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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11710
Non-Argument Calendar
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D.C. Docket No. 1:02-cr-00045-ODE-LTW-18
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEATON LAMAR JOHNSON,
a.k.a. White Boy Keith,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 19, 2013)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Keaton Johnson appeals his sentence of 36 months’ imprisonment and one
year of supervised release imposed upon revocation of his supervised release.
Johnson argues that his sentence is procedurally and substantively unreasonable.
After review, we affirm.
I. BACKGROUND
This is not Johnson’s first revocation of supervised release. We review his
earlier revocation and then this one.
A. First Petition for Revocation of Supervised Release
In 2002, Johnson pled guilty to conspiring to distribute cocaine and money
laundering. The district court imposed concurrent 87-month sentences, followed
by five years of supervised release. Later, Johnson’s prison term was reduced to
70 months, pursuant to Federal Rule of Criminal Procedure 35(b). On March 30,
2007, Johnson completed his prison term and began supervised release in the
Northern District of Georgia.
Less than four months later, on July 19, 2007, Johnson’s probation officer
petitioned the district court for a warrant for his arrest and to revoke supervised
release. The petition alleged that Johnson: (1) was charged with new criminal
conduct, driving on a suspended license, in Tennessee; (2) had failed to answer the
probation officer’s questions truthfully concerning his reasons for leaving the
district; and (3) had traveled outside the district without the probation officer’s
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permission. The petition alleged that Johnson had told the probation officer that he
left the district for Tennessee due to an emergency concerning his daughter but that
the official police reports indicated Johnson told the arresting officers in Tennessee
that he was returning from Buffalo, New York.
B. First Revocation Hearing
At a revocation hearing, Johnson admitted the allegations. Johnson and his
fiancé told the district court that Johnson went to New York to sell some of her
jewelry because they were having financial problems and that Johnson was
returning from New York with the proceeds when he was arrested in Tennessee.
Johnson admitted asking Charmane Porter, the woman arrested with him in
Tennessee, to claim that the money belonged to her because Johnson feared his
probation officer would think he had returned to drug dealing.
The district court found that Johnson had violated the conditions of his
supervised release. The district court stated that Johnson’s explanation for why he
was outside the district “[did] not compute” and found that Johnson “in fact [was]
lying still about what actually happened.” The district court further found that the
advisory guidelines range of three to nine months’ imprisonment was not adequate.
The district court revoked Johnson’s supervised release and imposed a twelve-
month sentence, followed by three years of supervised release.
C. Second Petition for Revocation of Supervised Release
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On August 15, 2008, Johnson was released from prison and began serving
his second period of supervised release. In May 2010, Johnson’s probation officer
again petitioned the district court for a warrant for Johnson’s arrest. The petition
alleged that Johnson had failed to report to the probation officer for the last two
months and his whereabouts were unknown.
Johnson’s whereabouts remained unknown for almost three years, until
February 2013, when Johnson was arrested in Texas for presenting a fictitious
driver’s license to Transportation Security Administration officers at an airport.
Johnson’s probation officer then filed an amended petition, including this February
2013 arrest.
D. Second Revocation Hearing
At his second revocation hearing, Johnson admitted the allegations in the
amended petition and did not oppose revocation of supervised release. Johnson
requested a sentence within the advisory guidelines range of three to nine months.
In mitigation, Johnson explained that he panicked after a traffic accident and
chose to abscond rather than risk revocation. Johnson said that, at that time of his
accident, his oldest son was facing an attempted murder charge, his grandson was
hospitalized and later passed away, and his mother was in poor health and having
financial troubles. Johnson submitted letters from his oldest son, his daughter, his
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girlfriend, and his girlfriend’s daughter, all of whom spoke generally of Johnson as
a caring and supportive father.
The government asked for the maximum four-year sentence, noting that:
(1) the circumstances of Johnson’s Texas arrest raised suspicions that Johnson had
returned to the drug trade; (2) Johnson absconded for almost three years; (3) this
was Johnson’s second revocation, and he had served a one-year term after his first
revocation; and (4) at Johnson’s original sentencing, he received an 87-month
sentence, below the ten-year mandatory minimum, and then later received a
reduction to 70 months based on his cooperation.
