USCA11 Case: 22-13646 Document: 34-1 Date Filed: 07/18/2023 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13646
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ANTHONY LINCOLN,
a.k.a. Johnson Harper,
a.k.a. Kirk Johnson,
a.k.a. Kirk Lincoln,
a.k.a. Quinton Harper,
a.k.a. Ben Lewis,
a.k.a. Christopher Jacob,
a.k.a. Kirk Williams,
a.k.a. Christopher Jenkins,
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2 Opinion of the Court 22-13646
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cr-00331-SDG-1
____________________
Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Mark Lincoln appeals his 36-month sentence of imprison-
ment imposed upon revocation of his supervised release. He con-
tends that the district court imposed an illegal and uncertain sen-
tence by ordering his federal sentence to run consecutively to an-
ticipated state sentences on related state charges. He also main-
tains that the sentence is substantively unreasonable because, in his
view, the court refused to consider the mitigating circumstances of
his possession and use of a firearm while on supervised release. Af-
ter careful review, we affirm the district court.
I.
Lincoln began a ten-year term of supervised release in 2018,
after serving a 200-month prison sentence for a federal drug crime.
More than four years later, in 2022, a probation officer petitioned
to revoke Lincoln’s supervised release, alleging two violations of
its conditions stemming from an incident on January 3, 2021: (1)
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22-13646 Opinion of the Court 3
Lincoln had committed the new state-law felony offenses of aggra-
vated battery, aggravated assault, possession of a firearm by a felon,
and possession of a firearm during the commission of a felony; and
(2) he had possessed a firearm.
The district court held a revocation hearing in October 2022,
while the state charges were pending. At the outset of the hearing,
Lincoln stipulated that the government could prove by a prepon-
derance of the evidence that he unlawfully possessed a firearm as
alleged in violations 1 and 2. In exchange, the government agreed
not to proceed on the remaining state-law crimes alleged in viola-
tion 1. Based on that agreement, the district court determined a
guideline range of 21 to 27 months. The government sought the
statutory maximum revocation sentence of 60 months. Lincoln re-
quested 18 months.
During its argument, the government proffered the facts of
the underlying incident on January 3, 2021, and also showed a
video clip of that incident. On that night, according to the govern-
ment, Lincoln and his security-guard company, which he started
after his release, were providing security at an Ethiopian restaurant
and hookah bar in DeKalb County, Georgia. An early-morning dis-
pute over checks inside the hookah bar became a chaotic scene in
the parking lot outside. While Lincoln and three armed employees
were in the parking lot, an intoxicated patron approached Lincoln
and took a swing at him. In response, Lincoln withdrew a handgun
and shot the patron in the head. Lincoln then fled the scene and
eventually the state.
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4 Opinion of the Court 22-13646
Lincoln did not meaningfully dispute the government’s
proffer, instead arguing that it was “minimally relevant to the con-
duct that Mr. Lincoln is being charged with,” which was possession
of a firearm. Defense counsel also offered additional context about
the incident. She stated that a large group of patrons who were
drunk and aggressive had caused the dispute, and that Lincoln had
acted in self-defense by shooting a member of the group who at-
tempted to attack him. She added that Lincoln had confiscated the
gun from the rowdy group earlier that same evening. Finally,
counsel cited as mitigating evidence Lincoln’s decision to open a
business and to provide opportunities and support for other for-
merly incarcerated individuals.
Ultimately, the district court sentenced Lincoln to 36
months of imprisonment, followed by five years of supervised re-
lease, consecutive to any sentence imposed in the DeKalb County
case. The court explained its view that a modest upward variance
from the guideline range was appropriate, describing the case as
“one of the most serious examples of a felon-in-possession violation
that you can imagine given the circumstances that someone was,
in fact, shot in the head and luckily, fortunately for you, Mr. Lin-
coln, managed to survive.”
The district court stressed that the “sentence [was] in no way
a reflection of the circumstances that led to the shooting”—
namely, whether the shooting was in self-defense. In fact, the court
said that it had “no view about that” issue, which would “be re-
solved in [Lincoln’s] DeKalb case.”
