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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 21-10368
Non-Argument Calendar
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D.C. Docket No. 8:05-cr-00406-WFJ-AAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN BARNES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 27, 2021)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Alvin Barnes appeals his 24-month sentence imposed upon revocation of his
term of supervised release under
18 U.S.C. § 3583(e). He argues that the district
court plainly erred by not recognizing its authority to reduce his revocation
sentence by the amount that he allegedly overserved his custodial sentence under
the First Step Act of 2018, Pub. L. No. 115-391, § 404(b),
132 Stat. 5194, 5222
(“First Step Act”), and the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124
Stat. 2372 (“Fair Sentencing Act”). He also argues that his within-guideline
sentence is substantively unreasonable.
I.
We review de novo issues of statutory interpretation. United States v.
Maupin,
520 F.3d 1304, 1306 (11th Cir. 2008). We review a district court’s
revocation of supervised release for an abuse of discretion. United States v.
Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014). However, when a defendant
asserts a sentencing argument for the first time on appeal, we review only for plain
error. United States v. Aguillard,
217 F.3d 1319, 1320 (11th Cir. 2000).
Under a plain error standard, the defendant bears the burden to “show that
there is (1) error, (2) that is plain and (3) that affects substantial rights.” United
States v. Turner,
474 F.3d 1265, 1276 (11th Cir. 2007) (quotation marks omitted).
“If all three conditions are met, [we] may then exercise [our] discretion to notice a
forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
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public reputation of judicial proceedings.”
Id. (quotation marks omitted).
Regarding the second prong of the test, “[s]uch error must be so clearly established
and obvious that it should not have been permitted by the trial court even absent
the defendant’s timely assistance in detecting it.” United States v. Hesser,
800
F.3d 1310, 1325 (11th Cir. 2015) (quotation marks omitted). “When the explicit
language of a statute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court or [us] directly
resolving it.” United States v. Castro,
455 F.3d 1249, 1253 (11th Cir. 2006)
(quotation marks omitted).
District courts lack the inherent authority to modify a term of imprisonment
but may do so to the extent that a statute expressly permits.
18 U.S.C.
§ 3582(c)(1)(B); see United States v. Jones,
962 F.3d 1290, 1297 (11th Cir.
2020), cert. denied,
209 L. Ed. 2d 758 (2021). The First Step Act expressly
permits district courts to reduce a previously imposed term of imprisonment.
Jones, 962 F.3d at 1297.
The Fair Sentencing Act, enacted on August 3, 2010, amended
21 U.S.C.
§§ 841(b)(1) and 960(b) to reduce the sentencing disparity between crack and
powder cocaine. See Fair Sentencing Act; Dorsey v. United States,
567 U.S. 260,
268-69 (2012) (detailing the history that led to the enactment of the Fair
Sentencing Act, including the Sentencing Commission’s criticisms that the
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disparity between cocaine base and powder cocaine offenses was disproportional
and reflected race-based differences). Section 2 of the Fair Sentencing Act
changed the quantity of cocaine base necessary to trigger a 5-year mandatory
minimum from 5 grams to 28 grams. Fair Sentencing Act § 2(a)(2);
21 U.S.C.
§ 841(b)(1)(B)(iii). Thus, possession of less than 28 grams of cocaine base now
falls under the purview of
21 U.S.C. § 841(b)(1)(C). See Fair Sentencing Act
§ 2(a);
21 U.S.C. § 841(b)(1)(C). These amendments were not made retroactive to
defendants who were sentenced before the enactment of the Fair Sentencing Act.
United States v. Berry,
701 F.3d 374, 377 (11th Cir. 2012).
In 2018, Congress enacted the First Step Act, which made retroactive for
covered offenses the statutory penalties enacted under the Fair Sentencing Act.
See First Step Act § 404. Under § 404(b) of the First Step Act, “[a] court that
imposed a sentence for a covered offense may . . . impose a reduced sentence as if
sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the
covered offense was committed.” Id. § 404(b). The statute defines “covered
offense” as “a violation of a Federal criminal statute, the statutory penalties for
which were modified by section 2 or 3 of the Fair Sentencing Act . . . , that was
committed before August 3, 2010.” Id. § 404(a). The First Step Act further states
that “[n]othing in this section shall be construed to require a court to reduce any
sentence pursuant to this section.” Id. § 404(c); see also Jones, 962 F.3d at 1304
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(describing the First Step Act as “an act of legislative grace left to the discretion”
of the courts).
A district court may revoke a defendant’s supervised release and require him
to serve all or part of his term in prison if it “finds by a preponderance of the
evidence that the defendant violated a condition of supervised release.”
