United States v. James Calvin Brooks , 495 F. App'x 34 ( 2012 )

Case: 12-10623 Date Filed: 10/31/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10623
Non-Argument Calendar
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D.C. Docket No. 1:99-cr-00072-WBH-JFK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JAMES CALVIN BROOKS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 31, 2012)
Before TJOFLAT, CARNES, and KRAVITCH, Circuit Judges.
PER CURIAM:
Case: 12-10623 Date Filed: 10/31/2012 Page: 2 of 4
James Brooks appeals his sentence of 8 months imprisonment, followed by
28 months supervised release, imposed under 18 U.S.C. § 3583, after the
revocation of his original term of supervised release. Brooks contends for the first
time on appeal that he is entitled to credit for the 7 months he served on his
original term of supervised release before the revocation. He concedes that the
language in § 3583(e)(3) does not authorize such credit. He argues, however, that
this language applies only to revocations based on new felonies and not to the
misdemeanor or other “technical” violations that led to his revocation. He also
contends that his sentence is substantively unreasonable.
We review only for plain error sentencing issues raised for the first time on
appeal. United States v. Doe, 661 F.3d 550, 567 (11th Cir. 2011). “Before an
error is subject to correction under the plain error rule, it must be plain under
controlling precedent or in view of the unequivocally clear words of a statute or
rule; it must have adversely affected the outcome of the proceedings; and it must
be such that the failure to correct it would seriously affect the fairness, integrity or
public reputation of judicial proceedings.” United States v. Lett, 483 F.3d 782,
790 (11th Cir. 2007).
Section 3583(e)(3) provides that “the court may revoke a term of supervised
release . . . without credit for time previously served on postrelease supervision . . .
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.” 18 U.S.C. § 3583(e)(3) (emphasis added). We have held that the plain language
of that provision and the intent of Congress dictate that a defendant is not entitled
to credit for pre-revocation time served on supervised release. United States v.
Gresham, 325 F.3d 1262, 1268 (11th Cir. 2003). That holding applies regardless
of the type of violation of supervised release conditions that leads to the
revocation. The district court did not commit any error, plain or otherwise, by not
crediting Brooks with the 7 months of supervised release that he had already
served before the revocation.
Brooks next contends that his sentence is substantively unreasonable. He
argues that the additional 7-month term of supervised release is unnecessary
because a halfway house is sufficient to satisfy the 18 U.S.C. § 3553(a) factors.
We review for abuse of discretion the reasonableness of a sentence imposed after
revocation of supervised release. United States v. Cunningham, 607 F.3d 1264,
1266 (11th Cir. 2010). The party challenging the sentence bears the burden of
establishing that it is unreasonable in light of the record and the § 3553(a) factors.1
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We will vacate the
sentence only if left with the definite and firm conviction that the district court
1
The district court must consider the sentencing factors set forth in 18 U.S.C. §
3553(a)(1), (a)(2)(B)–(D), and (a)(4)–(7) when sentencing a defendant upon revocation of
supervised release. 18 U.S.C. § 3583(e).
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committed a clear error of judgment in weighing the § 3553(a) factors by imposing
a sentence that lies outside the range of reasonable sentences dictated by the facts
of the case. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
Although we do not automatically presume that a sentence within the guidelines
range is reasonable, we ordinarily expect it to be. United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2008).
The district court sentenced Brooks to 8 months imprisonment, which is at
the low end of his 8 to 14-month guidelines range, with 28 months supervised
release to follow. That sentence is substantively reasonable in light of the record
and the § 3553(a) factors. Brooks concedes that he violated conditions of his
supervised release by consuming alcohol and drugs and failing to undergo
required mental health and substance abuse counseling. The district court noted
that it is in the public’s interest for Brooks to continue on supervised release after
his imprisonment term and in Brooks’ best interest to serve a period of halfway
house confinement as a condition of that release. The district court did not abuse
its discretion in fashioning Brooks’ sentence.
AFFIRMED.
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