App'x 305 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 24, 2007
No. 07-12578 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00454-CR-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICTTO JERMAINE WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 24, 2007)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
This appeal challenges the reasonableness of the sentence appellant received
– twelve months’ incarceration – following the revocation of his supervised
release, 18 U.S.C. § 3583, for violating four conditions of the release, to-wit: that
he submit written monthly report to the district court’s probation office, follow his
probation officer’s instructions, work regularly at a lawful occupation and provide
proof of his employment, and notify his probation officer within 72 hours of a
change of residence. After the court imposed the 12-months’ sentence, appellant
filed a notice of appeal. He also moved the district court to modify the sentence1
by adding one day in order to make him eligible for the Bureau of Prisons’ good
time credit. The court granted the motion and entered an amended judgment
sentencing appellant to prison for 12 months and one day.
In his brief to this court, appellant concedes that the court adhered to the
Sentencing Guidelines, but argues that its sentence did not comply with the
sentencing factors set forth in 18 U.S.C. § 3553(a). Finally, he asserts that the
mitigating factors he presented – his support of his mother and daughter – show
that imprisonment was unnecessary.
We review a defendant’s total sentence for reasonableness. United States
1
Because the motion to modify did not allege error and did not cite any authority, we
construe it as a motion for reconsideration as provided for by the Supreme Court. See United States
v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir. 1992) (citing United States v. Dieter, 429 U.S. 6, 8-9,
97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976); United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11
L.Ed.2d 527 (1964)). As such, this motion tolled the running of the time to appeal, and appellant’s
notice of appeal was not effective until the district court ruled on the motion. Accordingly, we have
appellate jurisdiction over both the original and amended judgments. Fed. R. App. P. 4(b)(3).
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v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). In doing so, we are guided by
the factors listed in 18 U.S.C. § 3553(a). United States v. Winingear, 422 F.3d
1241, 1246 (11th Cir. 2005). Such review is deferential, requiring us to “evaluate
whether the sentence imposed by the district court fails to achieve the purposes of
sentencing.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
“Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of
supervised release, revoke the term of supervised release and impose a term of
imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”
Sweeting, 437 F.3d at 1107. Specifically, the court must consider, among other
things: (1 )“the nature and circumstances of the offense and the history and
characteristics of the defendant”; (2) “the need for the sentence . . . to afford
adequate deterrence[,] protect the public from further crimes[,] and . . . provide the
defendant with [education or training and medical care or treatment]”; (3) the
Chapter 7 policy statements; and (4) “the need to avoid unwarranted sentence
disparities. 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
and (a)(6); see 18 U.S.C. § 3583(e).
The district court is not required to “state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
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factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). If the court
imposes a sentence within the Guidelines, it is not necessary to give a detailed
explanation of its reasons, as long as it “set[s] forth enough to satisfy [us] that [it]
has considered the parties’ arguments and had a reasoned basis for exercising his
own legal decisionmaking authority.” United States v. Agbai, No. 06-15691, slip
op. at 3522 (11th Cir. Aug. 31, 2007) (quoting Rita v. United States, ___ U.S. ___,
127 S.Ct. 2456, 2468-69, 168 L.Ed.2d 203 (2007)).
At the revocation hearing in this case, appellant did not contest the charges,
and did not object to the district court’s calculation of the Chapter 7 sentence
range of 6-12 months’ imprisonment. Accordingly, the court initially sentenced
him to 12 months’ imprisonment, the top of that range. Although the court did not
specifically mention the § 3553(a) sentencing factors, it did articulate part of its
reasoning. By accurately stating and adopting the Chapter 7 sentence range, it
considered that factor. 18 U.S.C. § 3553(a)(4)-(5). Regarding the “the history and
characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), the court noted that when
it had sentenced appellant on the underlying conviction in 2002, it had imposed a
sentence 10 months below the sentence range. It addressed the “nature and
circumstances of the offense,” id., when it found that appellant’s violations
undermined any expectation that he would not continue to commit criminal
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offenses (although it expressly denied that the sentence was based on post-release
criminal conduct). The court addressed the need to deter appellant’s potential for
criminal behavior, and to protect the public, 18 U.S.C. § 3553(a)(2)(B)-(C), noting
that it hoped the long sentence would demonstrate to appellant that because of his
criminal history, any further violations would result in serious sanctions.
Regarding the additional day that the court, at appellant’s request, added to
his sentence, the court did not comment on its reasoning. In granting the motion,
however, the court implicitly adopted appellant’s reasoning, which was essentially
based on his history and characteristics (the minor and technical nature of his
violations, the fact that they were his first violations, and the fact that he was
helping to support his mother and daughter). In imposing this additional day, the
court varied upward from the Chapter 7 guideline range, but these guidelines are
not binding, Aguillard, 217 F.3d at 1320, and a court may impose a sentence
higher than the prescribed sentence range as long as it is reasonable, which it is.
AFFIRMED.
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