United States v. Christopher Stafford , 599 F. App'x 899 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12923
Non-Argument Calendar
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D.C. Docket No. 1:02-cr-00412-TWT-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER STAFFORD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 3, 2015)
Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.
PER CURIAM:
Christopher Stafford violated the conditions of his supervised release and
was sentenced to 24 months of imprisonment, a ten-month upward variance from
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the top end of his guideline range of 8 to 14 months. He appeals the sentence
arguing that it is greater than necessary to meet the goals of sentencing, was
motivated by retribution, and failed to account for other mitigating factors. After
careful review of the record and consideration of the parties’ briefs, we affirm.
I.
Stafford began serving a three-year term of supervised release in April 2013,
following a 151-month prison term for bank robbery. Among other conditions of
his supervised release, Stafford was required to “not illegally possess a controlled
substance” and to “participate in the drug/alcohol treatment program as directed by
the United Station Probation Officer.” He subsequently violated the conditions of
his supervised release at least four different times, each for failing to comply with
drug testing and treatment conditions.
Stafford tested positive for cocaine in July, in August, and in September
2013. After the first violation, the district court agreed that Stafford should receive
a reprimand, drug treatment, and testing. After the second, the court restricted
Stafford’s travel privileges and ordered enhanced drug treatment and continued
testing. After the third, the court ordered Stafford to spend ninety days in a half-
way house, which he did successfully.
In late April 2014, Stafford committed his fourth violation, which gave rise
to the revocation proceedings at issue. The petition for revocation filed by
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Stafford’s probation officer alleged that Stafford admitted to using cocaine, missed
drug-treatment sessions, missed drug tests, and refused to report to the probation
office unless he was arrested. The court issued an arrest warrant and later held a
revocation hearing.
At Stafford’s revocation hearing, his attorney admitted, with some
qualifications about the details of each violation, that Stafford had violated the
conditions of his supervised release in the ways specified by the probation officer.
The probation officer testified that Stafford had failed to regularly attend drug-
treatment sessions in March and April 2014, missed several drug tests throughout
April 2014, and admitted that he was using cocaine. According to the probation
officer, Stafford stated that “he is done with drug tests, he is done with probation
and he’s done with the treatment and that he is just not going to come in,” and that
he would turn himself in once the probation officer had obtained a warrant for his
arrest.
After hearing argument from the parties, the district court found that
Stafford had violated the conditions of his supervised release, which Stafford does
not contest on appeal. According to the court’s calculations, to which neither party
objected, the statutory maximum was 24 months of imprisonment, and the
guideline range was 8 to 14 months. The government, noting that revocation was
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mandatory under 18 U.S.C. § 3583(g), requested a twelve-month sentence
followed by no supervised release.
Stafford, in turn, requested that the court sentence him to time served and
then reinstate him to a term of supervised release. He argued that his problems
with cocaine stemmed from long-term depression, for which he had not been
medicated since his release from prison, and he highlighted his good work history
since his release from prison. Stafford also pointed out that he was in a committed
relationship, and he asked for a shorter sentence so that he could spend time with
his seriously ill father.
The district court observed that supervised release is an important part of
sentencing for two reasons: (1) it gives the defendant an opportunity to show that
he is rehabilitated and ready to rejoin society; and (2) it gives the court the
opportunity to impose additional punishment if the defendant goes back to
committing criminal activity or fails to adhere to the conditions of his supervised
release. According to the court, Stafford had “totally failed” in these respects since
his release by “repeatedly engag[ing] in additional criminal conduct” and “simply
refus[ing] to abide by the conditions of supervised release.” There was no point in
imposing more supervised release, the court found, because “[Stafford] has refused
to report. He has refused to take drug tests. He has just said, ‘Well, just arrest
me.’” Stating that the only way to keep Stafford from using cocaine was “simply
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to lock him up,” the court sentenced Stafford to 24 months of imprisonment with
no supervised release to follow. Stafford now appeals.
II.
We review the sentence imposed upon revocation of supervised release for
reasonableness, United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008), which “merely asks whether the trial court abused its discretion,”
United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quotation marks
omitted). See United States v. Brown, 224 F.3d 1237, 1239 (11th Cir. 2000) (“We
review a district court’s decision to exceed the sentencing range in Chapter 7 of the
Sentencing Guidelines for abuse of discretion.”), abrogated in part on other
grounds as recognized in United States v. Vandergrift, 754 F.3d 1303, 1309 (11th
Cir. 2014). We review de novo the legal question of whether the district court
considered an impermissible factor in sentencing a defendant. Velasquez
Velasquez, 524 F.3d at 1252.
III.
On appeal, Stafford argues that his 24-month sentence is excessive because
it is greater than necessary to meet the goals of deterrence, protecting the public,
and providing him with effective treatment. Because he did not violate his
probation by committing new criminal offenses, but rather by failing drug tests, the
goals of deterrence and protecting the public, he contends, should be outweighed
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by the goal of rehabilitation, which is not achieved through incarceration. The
court’s sentence was motivated by retribution, he contends, which is not an
appropriate consideration for sentencing upon revocation of supervised release.