Johnson’s counsel objected to the government’s speculation that Johnson
had re-engaged in drug activity, noting that there was no evidence of drug
involvement in Texas. When the district court pointed out that there was also no
evidence of any non-drug-related activity in Texas, Johnson’s counsel stated that
Johnson was in Texas for a bike event.
The district court sentenced Johnson to a three-year term, followed by one
year of supervised release. In considering “the 3553 factors,” the district court
emphasized the importance of “promoting respect for the law,” and that Johnson
“just disregarded the court’s instructions as far as supervised release goes,” and
“just basically decided that what he wanted to do was more important.” The
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district court further noted that the sentence was imposed as “punishment for Mr.
Johnson’s just skipping out on supervised release.”
The district court stated it was “struck” by the letters from Johnson’s family
and acknowledged that his family regarded him as a good father. The court
concluded, however, that Johnson had offered “no real explanation for what
happened here.” The district court stressed that Johnson “decided to absent
himself from the court’s supervision for several years.” The district court
acknowledged that it could not speculate about Johnson’s activities in Texas,
stating, “I won’t do that, but it just seems to me that there ought to be more
information coming in about what Mr. Johnson was doing during the period when
he was absconding from supervised release.” The district court credited Johnson’s
explanation of the family problems at the time that he absconded, but concluded
that the explanation was not sufficient, stating that if Johnson had not been caught
in Texas, he would “still be out on the lamb.” Finally, the district court opined that
Johnson’s case was not a “good case for giving him a break,” because he had
already received a break on his original sentence, and it was Johnson’s second
revocation.
Johnson objected “to the substantive reasonableness of the length of the
sentence” and “to the substantive reasonableness of the imposition of an additional
year of supervised release.” Johnson then appealed.
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II. DISCUSSION
A. General Principles
Pursuant to 18 U.S.C. § 3583(e), a district court may revoke a term of
supervised release and impose a term of imprisonment after considering certain
factors set forth in 18 U.S.C. § 3553(a). The district court also must consider the
policy statements in Chapter 7 of the Sentencing Guidelines, including
recommended, non-binding ranges of imprisonment. United States v. Silva, 443
F.3d 795, 799 (11th Cir. 2006); U.S.S.G. § 7B1.4.
Here, the parties do not dispute that, with a Grade C violation and a criminal
history of I, Johnson’s recommended guidelines range under advisory Chapter 7
was three to nine months’ imprisonment. See U.S.S.G. § 7B1.4(a). Because
Johnson was on supervised release for a Class A felony, the statutory maximum
sentence upon revocation was five years. See 18 U.S.C. § 3583(e)(3). However,
Johnson had already served one year after his first revocation. Thus, at Johnson’s
second revocation, the district court was authorized to impose up to four years of
supervised release. See United States v. Williams, 425 F.3d 987, 989 (11th Cir.
2005) (concluding that “§ 3582(e)(3)’s statutory maximums apply in the
aggregate” for sentences imposed on multiple revocations of supervised release).
“We review the sentence imposed upon revocation of supervised release for
reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252
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(11th Cir. 2008). Our reasonableness review applies the deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 46, 128 S. Ct. 586,
591, 594 (2007). We first examine whether the district court committed any
significant procedural error and then whether the sentence is substantively
unreasonable in light of the § 3553(a) factors and the totality of the circumstances.
United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). The party
challenging the sentence has the burden to show it is unreasonable. United States
v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
If the district court decides to impose an upward variance, “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. Williams, 526
F.3d 1312, 1322 (11th Cir. 2008) (quoting Gall, 552 U.S. at 50, 128 S. Ct. at 597).