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Still, though, the district court acknowledged the potential
“mitigating circumstances as to [Lincoln’s] reason for using the fire-
arm,” but it emphasized the “fairly undisputed facts” that “he did
use a firearm” and then “fled the scene.” Whether the shooting
was justified or not, the court told Lincoln, “you were a convicted
felon and knew that you were not authorized to possess a firearm
and placed yourself in that position and then had the depravity to
leave the scene and to leave a man lying, probably for dead,” which
“show[ed] a degree of selfishness and self-preservation that is ex-
tremely aggravating.” While the court commended Lincoln on
“what otherwise would have been an incredible success story for
you” since his release from prison, it stressed he should never have
possessed a gun “in that situation to begin with.”
Again, the district court stated that it was “making no find-
ing as to the remaining charges that are pending in DeKalb County,
specifically with respect to aggravated battery, aggravated assault,
or the possession of a firearm during the commission of a felony,”
which would be resolved by DeKalb County. The 36-month sen-
tence, according to the court, was “narrowly tailored for the super-
vised release violations themselves and the aggravating circum-
stances” cited. The court ordered the sentence to run consecu-
tively to any sentence imposed in the DeKalb County case. Lincoln
objected to the length of the sentence and the court’s decision to
run the sentence consecutively to the anticipated state sentences.
This appeal followed.
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6 Opinion of the Court 22-13646
II.
Lincoln first argues that his consecutive sentence is “illegal
and uncertain” because he was in “primary federal custody on the
day he was revoked” and is “set to serve his federal sentence before
any state sentence.” Since his federal sentence cannot logically
come after any state sentence, he reasons, the district court ex-
ceeded its authority by attempting either to order him to serve his
state sentence first or to prevent him from receiving credit in state
court for his federal sentence. In either case, Lincoln asserts, “[a]
federal court cannot dictate whether someone will serve more or
less time in state custody by declaring that a sentence will run con-
secutive to an anticipated state sentence.” Lincoln also asserts gen-
erally that uncertainty about the effect of the consecutive nature of
the sentence “risks serious misapprehensions by the Bureau of Pris-
ons.”
We review de novo questions about the district court’s au-
thority to impose consecutive rather than concurrent sentences.
United States v. Ballard,
6 F.3d 1502, 1505 (11th Cir. 1993). Because
we conclude that Lincoln has not established an error with regard
to the consecutive nature of his sentence, we need not address the
government’s contention that plain-error review applies.
Under binding precedent, a sentencing court has the author-
ity to impose a consecutive federal sentence when, as here, the
court “anticipates a state sentence that has not yet been imposed.”
Setser v. United States,
566 U.S. 231, 236 (2012); see also United States
v. Andrews,
330 F.3d 1305, 1307 (11th Cir. 2003); United States v.
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22-13646 Opinion of the Court 7
Ballard,
6 F.3d 1502, 1510 (11th Cir. 1993). Nothing in that prece-
dent supports Lincoln’s proposed carve-out for defendants in his
position in “primary federal custody.”
In fact, the Court in Setser noted the possibility that a defend-
ant who receives a federal sentence consecutive to an anticipated
state sentence may “serve[] his federal sentence first.”
566 U.S. at
241. In that scenario, according to the Court, principles of dual
sovereignty permit the state court to “decide whether to give him
credit against his state sentences without being bound by what the
district court . . . said on the matter.”
Id. Even if the state court
imposes a sentence contrary to the intent of the federal district
court, that does not render the consecutive federal sentence unlaw-
ful.
Id. at 244 (“That a sentence is thwarted does not mean that it
was unreasonable.”). A sentence is not unreasonable simply be-
cause it is “difficult, or even impossible, to implement.”
Id.
This Court made similar observations in Andrews. We rec-
ognized that the federal court “may control the federal sentence,”
but not “how a state court sentences a defendant.”
