United States v. Darrell Tinsley ( 2009 )

  •                                                  [DO NOT PUBLISH]
                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-16271                ELEVENTH CIRCUIT
                                                                JUNE 26, 2009
                            Non-Argument Calendar
                          ________________________           THOMAS K. KAHN
                      D. C. Docket No. 94-00081-CR-HL-5
                   Appeal from the United States District Court
                       for the Middle District of Georgia
                                 (June 26, 2009)
    Before BLACK, CARNES and BARKETT, Circuit Judges.
          While on supervised release as part of a sentence for a cocaine distribution
    conviction, Darrell Tinsley committed armed robbery. The district court revoked
    Tinsley’s supervised release, imposed a 24-month sentence, and ordered that the
    sentence run consecutive to the 20-year sentence imposed by the state court for the
    robbery offense. Tinsley appeals the district court’s sentence, contending that it is
          Tinsley contends that his 24-month consecutive sentence is unreasonable
    because the district court failed to consider or give adequate weight to several
    factors under 18 U.S.C. § 3553(a) and to articulate reasons for his sentence under
    § 3553(c). The factors outlined in § 3553(a) 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; (7) and the need to provide restitution to victims. See 18 U.S.C. §
    3553(a). Section § 3553(c) requires a district court to “state in open court the
    reasons for its imposition of the particular sentence.”
          We review “the sentence imposed upon the revocation of supervised release
    for reasonableness.” United States v. Velasquez Velasquez, 
    524 F.3d 1248
    , 1252
    (11th Cir. 2008). Reasonableness review is “deferential,” and “the party who
    challenges the sentence bears the burden of establishing that the sentence is
    unreasonable.” United States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005).
          We must first consider whether Tinsley’s 24-month consecutive sentence is
    procedurally unreasonable based on his contention that the district court failed to
    consider the § 3553(a) factors and to adequately explain the chosen sentence. See
    Gall v. United States, 
    552 U.S. 38
    , ___, 
    128 S. Ct. 586
    , 597 (2007). The thrust of
    Tinsley’s contention is that instead of explaining his sentence in terms of the §
    3553(a) factors, the district court explained the sentence by relying solely on an
    allegation in the revocation report that Tinsley continued to use cocaine while on
    supervised release.
          In the petition to revoke his supervised release Tinsley was charged with
    four violations: (1) committing a new violation of law by committing the offense
    of armed robbery; (2) possessing or using cocaine; (3) failing to submit to
    uranalysis; and (4) failing to participate in residential drug treatment. At the
    revocation hearing, Tinsley admitted to the armed robbery and the government
    abandoned the other three violations. Based on that admission the district court
    found that Tinsley had violated the terms and conditions of supervised release.
           During the revocation hearing, the district court referenced Tinsley’s
    continued cocaine use. After the sentence was imposed, Tinsley’s attorney argued
    that referring to that use was improper because Tinsley had not admitted to using
    cocaine and the government had abandoned the three alleged violations from the
    petition relating to that continued use. Tinsley’s attorney conceded that the
    district court was free to consider the entire revocation report including the alleged
    continued cocaine use for sentencing purposes, but objected to the statement of
    that use on the record because it could later be interpreted as a factual finding.
    The district court resolved the concern by retracting a statement it had made.1
    Tinsley argues that after the district court’s statement about his ongoing cocaine
    use is retracted from the record, there is nothing left to explain why his “extreme”
    sentence is justified.
              The retracted statement was: “ I also find an exception to the mandatory revocation
    provisions of 18 U.S.C. § 3583(g) is not warranted based on Mr. Tinsley’s ongoing use of
    cocaine . . .”
          The record reveals, however, that the district court did adequately explain
    how the sentence was supported by the § 3553(a) factors. Although Tinsley
    correctly points out that the district court did not discuss four of the § 3553(a)
    factors, the court was not required to discuss each factor. See Talley, 431 F.3d at
    786. Nor was it required to “explicitly articulate that it had considered the §
    3553(a) factors,” United States v. Dorman, 
    488 F.3d 936
    , 944 (11th Cir. 2007)
    although it did so here. See also United States v. Scott, 
    426 F.3d 1324
    , 1329 (11th
    Cir. 2005) (explaining that 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) factors”).
          Instead, a district court’s rationale is legally sufficient where the record
    makes clear that it has considered the evidence and the arguments. Rita v. United
    551 U.S. 338
    , __, 
    127 S. Ct. 2456
    , 2469 (2007). Here, the district court
    provided Tinsley with the opportunity to present mitigating argument at the
    revocation hearing. The court heard Tinsley’s own statement and his attorney’s
    comments about the nature and circumstances of the offense, the seriousness of
    the offense, and the interests of deterrence. His attorney summarized: “Essentially
    my argument, Your Honor, under all these factors is that [] Tinsley is going to be
    punished enough by spending his 20-year sentence in the state system.”