However, we will vacate such a sentence “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.” United States v. Shaw,
560 F.3d 1230, 1238 (11th Cir. 2009) (internal quotation marks omitted).
B. Procedural Reasonableness
Johnson contends his sentence is procedurally unreasonable because the
district court improperly speculated that Johnson had committed additional
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criminal conduct in Texas. 1 A sentence is procedurally unreasonable if the district
court, inter alia, selected a sentence based on clearly erroneous facts. See Gall,
552 U.S. at 51, 128 S. Ct. at 597; see also United States v. Barrington, 648 F.3d
1178, 1197 (11th Cir. 2011) (explaining that the district court “may not speculate
about the existence of a fact that would result in a higher sentence” and instead the
government must prove the fact by “reliable and specific evidence” (internal
quotation marks omitted)).
The record belies Johnson’s claim. In explaining the sentence, the district
court explicitly stated that it would not speculate on whether Johnson was engaged
in wrongdoing in Texas. Rather, the district court merely observed that, although
Johnson was requesting mitigation, he had provided “no real explanation” of his
whereabouts during the nearly three years he was a fugitive. The district court’s
comments reflected its frustration with Johnson’s failure to explain adequately his
activities over that three-year period and its unwillingness to give Johnson yet
another “break” in light of that failure.
C. Upward Variance and Substantive Reasonableness
Johnson argues that his 36-month sentence is “unreasonably harsh.” While
Johnson’s sentence is above the recommended guidelines range in Chapter 7, it
1
The government contends we should review Johnson’s procedural reasonableness claim
only for plain error because he did not raise this procedural objection to his sentence in the
district court. We need not decide if plain error review applies because we conclude that there
was no procedural error, plain or otherwise.
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was 12 months below the statutory maximum. Furthermore, the totality of the
circumstances warranted the upward variance.
Johnson not only failed to report to his probation officer, he also absconded
from supervised release for three years and was found only after he was arrested in
Texas. Although Johnson explained that he initially absconded because he
“panicked” after his accident, he did not provide a satisfactory explanation for why
he then remained a fugitive for almost three years and appeared to have no
intention of turning himself in when he was caught by authorities. Additionally,
this was Johnson’s second revocation, and the one-year sentence he received for
his first revocation had not deterred him from violating the terms of his supervised
release again. Finally, as the district court noted, Johnson had received a
significant sentence reduction of 17 months as a result of the government’s Rule
35(b) motion. See U.S.S.G. § 7B1.4, cmt. n.4 (providing that “an upward
departure may be warranted” if the defendant’s “original sentence was the result of
a downward departure (e.g., as a reward for substantial assistance)”). Under the
totality of the circumstances, we cannot say the district court abused its discretion
when it imposed a 27-month upward variance.2
D. Relevant Factors in Revocations and Substantive Reasonableness
2
In addition, Johnson has not shown that the district court’s decision to impose an
additional year of supervised release after his three-year prison term was an abuse of discretion.
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Johnson alternatively contends his sentence is substantively unreasonable
because the district court considered improper factors. A revocation sentence may
be substantively unreasonable if it is “based entirely” on impermissible factors.
Velasquez Velasquez, 524 F.3d at 1252.
Specifically, Johnson points to the district court’s comments about
“promoting respect for the law” and “punishment” and argues that those factors
were omitted from 18 U.S.C. § 3582(e)(3)’s list of factors to consider.
In initial sentencing, courts consider the § 3553(a) factors which are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant
(D) to provide the defendant with needed educational or
vocation training, medical care, or other correctional treatment in the
most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established [under
the Sentencing Guidelines or federal statute];
(5) any pertinent policy statement [of the Sentencing Commission or
Congress];
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
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Revocations of supervised release are governed by 18 U.S.C. § 3583(e).
Section 3583(e) provide that a district court “may, after considering the factors set
forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7)” revoke a term of supervised release. 18 U.S.C. § 3583(e)(3). In other
words, § 3583(e)(3) references most, but not all, of the § 3553(a) factors, and does
not reference the factors in 18 U.S.C. § 3553(a)(2)(A)—“the need for the sentence
imposed . . . to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense.”
