[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12146 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:99-cr-00088-HL-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DETRICH DEMOND WALLER,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(March 23, 2011)
Before HULL, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Detrich Demond Waller appeals his 60-month above-guideline sentence
imposed following revocation of his supervised release. On appeal, Waller argues
that: (1) the district court plainly erred in failing to ask him or his counsel whether he
had been given an opportunity to read and discuss his revocation report with counsel;
(2) his sentence is both procedurally and substantively unreasonable; and (3) the
district court plainly erred in finding that he possessed with intent to distribute
marijuana within 1,000 feet of a recreation center, in violation of O.C.G.A. §
16-13-32.5(a). After careful review, we affirm.
We review de novo the legality of a sentence imposed pursuant to revocation
of a supervised release term. United States v. Mazarky, 499 F.3d 1246, 1248 (11th
Cir. 2007). Waller did not present the alleged revocation report or O.C.G.A. §
16-13-32.5(a) errors to the district court; consequently, to prevail on these issues, he
must show plain error. To demonstrate plain error, Waller “must show that: (1) an
error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it
seriously affected the fairness of the judicial proceedings.” United States v. Gresham,
325 F.3d 1262, 1265 (11th Cir. 2003). We review the district court’s ultimate
sentence imposed upon revocation of supervised release for reasonableness. United
States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). Also, we review for
abuse of discretion a district court’s decision to exceed the Chapter 7 recommended
guidelines range. United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006).
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First, we reject Waller’s claim that the district court plainly erred in failing to
ask him or his counsel whether he had been given an opportunity to read and discuss
his revocation report with counsel, pursuant to Fed.R.Crim.P. 32(i)(1)(A).
Fed.R.Crim.P. 32.1 governs a defendant’s supervised release revocation proceedings.
At his revocation hearing, a person is entitled to: (1) written notice of the alleged
violation; (2) disclosure of the evidence against the person; (3) an opportunity to
appear, present evidence, and question any adverse witness unless the court
determines that the interest of justice does not require the witness to appear; (4)
notice of the person’s right to retain counsel or to request that counsel be appointed
if the person cannot obtain counsel; and (5) an opportunity to make a statement and
present any information in mitigation. Fed.R.Crim.P. 32.1(b)(2). Unlike Rule 32.1,
Rule 32, which relates to “Sentencing and Judgment,” requires that “[a]t sentencing,
the court[] must verify that the defendant and the defendant’s attorney have read and
discussed the presentence report and any addendum to the report.” Fed.R.Crim.P.
32(i)(1)(A).
While Waller attempts to draw a parallel between Rule 32, which applies to
sentencing, and Rule 32.1, which applies to revocation proceedings, nothing in the
plain language of Rule 32.1 requires the district court to ask whether a defendant has
reviewed his revocation report. See Fed.R.Crim.P. 32.1. While Rule 32 specifically
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applies “at sentencing” and requires the district court to ask a defendant whether he
and his attorney have discussed the “presentence report,” Rule 32.1 has no similar
requirement that the court ask the defendant or his attorney whether he has discussed
the revocation report. Fed.R.Crim.P. 32(i)(1)(A); Fed.R.Crim.P. 32.1. Based on the
plain language of Rule 32.1, the district court did not plainly err in failing to ask
Waller or his attorney if they had reviewed the revocation report.
We also find no merit in Waller’s claim that his sentence is procedurally or
substantively unreasonable. In reviewing sentences for reasonableness, we perform
two steps. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we
must “‘ensure that the district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the Guidelines range.’”
Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1 The district court need
1
Under 18 U.S.C.A. § 3583(e), a district court may consider the following § 3553(a) factors
in revoking a term of supervised release: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to afford adequate
deterrence; (3) the need to protect the public; (4) the need to provide the defendant with educational
or vocational training or medical care; (5) the Sentencing Guidelines range; (6) the pertinent policy
statements of the Sentencing Commission; (7) the need to avoid unwanted sentencing disparities;
and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), and (a)(4)-(a)(7).