In general, upon determining that a defendant violated a condition of
supervised release, the district court may revoke the term of supervision and
impose a prison term under 18 U.S.C. § 3583(e). In doing so, the court must first
consider “section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6),
and (a)(7),” which include the nature and circumstances of the crime with the
history and characteristics of the defendant; the need for the sentence imposed to
afford adequate deterrence, protect the public, and provide the defendant with
needed educational or vocational training, medical care, or other correctional
treatment; the applicable guideline range and any pertinent policy statements
issued by the Sentencing Commission; and the need to avoid unwarranted sentence
disparities. Absent from this list is the goal of retribution—the need for the
sentence imposed to “to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense.” 18 U.S.C.
§ 3553(a)(2)(A); Vandergrift, 754 F.3d at 1308; see Tapia v. United States, ___
U.S. ___, 131 S. Ct. 2382, 2387 (2011) (describing the purposes of sentencing).
By contrast, revocation of supervised release and imposition of a prison term
are mandatory if, among other things, the defendant refuses to comply with drug
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testing in violation of the conditions of his supervised release or, as part of drug
testing, tests positive for illegal controlled substances more than three times in a
year. 18 U.S.C. § 3583(g)(3), (4); Brown, 224 F.3d 1241-42. Unlike § 3853(e),
which governs permissive revocation, the subsection governing mandatory
revocation does not require the judge to consider any of the § 3553(a) factors. See
18 U.S.C. § 3583(g); Brown, 224 F.3d at 1242. The only explicit limitation on
sentencing imposed by § 3583(g) is that the term of imprisonment must not exceed
the maximum term of imprisonment authorized under § 3583(e)(3), which in this
case is two years. See 18 U.S.C. § 3583(e)(3), (g). A district court need not
specifically state that it is compelled to revoke supervised release under § 3583(g)
if the conditions implicating the provision are present. See Brown, 224 F.3d at
1242.
In reviewing the reasonableness of a sentence outside the guideline range,
we consider the degree of variance and the extent of the deviation from the
Guidelines. United States v. Irey, 612 F.3d 1160, 1186-87 (11th Cir. 2010) (en
banc). The justification given should be sufficiently compelling to support the
degree of variance. Id. Generally, the district court must consider the applicable
§ 3553(a) factors in imposing sentence, but the court has the discretion to
determine the weight given to any particular § 3553(a) factor and does not need to
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discuss each factor. United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.
2008).
Although the district court did not expressly revoke Stafford’s probation
under § 3583(g), the probation officer’s testimony about Stafford’s failed drug
tests and refusal to comply with further drug testing indicates that revocation was
mandatory under the circumstances. See 18 U.S.C. § 3583(g)(3), (4); Brown, 224
F.3d at 1242. The court, therefore, was not statutorily required to consider the
§ 3553(a) factors in sentencing Stafford. Brown, 224 F.3d at 1241. And the
court’s sentence was within the maximum allowable term of imprisonment. See 18
U.S.C. § 3583(g).
In any case, Stafford has not demonstrated that the district court considered
an improper factor or that his 24-month sentence is substantively unreasonable in
light of the relevant § 3553(a) factors. Stafford’s ten-month upward variance from
the top end of the guideline range was supported, most notably, by the history and
characteristics of the defendant and the need for the sentence imposed to afford
adequate deterrence. Stafford admitted that he violated the terms of his supervised
release for the fourth time when he used cocaine, missed drug-treatment sessions,
missed drug tests, and refused to report to the probation office unless he was
arrested. Based on these facts, which Stafford does not contest, the district court
concluded that Stafford had “simply refused to abide by the conditions of
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supervised release.” Furthermore, the district court heard and considered
Stafford’s arguments in mitigation, including his depression, drug use, family
circumstances, and work history, but nonetheless concluded that a 24-month
sentence was reasonable under the circumstances. Based on our review of the
record, we cannot say that the “district court committed a clear error of judgment
in weighing the § 3553(a) factors by arriving at a sentence that lies outside the
range of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at
1190 (quotation marks omitted).
Stafford asserts that the district court impermissibly considered the goal of
retribution in imposing sentence, but he cites no evidence in support of that
position aside from relying on the length of the sentence itself, which he asserts
was unduly harsh.1 We decline to ascribe a purportedly impermissible motivation
to the district court in the absence of other support from the record, and, for the
reasons explained above, we find that Stafford has not shown that the sentence was
substantively unreasonable.
In short, the district court did not abuse its discretion in sentencing Stafford
to 24 months of imprisonment upon revocation of his supervised release.
AFFIRMED.
1
Furthermore, Vandergrift notes that neither this Court nor the Supreme Court has
addressed “whether it is error to consider a factor listed in § 3553(a)(2)(A) [concerning the goal
of retribution] when imposing a sentence after revoking supervised release.” Vandergrift, 754
F.3d at 1308.
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