[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10016 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 23, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:93-cr-00249-RAL-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE MALLOY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 23, 2010)
Before HULL, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Terrance Malloy appeals the district court’s revocation of his supervised
release, made pursuant to 18 U.S.C. § 3583(e)(3). On appeal, he argues that: (1) the
district court abused its discretion when it concluded that he committed a violation
of Fla. Stat. § 316.1935(3), even though state officials only charged him with a
violation of § 316.1935(1); and (2) his 59-month sentence is substantively
unreasonable. After thorough review, we affirm.
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006).
Our “reasonableness” review “merely asks whether the trial court abused its
discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting
Rita v. United States, 551 U.S. 338, 351 (2007)).
First, we are unpersuaded by Malloy’s claim that the district court abused its
discretion when it concluded that he committed a violation of Fla. Stat. §
316.1935(3). “Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of supervised
release, revoke the term of supervised release and impose a term of imprisonment.”
Sweeting, 437 F.3d at 1107. A mandatory term of supervised release is that the
defendant not commit another federal, state, or local crime. 18 U.S.C. § 3583(d).
The commentary to the policy statements in the Sentencing Guidelines provides that
a defendant may be charged with violating this mandatory term “whether or not the
defendant has been the subject of a separate federal, state, or local prosecution for
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such conduct.” U.S.S.G. § 7B1.1 comment. (n.1). Although these policy statements
are not binding on the district court, it is still required to consider them. See United
States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).
On the record here, the district court acted within its discretion when it revoked
Malloy’s supervised release by finding by a preponderance of the evidence that he
violated Fla. Stat. § 316.1935(3), even though state officials only charged him with
a violation of § 316.1935(1). Nothing in 18 U.S.C. § 3583(e)(3) requires the district
court to base its revocation decision on only those violations charged by state
officials, and the Sentencing Guidelines acknowledge this fact by indicating that
district courts may revoke a defendant’s supervised release based on conduct that
state officials choose not to prosecute. See U.S.S.G. § 7B1.1 comment. (n.1). The
district court’s consideration of, and ultimate agreement with, the Guidelines,
standing alone, does not amount to an abuse of discretion. Accordingly, we affirm
the district court’s decision to revoke Malloy’s supervised release.
Nor has Malloy shown that his resulting sentence was substantively
unreasonable. We review the “‘substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard,’” based on the “‘totality of the
circumstances.’” Pugh, 515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). This review
is “deferential,” requiring us to determine “whether the sentence imposed by the
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district court fails to achieve the purposes of sentencing as stated in section 3553(a).”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).1
“The weight to be accorded any given § 3553(a) factor is a matter committed
to the sound discretion of the district court, and we will not substitute our judgment
in weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (internal quotation and brackets omitted). We will remand for
resentencing only if we are “left with the definite and firm conviction 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.” Pugh, 515 F.3d at 1191 (citation and internal quotation
omitted). The burden is on the defendant to show that the sentence was unreasonable
in light of the record and the § 3553(a) factors. Talley, 431 F.3d at 788.
Malloy’s 59-month, above guidelines sentence is substantively reasonable. As
the record shows, the district court analyzed Malloy’s history and characteristics,
recognizing that it had previously given Malloy multiple breaks, yet Malloy
1
The § 3553(a) factors a court should consider in sentencing a defendant after a
revocation of supervised release include: (1) the nature and circumstances of the offense and the
defendant’s history and characteristics; (2) the need for the sentence to deter criminal conduct,
protect the public from the defendant’s further crimes, and provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment; (3) the
sentencing guideline range; (4) any pertinent policy statement; (5) the need to avoid unwarranted
sentence disparities among similarly situated defendants; and (6) the need to provide restitution
to victims of the offense. See 18 U.S.C. §§ 3553(a) and 3583(e).
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continued to engage in criminal activity. The court further noted that Malloy had
previously fled and eluded police officers, which resulted in an officer having to seek
immediate medical treatment. And here, Malloy again fled and eluded police officers
without regard for the safety of others. The district court thus concluded that fleeing
and eluding constituted a crime of violence under § 316.1935(3) because Malloy
showed wanton disregard for the safety of the neighborhood, other drivers, and the
police officers, and Malloy does not contest this conclusion. Based on this conduct,
the court also concluded that a reasonable sentence was the statutory maximum
penalty. In reaching this conclusion, the court placed more weight on the seriousness
of the crime and Malloy’s history and characteristics, and less weight on Malloy’s
arguments in mitigation, which is within its sole discretion. See Amedeo, 487 F.3d
at 832.
In addition, the court’s findings regarding the important § 3553(a) factors are
supported by the record, and Malloy’s illegal activities occurred just over four months
after he began his term of supervised release. Thus, Malloy has not demonstrated a
clear error of judgment in the court’s weighing of the § 3553(a) factors. Further, the
district court had the authority to vary the sentence above the guidelines range
because Chapter Seven of the Sentencing Guidelines is “merely advisory.” United
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States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Accordingly, we affirm
his sentence as substantively reasonable.2
AFFIRMED.
2
Malloy has failed to offer any argument in his initial brief regarding the procedural
reasonableness of his sentence, the district court’s use of uncharged conduct in determining the
grade of his supervised release violation, or the sufficiency of the evidence for a § 316.1935(3)
violation. He therefore has abandoned any argument pertaining to these issues. See United
States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004) (holding that “issues not raised by a
defendant in his initial brief on appeal are deemed waived”). However, to the extent Malloy
suggests that the district court did not consider specific mitigating evidence in determining his
sentence -- a procedural argument -- Malloy’s argument is without merit because the district
court considered the § 3553(a) factors, and it was under no obligation to discuss each mitigating
factor individually. See Amedeo, 487 F.3d at 833.
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