United States v. Damian Michael Dawson , 328 F. App'x 606 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________ ______ FILED
U.S. COURT OF APPEALS
No. 08-16155 ELEVENTH CIRCUIT
MAY 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-00358-CR-UWS-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMIAN MICHAEL DAWSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 21, 2009)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Damian Michael Dawson appeals the revocation of his term of supervised
release under 18 U.S.C. § 3583(e)(3) and the corresponding eight-month sentence
imposed for violating the conditions of the supervised release. He raises two
arguments on appeal. First, Dawson argues that the district court abused its
discretion in revoking his supervised release because the district court’s finding
that Dawson had violated the conditions of supervision was not supported by a
preponderance of the evidence. Second, Dawson argues that the district court’s
imposition of an eight-month sentence was “substantively unreasonable” because
the court neither explicitly mentioned nor discussed the 18 U.S.C. § 3553(a)
factors.1
I.
We review for abuse of discretion the district court’s conclusion that the
defendant violated the terms of his supervised release. U.S. v. Copeland, 20 F.3d
412, 413 (11th Cir. 1994). We are bound by the district court’s findings of fact
unless they are clearly erroneous. U.S. v. Almand, 992 F.2d 316, 318 (11th Cir.
1993). A district court may “revoke a term of supervised release . . . if the court . .
. finds by a preponderance of the evidence that the defendant violated a condition
1
Although Dawson refers to substantive unreasonableness in his brief, his only argument
concerns procedural reasonableness. Therefore, he has abandoned any substantive
reasonableness argument. U.S. v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
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of supervised release . . . .” 18 U.S.C. 3583(e)(3). The government bears the
burden of proving that the defendant violated a condition of supervised release.
See U.S. v. Holland, 874 F.2d 1470, 1472-73 (11th Cir. 1989). In a review of a
probation revocation, we have held that “all that is required is that the evidence
reasonably satisfy the judge that the conduct of the probationer has not been as
good as required by the conditions of probation; evidence that would establish guilt
beyond a reasonable doubt is not required.” U.S. v. Robinson, 893 F.2d 1244,
1245 (11th Cir. 1990) (quotation and citation omitted).
The testimony at Dawson’s revocation hearing established by a
preponderance of the evidence that Dawson failed to comply with the conditions of
his release. Testimony by multiple witnesses demonstrated that Dawson had failed
to work, to attend drug treatment, and to complete a residential re-entry center’s
drug treatment program, as required by the district court.2 In addition, Dawson
himself admitted that he was unemployed and did not seek employment from
December 2007 until February 2008 and that he attended drug treatment only
sporadically, rather than to completion. Although Dawson argued at the hearing
2
This was Dawson’s second revocation hearing. The first took place on December 12,
2007 during which Dawson admitted to violating some of the conditions of his release and was
granted a six-month continuance “to straighten out.” The district court advised Dawson that he
would go to jail if he violated the terms of his supervised release during that period. On
September 10, 2008, Dawson’s probation officer moved for a warrant or summons on the
grounds that Dawson had failed to comply with the conditions of his release between December
2007 and February 2008.
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that he had substantially complied with the terms of his release, the district court
did not abuse its discretion in rejecting Dawson’s argument and finding that
Dawson had willfully violated the conditions.
II.
We review “the sentence imposed upon the revocation of supervised release
for reasonableness.” U.S. v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir.
2008). When reviewing a sentence, we must first determine that the “district court
committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
[or] failing to consider the § 3553(a) factors.” Gall v. U.S., 552 U.S. ___, ___, 128
S. Ct. 586, 597 (2007).3
Based on our review, we believe the record demonstrates that the district
court heard and took into account the evidence and arguments presented, see Rita
v. U.S., 551 U.S. 338 (2007), and adequately considered the § 3553(a) factors.4
3
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence (A) to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense, (B) to afford adequate deterrence to criminal conduct, (C) to protect the public from
further crimes of the defendant, and (D) to provide the defendant with needed educational or
vocational training or medical care; (3) the kinds of sentences available; (4) the Sentencing
Guidelines range; (5) pertinent policy statements of the Sentencing Commission; (6) the need to
avoid unwarranted sentencing disparities; and (7) the need to provide restitution to victims. See
18 U.S.C. § 3553(a).
4
Dawson challenges the procedural reasonableness of his sentence for the first time on
appeal. Ordinarily, we review objections to sentencing issues not raised in the district court for
4
First, the court heard testimony by multiple witnesses, as well as argument by
Dawson regarding, among other things, his substantial compliance with the terms
of his supervised release. In pronouncing its sentence, the court found, based on
the testimony presented and Dawson’s own admissions, that Dawson had willfully
violated the terms of his supervised release and that the violation was particularly
serious in light of the court’s warning at the first revocation hearing that Dawson
would face prison time if the violations continued. Therefore, we believe the
record makes clear that the court sentenced Dawson to eight months of prison time
based on the individual circumstances of Dawson’s case and in order to make sure
that he took the terms of his release seriously, to deter him from future violations,
to promote respect for the rule of law, and to provide just punishment.
Moreover, Dawson’s eight-month sentence (at the low end of the Guideline
range) had in fact been requested both by the government and defense counsel.
Therefore, Dawson invited the sentencing error he now challenges, and, absent
extraordinary circumstances, we will not disturb the district court’s sentence. See
U.S. v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (doctrine of invited error
“precludes a court from invoking the plain error rule and reversing”) (quotation
plain error. U.S. v. Zinn, 321 F.3d 1084, 1088 (11th Cir. 2003). However, we need not address
the appropriate standard of review in this case, because, as discussed below, Dawson’s argument
fails under both reasonableness review and the invited error doctrine.
5
and citation omitted); U.S. v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (noting
that appellate courts ordinarily will not review an error invited by the defendant
“on the rationale that the defendant should not benefit from introducing error at
trial with the intention of creating grounds for reversal on appeal”).
The judgment of the district court is
AFFIRMED.
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