[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11656 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 5, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:02-cr-20299-FAM-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
TRACY JOSEPH,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 5, 2010)
Before BLACK, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Tracy Joseph appeals his 36-month sentence imposed after violation of his
supervised release.1 Joseph argues his sentence is substantively unreasonable
because (1) it is not necessary to achieve the sentencing goals of 18 U.S.C.
§ 3553(a); (2) it fails to take into account the nature of his offense, and the fact
that he admitted his intervening conviction; and (3) it is 26 months, or 360
percent, above the high end of the Guideline range. After review, we affirm
Joseph’s sentence.2
“Pursuant to 18 U.S.C. § 3583(e), upon finding that the defendant violated a
condition of supervised release, a district court may revoke the term of supervised
release and impose a term of imprisonment after considering the specific factors
set forth in 18 U.S.C. § 3553(a).” United States v. Velasquez Velasquez, 524 F.3d
1248, 1252 (11th Cir. 2008).
1
Joseph previously pleaded guilty to one count of possession with intent to distribute
marijuana while on board a motor vessel, in violation of 46 U.S.C. § 1903(j). The district court
sentenced him to 14 months’ imprisonment, followed by 36-months’ supervised release for that
offense. Thereafter, Joseph was convicted of illegal reentry after removal, in violation of 8
U.S.C. § 1326(a). The district court found that the subsequent conviction constituted a violation
of Joseph’s supervised release and imposed a revocation sentence of 36 months.
2
We review sentences imposed upon the revocation of supervised release for an abuse of
discretion. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). The
party challenging the sentence has the burden of establishing that the sentence is unreasonable.
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
2
A review for substantive unreasonableness involves examining the totality
of the circumstances, including an inquiry into whether the statutory factors in
§ 3553(a) support the sentence in question. United States v. Gonzales, 550 F.3d
1319, 1324 (2008). The district court is required to impose a sentence that is
“sufficient, but not greater than necessary to comply with the purposes” listed in
18 U.S.C. § 3553(a)(2).3 In imposing a particular sentence, the court must also
consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)-(7).
If a district court decides the factors in § 3553(a) warrant a sentence outside
the Guideline range, it “must consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree of the variance.”
United States v. Gall, 552 U.S. 38, 50 (2007). “Although there is no
proportionality principle in sentencing, a major variance does require a more
3
This includes the need to reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, deter criminal conduct, protect the public from the
defendant’s future criminal conduct, and provide the defendant with needed educational or
vocational training or medical care. See 18 U.S.C. § 3553(a).
3
significant justification than a minor one . . . .” United States v. Irey, 612 F.3d
1160, 1196 (11th Cir. 2010) (en banc). We have previously stated that a variance
of 12 ½ years and 42 percent “is a ‘major’ variance in the legal parlance of
sentencing law.” Id. However, “quantifying [a] variance as a certain percentage
of the maximum, minimum, or median prison sentence recommenced by the
Guidelines” is unhelpful because “deviations from the Guidelines range will
always appear more extreme . . . when the range itself is low.” Gall, 552 U.S. at
48.
The district court did not abuse its discretion when it deviated from the
Guideline range pursuant to the§ 3553(a) factors. The record shows the court
considered Joseph’s arguments, weighed the§ 3553(a) factors, and ultimately
found an above-Guidelines sentence was appropriate based on the past nature of
his conduct. The district court offered several reasons for its deviation, including
Joseph’s repeated illegal reentry into the United States and his failure to
acknowledge his wrongdoing. Further, Joseph’s claim that his sentence is
unreasonably disproportionate based on the Guidelines range is without merit. See
Gall, 552 U.S. at 48. Accordingly, we affirm Joseph’s sentence.
AFFIRMED.
4