18 U.S.C.
§ 3583(e)(3). Revocation of supervised release is not punishment for a defendant’s
new offenses that violate the conditions of his supervised release. Johnson v.
United States,
529 U.S. 694, 699-701 (2000). Rather, post-revocation penalties are
“treat[ed] . . . as part of the penalty for the initial offense.”
Id. at 700-01; see also
United States v. Haymond,
139 S. Ct. 2369, 2380 (2019) (reaffirming Johnson and
stating that, when a defendant receives a term of supervised release for his initial
offense, “whether that release is later revoked or sustained, it constitutes a part of
the final sentence for his crime”).
As an initial matter, the parties correctly acknowledge that plain error review
applies to this issue.
Here, even assuming arguendo that the district court erred in failing to
acknowledge its authority under the First Step Act to reduce Barnes’s revocation
sentence in light of his allegedly overserved custodial sentence, any error cannot be
plain because the First Step Act is silent as to this overserved issue, and there is no
precedent on the matter. Accordingly, we affirm as to this issue.
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II.
We review a revocation sentence for reasonableness. United States v.
Velasquez,
524 F.3d 1248, 1252 (11th Cir. 2008). The party challenging the
substantive reasonableness of the sentence bears the burden of establishing that it
is unreasonable based on the record, the
18 U.S.C. § 3553(a) factors, and the
substantial deference afforded to sentencing courts. United States v.
Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015).
Under
18 U.S.C. § 3583, a court must consider the following
18 U.S.C.
§ 3553(a) factors when determining what sentence to impose upon the revocation
of supervised release: “the nature and circumstances of the offense and the history
and characteristics of the defendant”; the need to afford adequate deterrence,
protect the public, and provide the defendant with appropriate correctional
treatment; the kinds of available sentences; the applicable Guidelines range; any
pertinent policy statement; the need to avoid unwarranted sentencing disparities;
and the need to provide restitution to victims.
18 U.S.C. §§ 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), (a)(7) & 3583(e)(3).
The weight given to any particular Ҥ 3553(a) factor is a matter committed
to the sound discretion of the district court,” and it can give “great weight to one
factor over others.” United States v. Riley,
995 F.3d 1272, 1279 (11th Cir. 2021)
(quotation marks omitted); see United States v. Sweeting,
437 F.3d 1105, 1107
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(11th Cir. 2006) (stating, in the supervised release context, that “the district court
adequately considered the § 3553(a) factors in arriving at [the defendant’s]
sentence, including his criminal history and his threat to the public”). District
courts do not need to address “each of the § 3553(a) factors or all of the mitigating
evidence.” United States v. Taylor,
997 F.3d 1348, 1354 (11th Cir. 2021). Instead,
an acknowledgement by the district court that it considered the § 3553(a) factors
and the parties’ arguments is sufficient. Id. at 1354-55.
A district court “imposes a substantively unreasonable sentence only when it
(1) fails to afford consideration to relevant factors that were due significant weight,
(2) gives significant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” Rosales-Bruno, 789
F.3d at 1256 (quotation marks omitted). Although we do not automatically
presume a sentence falling within the guideline range is reasonable, we ordinarily
expect such a sentence to be reasonable. United States v. Hunt,
526 F.3d 739, 746
(11th Cir. 2008). Further, a sentence is not unreasonable merely because the
district court did not accept the prosecutor’s or defense counsel’s
recommendations. See United States v. Valnor,
451 F.3d 744, 745-46, 752 (11th
Cir. 2006) (affirming upward variance despite government and defendant jointly
recommending sentence at low end of guideline range).
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The commentary to the Guidelines indicates that a supervised release
violation is a “breach of trust” and directs the court to “sanction primarily the
defendant’s breach of trust, while taking into account, to a limited degree, the
seriousness of the underlying violation and the criminal history of the violator.”
U.S.S.G. Ch. 7, Pt. A, comment. (n.3(b)). However, “the [C]hapter [S]even
guidelines are merely advisory, and it is enough that there is some indication the
district court was aware of and considered them.” Aguillard,
217 F.3d at 1320.
Barnes’s sentence is not substantively unreasonable. The fact that the
district court rejected the government’s recommendation does not render his
sentence unreasonable, and its imposition of a within-guideline-sentence is an
indicator of reasonableness. The court’s discussion of the § 3553(a) factors in
direct response to his arguments for a downward variance was sufficient, and it did
not need to expressly state that it considered his mitigating evidence. To the extent
that the court weighed his criminal history heavily, it was within its considerable
discretion to do so, and its acknowledgment of the Guidelines and their policy
statements was sufficient. Accordingly, we affirm.
AFFIRMED.
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