USCA11 Case: 21-12752 Date Filed: 04/12/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12752
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSH CLEMONTE ROLLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:13-cr-60033-JAL-2
____________________
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2 Opinion of the Court 21-12752
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Josh Rolle appeals his sentence of 27 months’ imprisonment
imposed upon revocation of his supervised release. He argues that
his sentence is procedurally and substantively unreasonable. We
affirm.
I.
Rolle, a Bahamian citizen, pleaded guilty in 2013 to conspir-
ing to possess with intent to distribute cocaine. He was sentenced
to 63 months in prison and five years of supervised release. As con-
ditions of his supervised release, he was prohibited from commit-
ting another crime, required to surrender to immigration officers
for removal after his imprisonment, and barred from reentering the
United States without permission.
Rolle served his term of imprisonment and was deported.
His term of supervised release began in April 2016. Three years
later, Rolle was found in south Florida participating in a conspiracy
to import several hundred pounds of marijuana into the United
States. Rolle’s probation officer filed a petition alleging that Rolle
had violated the conditions of his supervised release by illegally
conspiring to import marijuana into the United States and reenter-
ing the country without permission.
Before the supervised release revocation hearing, the proba-
tion officer provided the parties with a report calculating the
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21-12752 Opinion of the Court 3
applicable Guidelines range as 24 to 30 months’ imprisonment,
based on the classification of the violations under § 7B1.1(a) of the
United States Sentencing Guidelines and Rolle’s criminal history
category (I). The report also noted that U.S.S.G. § 7B1.3(f) pro-
vided that any sentence imposed on the revocation of supervised
release shall be imposed to run consecutively to any term of im-
prisonment that the defendant is serving.
At the hearing, Rolle admitted to the violations and the dis-
trict court found that he had violated the terms and conditions of
his supervised release. The government argued for a sentence of
imprisonment within the Guidelines range, to be imposed consec-
utively to the sentence for the new drug offense pursuant to
U.S.S.G. § 7B1.3(f). Rolle argued that the court should either im-
pose a sentence running concurrent to his sentence for the new
drug offense or grant a variance below the Guidelines range. The
district court stated that it had considered the statements of the par-
ties, “the information contained in the violation report,” and the
sentencing factors in
18 U.S.C. § 3553(a). It stated that it considered
a sentence “in the middle of the advisory guideline range” to be
appropriate and sentenced Rolle to 27 months in prison, to be
served consecutively to the sentence he was serving for the drug-
importation offense. Rolle now appeals.
II.
We generally review a sentence imposed upon revocation
of supervised release for reasonableness, applying the deferential
abuse-of-discretion standard. United States v. Vandergrift, 754 F.3d
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4 Opinion of the Court 21-12752
1303, 1307 (11th Cir. 2014). When a defendant raises an argument
regarding the procedural reasonableness of his sentence for the first
time on appeal, however, our review is for plain error only.
Id.
III.
A.
Rolle first argues that his sentence was procedurally unrea-
sonable because the district court failed to calculate his Guidelines
sentencing range at the supervised release revocation hearing.
Rolle did not raise this objection before the district court when he
was given the opportunity to do so; we therefore review the pro-
cedural reasonableness of his sentence for plain error.
Id. Under
the plain error standard, Rolle must show that (1) the district court
erred; (2) the error was plain or obvious; and (3) the error affected
his substantial rights.
Id. If all three conditions are met, we may
reverse if the error seriously affected the integrity, fairness, or pub-
lic reputation of judicial proceedings.
Id.
A district court may commit procedural error at sentencing
if it fails to correctly calculate the applicable Guidelines range. See
Gall v. United States,
552 U.S. 38, 51 (2007). But Rolle has not
shown that the district court committed that error here. Citing
United States v. Pugh,
515 F.3d 1179 (11th Cir. 2008), the district
court acknowledged its duty to begin by correctly calculating the
Guidelines range, and then to consider the parties’ arguments re-
garding the appropriate sentence. Although the court did not state
on the record that it agreed with the probation officer’s proposed
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21-12752 Opinion of the Court 5
Guidelines calculations, it stated that it had reviewed the probation
officer’s report, and it is apparent from the hearing transcript that
both the parties and the district court were referring to the Guide-
lines range proposed in the report. Cf. Rita v. United States,
551
U.S. 338, 351 (2007) (“The sentencing judge, as a matter of process,
will normally begin by considering the presentence report and its
interpretation of the Guidelines.”).