330 F.3d at 1307
n.1. We elaborated on this point as follows:
The fact that the federal district court elected to sen-
tence Andrews to a consecutive federal sentence by
no means limits the sentencing options available to
the state court. For example, the state sentencing
judge is free to disregard the intent of the federal sen-
tence and make the state sentence concurrent with
the federal sentence. If the state judge so elects, all
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8 Opinion of the Court 22-13646
the State of Florida needs to do is designate the fed-
eral prison where Andrews is incarcerated as the “of-
ficial detention facility” in which Andrews will serve
his concurrent state sentence. Such a decision by the
state judge does not affect the actual time served on
the federal sentence, but gives state credit on the state
sentence for the time served in the federal detention
facility.
The state judge is also free, however, to recog-
nize the intent of the federal sentence is for the de-
fendant to serve separate time for both his state and
federal charges. If the judge so elects, the state judge
may sentence Andrews to a consecutive state sen-
tence to be served once Andrews is released from federal
custody.
Id (emphasis added). Thus, Andrews, like Setser, contemplates that
a defendant will “serve[] his federal sentence first,”
566 U.S. at 241,
the same situation we have here. We see no reason to conclude
that the court’s authority to impose a consecutive sentence de-
pends on the order in which a defendant serves or is likely to serve
the respective sentences. See Ballard,
6 F.3d at 1509 (“Which court
sentences first is irrelevant.”).
Here, the district court had the authority to impose a federal
sentence consecutively to Lincoln’s anticipated state sentences. See
Setser,
566 U.S. at 244; Andrews,
330 F.3d at 1307 n.1. To the extent
that, in doing so, the court intended to control the anticipated state
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22-13646 Opinion of the Court 9
sentences, the state sentencing court is not “bound by what the dis-
trict court . . . said on the matter,” Setser,
566 U.S. at 241, and is free
to “make the state sentence concurrent with the federal sentence,”
Andrews,
330 F.3d at 1307 n.1. Or “the state judge may sentence
[Lincoln] to a consecutive state sentence to be served once [he] is
released from federal custody.”
Id. The inherent uncertainty in
this scenario does not establish that the consecutive nature of the
federal sentence is unlawful or unreasonable. 1 See Setser,
566 U.S.
at 243–44. If an issue later arises regarding the implementation of
Lincoln’s federal sentence, he may seek relief from the Bureau of
Prisons, “[a]nd if that does not work, he may seek a writ of habeas
corpus” under
28 U.S.C. § 2241.
Id. at 244.
III.
Lincoln also maintains that his 36-month sentence is sub-
stantively unreasonable. We review the reasonableness of a sen-
tence for an abuse of discretion. United States v. Rodriguez,
34 F.4th
961, 969 (11th Cir. 2022). As the challenger, Lincoln “must shoul-
der the burden of demonstrating that the sentence is unreasonable,
considering the complete record, the § 3553(a) factors, and the sub-
stantial deference we give sentencing courts.” United States v.
Osorto,
995 F.3d 801, 822 (11th Cir. 2021).
1 We summarily reject Lincoln’s unsupported claim that the district court re-
lied on the clearly erroneous belief that he would serve his state sentence first.
Assuming Lincoln serves his federal sentence first, the district court’s imposi-
tion of a consecutive sentence is not superfluous or irrational, as Lincoln sug-
gests, even if is more in the nature of a recommendation to the state court.
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10 Opinion of the Court 22-13646
District courts are authorized to “revoke a term of super-
vised release” and impose a prison sentence when a defendant vio-
lates a condition of supervised release.
18 U.S.C. § 3583(e)(3). A
sentence imposed upon revocation must be “sufficient, but not
greater than necessary,” to comply with the sentencing goals of de-
terrence, protection of the public, and rehabilitation of the defend-
ant. See
18 U.S.C. § 3583(c) (requiring district courts to “consider[]
the 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)”). The court must also con-
sider the nature and circumstances of the violation, the history and
characteristics of the defendant, the sentencing guidelines, and the
need to provide restitution, among other factors. See id. But the
court is “not required to explicitly address each of the § 3553(a) fac-
tors or all of the mitigating evidence.” United States v. Taylor,
997
F.3d 1348, 1354 (11th Cir. 2021).