Ordinarily, we review de novo whether the district court considered an
impermissible factor. Velasquez Velasquez, 524 F.3d at 1252. Because Johnson
did not object to his sentence on this ground in the district court, however, we
review this claim only for plain error. United States v. Castro, 455 F.3d 1249,
1251 (11th Cir. 2006). Here, Johnson has not shown plain error.
First, even assuming arguendo that the district court considered the factors in
§ 3553(a)(2)(A), it is not “plain” that those factors are impermissible in the
revocation context. Section 3583(e)(2) contains a list of factors district courts are
obligated to consider but that list does not purport to be exhaustive and does not
identify any impermissible factors. Thus, § 3582(e)(3) does not explicitly prohibit
consideration of the factors in § 3553(a)(2)(A).
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Neither this Court nor the Supreme Court has addressed whether it is error to
consider a factor listed in § 3553(a)(2)(A) in imposing a sentence after revoking
supervised release. Other circuits that have addressed this issue do not agree. The
First, Second, Third, and Sixth Circuits have concluded that it is not error, while
the Fourth, Fifth, and Ninth Circuits concluded that it is error. Compare United
States v. Vargas-Davila, 649 F.3d 129, 131-32 (1st Cir. 2011); United States v.
Young, 634 F.3d 233, 238-39 (3d Cir. 2011); United States v. Lewis, 498 F.3d
393, 399-400 (6th Cir. 2007); United States v. Williams, 443 F.3d 35, 47-48 (2d
Cir. 2006); with United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011); United
States v. Crudup, 461 F.3d 433, 438-39 (4th Cir. 2006); United States v. Miqbel,
444 F.3d 1173, 1181-83 (9th Cir. 2006). Under such circumstances, any alleged
error cannot be “plain.” See United States v. Moriarty, 429 F.3d 1012, 1019 (11th
Cir. 2005) (explaining that an error cannot be plain “[w]hen neither the Supreme
Court nor this Court has resolved an issue, and other circuits are split on it”).
Second, even assuming it was error to consider the factors in
§ 3553(a)(2)(A) in the revocation context, a review of the district court’s
comments as a whole convinces us that the district court did not do so here.
Subsection (a)(2)(A) is concerned with the seriousness of the defendant’s offense
and the need to promote respect for the criminal law the defendant violated and to
provide just punishment for the defendant offense. Sentences imposed upon
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revocation, on the other hand, are not directed toward “any new criminal conduct”
committed by the defendant. U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b). Instead,
revocation sentences are imposed primarily as a sanction for the defendant’s
breach of trust. Id. (explaining that “at revocation the court should sanction
primarily the defendant’s breach of trust, while taking into account, to a limited
degree, the seriousness of the underlying violation and the criminal history of the
violator”).
Here, the district court, after stating that “promoting respect for the law” was
important, pointed out that Johnson had “disregarded the court’s instructions as far
as supervised release goes” and instead “decided that what he wanted to do was
more important.” The district court then stated that Johnson’s sentence was
“punishment” for “just skipping out on supervised release.” In other words, the
district court’s concern was for Johnson’s flagrant disregard of the court-ordered
terms of his supervised release and not for Johnson’s possible violation of any
criminal statutes. The district court appropriately considered Johnson’s breach of
trust and “to a limited degree” the seriousness of Johnson’s violations. See
U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b). Significantly, the district court’s stated
concerns were equally relevant to other, explicitly permissible factors under
§ 3583(e)(3), such as the nature and circumstances of Johnson’s violations (i.e., his
blatant disregard of the court-ordered terms of supervised release) and the need to
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afford deterrence of further such blatant violations (either by Johnson or others).
For these reasons, we are convinced the district court did not in fact consider either
“promot[ing] respect for the law” or “provid[ing] just punishment for the offense”
as those phrases are used in § 3553(a)(2)(A).
For all these reasons, Johnson has not carried his burden to show that his 36-
month sentence is substantively unreasonable.
AFFIRMED.
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