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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15847
Non-Argument Calendar
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D.C. Docket No. 3:97-cr-00188-HES-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEVELAND A. GRIFFIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 6, 2013)
Before CARNES, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.
PER CURIAM:
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Cleveland Griffin, proceeding pro se, appeals his statutory maximum
sentence of five years imprisonment, imposed following the mandatory revocation
of his supervised release under 18 U.S.C. § 3583(g) for possessing and selling
marijuana. The district court imposed an upward variance of three months from
the applicable guidelines range of 46 to 57 months imprisonment after determining
that Griffin had given perjured testimony at his revocation hearing. Griffin
contends that his sentence was unreasonable because the district court focused
solely on the fact that he had lied under oath and, in so doing, failed to consider
any other factors under 18 U.S.C. § 3553(a), including the recommended
guidelines range and his criminal history.
We review a sentence imposed upon revocation of supervised release for
reasonableness, applying a deferential abuse of discretion standard. See United
States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir. 2006); United States v.
Silva, 443 F.3d 795, 798 (11th Cir. 2006). We first look at whether the district
court committed any significant procedural error and then at whether the sentence
is substantively reasonable under the totality of the circumstances, typically with
reference to the § 3553(a) sentencing factors. United States v. Pugh, 515 F.3d
1179, 1190 (11th Cir. 2008). The party challenging the sentence bears the burden
of showing that it is procedurally or substantively unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
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When a term of supervised release is revoked under 18 U.S.C. § 3583(e), a
district court may impose a term of imprisonment after considering the § 3553(a)
factors, which include the nature and circumstances of the offense, the history and
characteristics of the defendant, the applicable guidelines range, and the need to
afford adequate deterrence, promote respect for the law, and protect the public
from the defendant’s future criminal conduct. 18 U.S.C. §§ 3583(e)(3), 3553(a).
However, when revocation and imprisonment are mandatory under § 3583(g)
because a defendant has violated the terms of his supervised release by possessing
a controlled substance, “the statute does not require consideration of the § 3553(a)
factors.” United States v. Brown, 224 F.3d 1237, 1241 (11th Cir. 2000). The only
statutorily imposed limitation on mandatory terms of imprisonment under §
3583(g) is that they not “exceed the maximum term of imprisonment authorized
under [§ 3583](e)(3),” which in this case was five years. 18 U.S.C. § 3583(g).
Because Griffin was subject to mandatory revocation of his supervised
release under § 3583(g) for possessing marijuana, a controlled substance, the
district court was not required to consider the § 3553(a) factors in imposing his
sentence. See Brown, 224 F.3d at 1241. Even so, the district court implicitly
considered some of the § 3553(a) factors when it noted that it had imposed an
above-guidelines sentence because Griffin had lied on the stand and continued to
flout the law despite his earlier convictions and sentences. The court also did not
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abuse its discretion in imposing an upward variance of three months because
Griffin’s sentence did not exceed the five-year maximum term authorized by
statute. See 18 U.S.C. § 3583(e)(3), (g). And even if Griffin’s sentence were
expressly assessed under the § 3553(a) factors, it is still substantively reasonable
given his undisputed act of perjury, his violation of the conditions of his supervised
release, and his extensive criminal history, which includes prior convictions for
multiple counts of grand theft and burglary, discharging a firearm in public, the
sale or possession of cocaine, robbery, battery, and unlawfully possessing a firearm
as a convicted felon. Griffin has not shown that his sentence was procedurally or
substantively unreasonable under the controlling standards and, thus, we affirm.
AFFIRMED.
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