The government argued for a sentence “within the advisory
guidelines range”; Rolle argued for either a concurrent sentence or
“a variance below the guideline range”; and the district court stated
that although it had initially “considered going above the advisory
guidelines,” defense counsel had persuaded the court “to sentence
within the advisory guidelines” because of Rolle’s unusual ac-
ceptance of responsibility. The court ultimately determined that a
sentence at “the mid-level of the guideline range” was appropriate,
and its sentence of 27 months is, in fact, at the midpoint of the cor-
rect Guidelines range of 24–30 months. 1
1 Rolle argues that the district court could have made an error in its Guidelines
calculations—for example, by assigning Rolle the wrong criminal history cat-
egory—and still come up with the correct Guidelines range. Such an error is
highly unlikely, given that the district court reviewed the probation officer’s
report containing the correct criminal history category and Guidelines calcu-
lations and did not indicate any disagreement with the report. Rolle cannot
meet his burden under the plain-error standard by engaging in idle specula-
tion.
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6 Opinion of the Court 21-12752
For sentences imposed upon revocation of supervised re-
lease, “it is sufficient that there be some indication that the district
court was aware of and considered the Guidelines, which requires
the court to consider the sentencing range established under the
Guidelines.” United States v. Campbell,
473 F.3d 1345, 1349 (11th
Cir. 2007) (quotation marks, emphasis, and citation omitted). The
record before us gives ample indication that the district court cor-
rectly calculated and considered the applicable Guidelines range
before imposing Rolle’s sentence. Rolle has not shown that the
district court committed plain error.
B.
Rolle next argues that his 27-month sentence is substantively
unreasonable because the district court failed to adequately con-
sider the harshness of his incarceration during the COVID-19 pan-
demic, when many prison work and treatment programs are una-
vailable and access to the outside world is limited. He contends
that the extended lockdowns caused by the pandemic are especially
harsh for him because as a noncitizen, he is ineligible for certain
time credits or for early release to a halfway house.
A district court may abuse its discretion and impose a sub-
stantively unreasonable sentence if it fails to consider relevant fac-
tors that should be given significant weight, gives undue weight to
an irrelevant or improper factor, or commits a clear error in judg-
ment when balancing the relevant factors. United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). In considering the
§ 3553(a) sentencing factors, however, the weight given to any
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21-12752 Opinion of the Court 7
specific factor generally is committed to the sound discretion of the
district court. United States v. Croteau,
819 F.3d 1293, 1309 (11th
Cir. 2016). “The party challenging the sentence bears the burden
of showing that it is unreasonable.” United States v. Trailer,
827
F.3d 933, 936 (11th Cir. 2016).
Under the circumstances here, we are not persuaded that
Rolle’s sentence was substantively unreasonable. Although the
court did not explicitly address Rolle’s argument that the condi-
tions of confinement during the pandemic were more harsh than
usual, it stated that it had considered the parties arguments, along
with the § 3553(a) sentencing factors, in determining that a 27-
month sentence was appropriate. The court was not required to
discuss each factor that it considered, and we will not assume that
the court ignored Rolle’s argument merely because it did not ref-
erence the argument at the hearing or in its sentencing order. See
United States v. Amedeo,
487 F.3d 823, 832–33 (11th Cir. 2007).
The district court explained that in considering § 3553(a)(1)
(“the nature and circumstances of the offense and the history and
characteristics of the defendant”), the fact that Rolle had illegally
reentered the United States for the purpose of committing the
same kind of crime for which his original sentence was imposed
weighed in favor of a longer revocation sentence. The court also
explained, however, that it had been persuaded in part by Rolle’s
argument that he had demonstrated extraordinary acceptance of
responsibility by reaching out to the Federal Defender’s office to
set the revocation hearing and resolve the violations. The court
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8 Opinion of the Court 21-12752
balanced these significant factors and determined that a 27-month
sentence was appropriate.
We cannot say that this middle-of-the-Guidelines sen-
tence—which was also well below the statutory maximum sen-
tence of five years in prison—represents “a clear error in judgment”
or “lies outside the range of reasonable sentences dictated by the
facts of the case.” Trailer, 827 F.3d at 936; see United States v.
Muho,
978 F.3d 1212, 1227 (11th Cir. 2020) (“sentences that fall
within the Guidelines range or that are below the statutory maxi-
mum are generally reasonable”). Rolle has not shown that the dis-
trict court abused its discretion by imposing a substantively unrea-
sonable sentence.
IV.
Rolle’s 27-month sentence imposed on the revocation of
supervised release was not procedurally or substantively unrea-
sonable. We therefore affirm.
AFFIRMED.