          In determining Tinsley’s sentence the district court consulted the sentencing
    guidelines. Although Tinsley’s advisory guidelines range would have been 33–41
    months based on a Grade A violation and a criminal history category of VI, that
    range did not apply here because it would have exceeded the maximum term of
    imprisonment authorized by statute. See U.S.S.G. § 7B1.4(b)(3)(A). The district
    court thus imposed a sentence of 24 months, the maximum sentence permitted by
    statute for the offense. The court instructed that the sentence was to run
    consecutive to the 20-year sentence already imposed on Tinsley in state court.
    The court also stated that “the sentence as imposed is an appropriate sentence in
    this case, complies with the factors that are to be considered as set forth at 18
    U.S.C. § 3553(a) and adequately addresses the totality of the circumstances.”
          The Supreme Court has explained that a lengthy discussion is not required
    in the typical case, as long as the sentencing judge “set[s] forth enough to satisfy
    the appellate court that he has considered the parties’ arguments and has a
    reasoned basis for exercising his own legal decisionmaking authority.” Rita, 551
    U.S. at __, 127 S. Ct. at 2468. The district court has set forth enough to satisfy us.
    Cf. United States v. Scott, 
    426 F.3d 1324
    , 1329 (11th Cir. 2005) (explaining that a
    district court’s statement that it had considered the defendant’s arguments and the
    § 3553(a) factors was “sufficient in post-Booker sentences”).
          We next consider whether Tinsley’s sentence is substantively unreasonable
    based on his contention that the district court failed to adequately weigh the §
    3553(a) factors and the circumstances presented by his case. He argues that the
    district court failed to properly weigh his character, the parsimony principle, and
    the need to provide him with educational and vocational training. See 18 U.S.C. §
    3353(a)(1), (a)(2)(C), (a)(2)(D). He also argues that his sentence was not a just
    punishment for his offense. See 18 U.S.C. § 3553(a)(2)(A).
          In considering the substantive reasonableness of a sentence, “we may find
    that a district court has abused its considerable discretion if it has weighed the
    factors in a manner that demonstrably yields an unreasonable sentence.” United
    States v. Pugh, 
    515 F.3d 1179
    , 1191 (11th Cir. 2008). In other words, if the
    district court made a clear error in judgment in weighing the factors, we will
    remand for re-sentencing. Id. Tinsley has not shown this to be such a case.
          We ordinarily expect that sentences that are within the guidelines range will
    be substantively reasonable. See id. Tinsley’s sentence does not exceed the
    bounds of the advisory guidelines range, see U.S.S.G. § 7B1.4, and none of
    Tinsley’s arguments related to the § 3553(a) factors convinces us that the district
    court made a clear error of judgment resulting in an unreasonable sentence.
          Tinsley identifies four § 3353(a) factors that he asserts the district court
    failed to properly consider. He argues that the district court failed to consider both
    his character under § 3353(a)(1) and the need to provide him with educational or
    vocational training under § 3553(a)(2)(D). Tinsley offers no argument for how
    those factors would make his sentence a clear error of judgment, but simply points
    out that the district court did not address them specifically. As we have already
    explained, however, the district court was not required to address each factor. See
    Talley, 431 F.3d at 786.
          Tinsley also argues that the district court failed to adequately consider two
    other factors: (1) whether a lower sentence would have adequately protected
    society under § 3553(a)(2)(C) and (2) whether the maximum statutory sentence
    here was inconsistent with the “just punishment for the offense” provision of §
    3553(a)(2)(A). As to both, he emphasizes that the conduct underlying the
    revocation violation, the armed robbery, already resulted in a 20-year state
    sentence of imprisonment, and argues that an additional 24-month consecutive
    sentence is unreasonably harsh. This argument fails.
          First, the record demonstrates that the district court considered this
    argument at the time of sentencing because Tinsley raised it at the revocation
    hearing in arguing for a concurrent sentence, although in the context of other
    factors. Second, the district court’s decision to impose a 24-month consecutive
    sentence is consistent with the maximum term of imprisonment authorized by
    statute and the policy statement in the sentencing guidelines recommending a
    consecutive term of imprisonment. See 18 U.S.C. § 3553(a)(4), (5); U.S.S.G. §§
    7B1.4(b)(3)(A), 7B1.3(f) (“Any term of imprisonment imposed upon the
    revocation of . . . supervised release shall be ordered to be served consecutively to
    any sentence of imprisonment that the defendant is serving, whether or not the
    sentence of imprisonment being served resulted from the conduct that is the basis
    of the revocation of . . . supervised release.”).
          Tinsley’s 24-month consecutive sentence was procedurally and
    substantively reasonable.