United States v. Thomas Anthony Crandall , 270 F. App'x 796 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-14908 March 19, 2008
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00010-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS ANTHONY CRANDALL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 19, 2008)
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and ALTONAGA,*
District Judge.
PER CURIAM:
*
Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of
Florida, sitting by designation.
Thomas Crandall appeals his 36-month sentence, imposed upon revocation
of his supervised release. He argues, for the first time on appeal, that during
sentencing the district court impermissibly considered (1) the leniency of his
underlying sentence as originally imposed, and (2) the fact that his underlying
sentence was foreshortened for good behavior and his completion of a drug
treatment program. Finding that the district court did not commit plain error, we
affirm Crandall’s sentence.
In 2002, Crandall was sentenced by a federal district court to a prison term
of 51 months to be followed by four years of supervised release. After serving
approximately 31 months of his underlying sentence, he was put on supervised
release, his time in jail reduced for good behavior and for completing the Bureau of
Prison’s residential drug treatment program. Soon after his release, Crandall sent
explicit material to an undercover officer posing as a fifteen-year-old boy, a crime
for which he was convicted by a Florida court.
As a result of this conviction, the district court revoked Crandall’s
supervised release and sentenced him to 36 months’ imprisonment. The district
court did not find whether his guideline range should be computed based on a
Grade A or Grade B violation of his supervised release, concluding that in either
case, an above guideline sentence was appropriate. In making this determination,
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the district court stated that it considered, in part, the following factors: (1) “the
fact that the sentence [Crandall] actually served in federal custody [was]
significantly below the guideline range that would otherwise have been computed
had [Crandall not been given] the benefit of the doubt on a number of sentencing
issues”; and (2) “the foreshortening of the sentence that was originally intended
and should have been served by [Crandall].”
Crandall did not take issue with the court’s consideration of these factors
below. When asked whether Crandall’s counsel had any objections to the district
court’s findings of fact or conclusions of law, counsel responded, “Yes . . . . We
would object to the sentence imposed outside the guidelines.” The district court
then asked counsel whether he would like to elaborate further, to which he
responded, “Just that, Your Honor. And we would also say that the court didn’t
really rule on whether it was [a Grade] A or B [violation], but we would argue it is
a [Grade] B violation.” At no time below did Crandall mention the two factors he
takes issue with on appeal.
Whether the district court relied on an impermissible factor during
sentencing is a question of law that we will review de novo. United States v.
Williams, 456 F.3d 1353, 1361 (11th Cir. 2006). However, where a defendant does
not clearly state the grounds for an objection before the district court, review on
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appeal is limited to plain error. United States v. Zinn, 321 F.3d 1084, 1087 (11th
Cir. 2003).
Crandall did not adequately specify below his objection to the factors relied
on by the district court. We have described the specificity required as follows:
Whenever a litigant has a meritorious proposition of law which he is
seriously pressing upon the attention of the trial court, he should raise
that point in such clear and simple language that the trial court may
not misunderstand it, and if his point is so obscurely hinted at that the
trial court quite excusably may fail to grasp it, it will avail naught to
disturb the judgment on appeal. Thus, if a defendant fails to clearly
articulate a specific objection during sentencing, the objection is
waived on appeal and we confine our review to plain error.
Id. at 1087-88 (citations and internal quotation marks omitted) (quoting United
States v. Riggs, 967 F.2d 561, 564 (11th Cir. 1992)).
In no way did Crandall’s objections take issue with the factors relied on by
district court when sentencing him, let alone “clearly articulate” any objection to
the district court’s consideration of the leniency and foreshortening of his
underlying sentence. See Zinn, 321 F.3d at 1088. Furthermore, Crandall
specifically declined the district court’s invitation for him to “elaborate further”
upon his objection. At best, his objection to the factors, if any, was “so obscurely
hinted at[,] that the trial court quite excusably [failed] to grasp it” and, accordingly,
we will disturb the judgment only for plain error. Id.
An error cannot meet the “plain” requirement of the plain error rule unless it
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is “clear under current law.” United States v. Humphrey, 164 F.3d 585, 588 (11th
Cir. 1999). Where “neither the Supreme Court nor this Court has ever resolved an
issue, and other circuits are split on it, there can be no plain error in regard to that
issue.” United States v. Aguillard, 217 F.3d 1319, 1321 (per curiam) (11th Cir.
2000) (citing Humphrey, 164 F.3d at 587).
At the time of sentencing, it was by no means clear under our current
precedent that a court could not consider the leniency and foreshortening of a
defendant’s underlying sentence when sentencing him after a revocation of his
supervised release.1 In fact, depending on the circumstances, these two factors
may or may not be relevant during the court’s inquiry into “the nature and
circumstances of the offense,” the defendant’s “history and characteristics,” the
need to “afford adequate deterrence,” or the need to “protect the public from
further crimes.” At best, the law of this Circuit was unclear as to whether
consideration of the leniency or foreshortening of a defendant’s underlying
sentence fails to achieve the purposes of § 3553(a), and therefore, the district court
1
When sentencing a defendant upon revocation of supervised release, a court must
consider: (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 policy statements in chapter seven of the Sentencing Guidelines; (4) the need
to avoid unwarranted sentence disparities; and (5) the need to provide restitution to any victims
of the offense. See 18 U.S.C. § 3583(e) (providing that the court may revoke a term of
supervised release after considering the sentencing factors set forth in 18 U.S.C. § 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)).
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did not plainly err in considering these factors.2
AFFIRM.
2
To the extent Crandall takes issue with the substantive reasonableness of his sentence,
we also conclude that Crandall’s 31-month sentence was substantively reasonable as it was
based on a careful consideration of the relevant § 3553(a) factors and well below the five-year
statutory maximum.
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