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not discuss each § 3553(a) factor. United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005). Rather, “[t]he sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356. (2007)
If we conclude that the district court did not procedurally err, we must consider
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 district court fails to achieve the
purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788. The
weighing of § 3553(a) factors is within the court’s discretion, so long as the court has
made no clear error of judgment. See United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010) (en banc) (reviewing government appeal of downward variance),
petition for cert. filed, (U.S. Nov. 24, 2010) (No. 10-727). 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.
Here, the district court correctly calculated Waller’s Chapter 7 sentencing range
as 30 to 37 months’ imprisonment, which Waller does not dispute on appeal, based
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on his original sentencing criminal history category of III and his Grade A violation.
See U.S.S.G. §§ 7B1.1(a)(1)(A)(ii), 7B1.4(a) (table). Although Waller’s sentence
exceeded the advisory sentencing range set out in the Chapter 7 policy statements, the
district court was not required to sentence Waller within that range. Here, the district
court expressly considered the advisory guideline range when it noted that a guideline
sentence was not an appropriate sentence.
Moreover, contrary to Waller’s assertion, the court explictly stated that it had
considered the § 3553(a) factors. The court further stated that Waller’s sentence was
“based on the seriousness of the offense, in order to promote respect for the law, to
provide just punishment for the violation offenses, to afford adequate deterrents to
criminal conduct, and to protect the public.” Specifically, after listening to testimony
about how Waller resisted arrest and attempted to wrestle a Taser away from an
officer, the court found that Waller’s “conduct was reckless as it placed the lives of
officers as well [as] yourself in great jeopardy.” In addition, Waller had multiple
supervised release violations and his possession with intent to distribute violation
constituted a Grade A violation under either state or federal law. Thus, the district
court expressly considered the advisory guideline range, adequately weighed the §
3553(a) factors, and explained its reasons for imposing this above-guideline sentence.
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Lastly, we are unpersuaded by Waller’s claim that the district court plainly
erred in finding that he possessed with intent to distribute marijuana within 1,000 feet
of a recreation center, in violation of O.C.G.A. § 16-13-32.5(a). Pursuant to Georgia
law, it is:
unlawful for any person to manufacture, distribute, dispense, or possess
with intent to distribute a controlled substance or marijuana . . . in, on,
or within 1,000 feet of any real property which has been dedicated and
set apart by the governing authority of any municipality, county, state
authority, or the state for use as a park, playground, recreation center, or
for any other recreation purposes.
Ga. Code Ann. § 16-13-32.5(a). Pursuant to § 16-13-32.5, the State need only show
that the accused knowingly possessed the illegal drugs with the intent to distribute
them, not that he knew he was within 1,000 feet of a protected place. See Jones v.
State, 695 S.E.2d 665, 668 (Ga. Ct. App. 2010) (interpreting § 16-13-32.5(b) which
tracks the language of subsection (a) but applies to housing projects).
Waller has not shown that the district court plainly erred in finding that he
violated Ga. Code Ann. §16-13-32.5(a). Among other things, Waller has not shown
a reasonable probability that his substantial rights were affected. Indeed, even if he
did not violate Ga. Code Ann. § 16-13-32.5(a), Waller still violated his supervised
release by (1) possessing marijuana, (2) possessing marijuana with intent to
distribute, and (3) engaging in the felony obstruction of an officer, all of which he
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does not challenge on appeal. While Waller contends that it is unclear how much this
violation weighed into his ultimate sentence, this contention is without merit. The
district court did not specifically rely on this violation, but, instead, based Waller’s
sentence on his overall conduct which involved possession of a distribution level
quantity of marijuana and resisting arrest. Accordingly, he cannot show a reasonable
probability that the alleged error affected his substantial rights.
AFFIRMED.
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