“The weight accorded to any one § 3553(a) factor is a matter
committed to the sound discretion of the district court, and a court
may attach great weight to one factor over others.” Id. Still, the
court abuses it discretion when it “(1) fails to afford consideration
to relevant factors that were due significant weight, (2) gives signif-
icant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” United
States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
If the district court imposes a sentence outside the guideline
range, it must ensure that the justification is “sufficiently compel-
ling to support the degree of the variance.” Gall v. United States,
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22-13646 Opinion of the Court 11
552 U.S. 38, 50 (2007). In conducting our review, we consider the
totality of the circumstances, including any variance from the
guideline range.
Id. at 51. But we “must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, jus-
tify the extent of the variance.” Id. That we might conclude that a
“different sentence was appropriate is insufficient to justify rever-
sal.” Id.
Lincoln claims that the district court abused its discretion by
refusing to consider the entirety of his conduct in determining a
reasonable sentence. In his view, the court’s reasoning excluded
relevant mitigating factors that were due significant weight, specif-
ically “the mitigating circumstances leading up to the shooting.” 2
Here, Lincoln has not shown that the district court abused
its considerable sentencing discretion and imposed a substantively
unreasonable revocation sentence. As we see it, the court relied on
two “aggravating circumstances” about Lincoln’s conduct in im-
posing the upward variance: (1) his knowing possession of a gun in
a security-guard role, which made his use of that gun more likely;
2 According to Lincoln, those circumstances included that “Mr. Lincoln con-
fiscated the gun from a suspected gang member; that a fight broke involving
and drunk, angry patrons who Mr. Lincoln believed to be gang members; that
those patrons were surrounding Mr. Lincoln and his team; that those patrons
were running back and forth to their cars; whether Mr. Lincoln believed some
of the patrons had weapons; that [the patron assailant] was particularly agi-
tated and aggressive; whether Mr. Lincoln believed [the assailant] had a
weapon; and that, in the midst of all the chaos and emotion, [the assailant]
suddenly reached up and punched Mr. Lincoln in the face.”
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12 Opinion of the Court 22-13646
and then (2) upon using the gun to shoot another person, whether
in self-defense or not, fleeing the scene and leaving the man “prob-
ably for dead,” which “show[ed] a degree of selfishness and self-
preservation that is extremely aggravating.”
Lincoln does not dispute that, in sentencing him for violat-
ing the terms of supervised release by unlawfully possessing a fire-
arm, the district court reasonably could have viewed these undis-
puted facts about his conduct as aggravating. And it was well
within the district court’s discretion to give little weight to the
“mitigating circumstances leading up to the shooting.” As Lincoln
acknowledges, the circumstances the court allegedly refused to
consider “would make up a self-defense claim” to the assault and
battery charges, which he agrees were “not at issue at the revoca-
tion hearing.” So we cannot say that those circumstances were
“due significant weight” in the sentencing calculus. See Irey,
612
F.3d at 1189.
Nor does the district court’s reasoning for its choice of sen-
tence rely on disputed facts about the incident on January 3, 2021.
While Lincoln may have taken the gun from a patron earlier in the
evening, he still possessed a gun while working as a security guard
when he knew such possession was unauthorized. Nothing sug-
gests that Lincoln lacked the time or opportunity to relinquish pos-
session of the gun to another security guard. Plus, the court ex-
plained that, even assuming the shooting was justified, it viewed
Lincoln’s post-shooting flight from the scene as an aggravating fac-
tor. Lincoln fails to address that piece of the district court’s
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22-13646 Opinion of the Court 13
reasoning, which supports its view that an upward variance was
appropriate.
For these reasons, Lincoln has not shown that the district
court abused its discretion by failing to consider factors that were
due significant weight, or that his sentence is otherwise unreason-
able “considering the complete record, the § 3553(a) factors, and
the substantial deference we give sentencing courts.” Osorto, 995
F.3d at 822. We therefore affirm his sentence.
AFFIRMED.
