[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12371 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 4, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:03-cr-20632-WPD-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
JACQUELINE JACKSON,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 4, 2011)
Before DUBINA, Chief Judge, TJOFLAT and CARNES, Circuit Judges.
PER CURIAM:
Appellant Jacqueline Jackson appeals her 36-month total sentence, imposed
after the district court found that she violated the terms of her supervised release.
On appeal, Jackson argues that her sentence was both procedurally and
substantively unreasonable. Jackson contends that the sentence was procedurally
unreasonable because the district court failed to identify the correct legal standard
in finding that she violated the conditions of her supervised release. Specifically,
she asserts that the district court merely found that she was guilty of the charged
violations “under the totality of the circumstances.” According to Jackson, her
sentence also was substantively unreasonable because it was “greater than
necessary to achieve the goals of sentencing as outlined in [18 U.S.C.] § 3553(a).”
Ordinarily, 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 “substantive review of sentences is deferential” and “only
look[s] to see if the district court abused its discretion by committing a clear error
in judgment.” United States v. Irey, 612 F.3d 1160, 1165 (11th Cir. 2010) (en
banc). Review for abuse of discretion applies to “all sentences, whether within or
without the guidelines . . . .” Id. at 1186 (citing Gall v. United States, 552 U.S. 38,
46, 128 S. Ct. 586, 594 (2007)).
We review arguments raised for the first time on appeal for plain error.
United States v. Bacon, 598 F.3d 772, 777 (11th Cir. 2010). An argument will not
be preserved for appeal unless the appellant stated it clearly “enough to inform the
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district court of the legal basis for the objection . . . .” United States v. Massey,
443 F.3d 814, 819 (11th Cir. 2006). Under plain-error review, we can only make
corrections if there is an error, that is plain, and that affects substantial rights.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If these criteria
are met, we have the discretion to correct the error, but only if it “seriously affects
the fairness, integrity or public reputation of judicial proceedings.” United States
v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779 (1993) (quotation and
alteration omitted).
A sentence may be procedurally or substantively unreasonable. Gall, 552
U.S. at 51, 128 S. Ct. at 597. A sentence may be procedurally unreasonable if the
district court (1) improperly calculates the guideline range, (2) treats the
Guidelines as mandatory, (3) fails to consider the appropriate § 3553(a) factors,
(4) selects a sentence based on clearly erroneous facts, or (5) fails to adequately
explain the chosen sentence, including an explanation for any deviation from the
guidelines range. Id. A district court, however, is not required to state that it has
explicitly considered each of the § 3553 factors or to discuss each factor. United
States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007).
In reviewing the substantive reasonableness of a sentence, we consider “the
totality of the circumstances” to determine whether the sentence achieves the goals
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outlined in § 3553(a). United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.
2009). A sentence may be substantively unreasonable where a district court
“unjustifiably relied” on a single § 3553(a) factor, failed to consider relevant
factors, chose the sentence arbitrarily, or considered impermissible factors in
selecting the sentence. Id. Although the district court must provide a “sufficiently
compelling” justification to support a sentence that varies outside the Guidelines,
we will not presume that a sentence outside the Guidelines is unreasonable.
United States v. Mateos, No. 08-17178, slip op. at *32 (11th Cir. Oct. 19, 2010).
In addition, the text of § 3553(a) requires the district court to “impose a sentence
sufficient, but not greater than necessary” to comply with the goals of sentencing
as outlined in that section. 18 U.S.C. § 3553(a) (emphasis added). Accordingly, §
3553(a) requires “not merely that a sentencing court when handing down a
sentence be stingy enough to avoid one that is too long, but also that it be
generous enough to avoid one that is too short.” Irey, 612 F.3d at 1197.
After reviewing the record and reading the parties’ briefs, we conclude that
the district court did not plainly err in failing to state the standard of proof that
applied at sentencing, and even if the court had applied the wrong standard, the
record amply supported the court’s finding that Jackson violated the terms of her
supervised release. In addition, we conclude that the district court did not impose
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a sentence that was “greater than necessary” to achieve the goals of § 3553(a),
and, given the need to protect the public and Jackson’s history of violations of
both probation and supervised release, the district court did not plainly err in
sentencing Jackson above the guideline range. Accordingly, we affirm Jackson’s
total sentence.
AFFIRMED.
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