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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14684
Non-Argument Calendar
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D.C. Docket No. 1:04-cr-00193-ODE-ECS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ANTONIO SANDERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 23, 2014)
Before TJOFLAT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
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In September 2012, Mark Antonio Sanders, who had been incarcerated on a
120 months prison term for the offense of felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g), began serving a three-year term of supervised
release. In August 2013, his probation officer petitioned the District Court to
revoke the release because he had violated its terms: (1) on July 30, 2013, he had
assaulted a man, Robert Folds, and surrendered to the local police, and was
awaiting trial on a battery charge 1; (2) he tested positive for cocaine on July 23,
2013, and (3) he missed four scheduled drug screens between January and April
2013.
The District Court heard the petition in October 2013. Sanders, through
counsel, did not contest the assault (the battery charge was still pending) and
admitted the other violations. The court agreed with the probation officer’s
calculation of the Guidelines range of seven to 12 months imprisonment given that
Sander’s most serious violation was a Grade C violation and his criminal history
category was V. After granting Sanders his right of allocution, the court sentenced
him to prison for a term of 12 months, with a one-year term of supervised release
to follow. Sanders now appeals the sentence.
Sanders argues that his sentence is both procedurally and substantively
unreasonable. It is procedurally unreasonable, he contends, because the District
1
At the revocation hearing it was disclosed that Sanders had confronted Folds because
Folds was romantically involved with Sanders’s ex-wife, Cynthia Dillard.
2
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Court based its decision upon a clearly erroneous fact. The court indicated that
Sanders’s sentence “needs to deter the defendant from violence while he is in
prison.” Sanders points out that the record contains no evidence that he committed
any previous acts of violence during the time previously in prison.
He argues that the sentence is substantively unreasonable because it exceeds
what was necessary to satisfy the sentencing objectives set out in 18 U.S.C.
§ 3353(a). That is, (1) the sentence does not reflect the nature of the battery
offense; the battery did not result in any serious injury to the victim, and was not
part of a pattern of violence against his ex-wife; (2) his criminal history did not
support a 12-month prison term, because all of his prior convictions were limited
to a remote period between 1990 and 2000, and included only one felony; (3) the
sentence is not proportional to the offense committed, and thereby does not
promote respect for the law; (4) the prison term does nothing to deter Sanders from
committing violent acts; (5) prison term was not necessary to protect the public
and, as far as protecting Sanders’s ex-wife, the court should have applied less
intrusive methods, such as issuing a protective order; (6) the court gave no
consideration to Sanders’s need for education or vocational training; and (7) the
court failed to consider whether a 12-month prison term would result in a sentence
disparity.
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We review a sentence imposed upon revocation of supervised release for
reasonableness, United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008), under the abuse of discretion standard. United States v. Ellisor, 522
F.3d 1255, 1273 (11th Cir. 2008).
A sentence may be procedurally unreasonable if, for example, the district
court (1) failed to calculate, or improperly calculated, the Guidelines range;
(2) failed to consider the § 3553(a) factors; (4) selected a sentence based on clearly
erroneous facts (the allegation here); or (5) failed to adequately explain the chosen
sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d
445 (2007).
Under 18 U.S.C. § 3583(e)(3), 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 after considering certain factors set forth in 18 U.S.C. § 3553(a).
United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). The § 3553(a)
factors that a court must consider in revoking supervised release include: (1) the
nature and circumstances of the offense and the history and characteristic of the
defendant; (2) the need for the sentence imposed to (a) afford adequate deterrence
to criminal conduct, (b) protect the public from further crimes of the defendant,
and (c) provide the defendant with needed educational or vocational training,
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medical care, or other correctional treatment; (3) the sentencing range established
by the Sentencing Guidelines; (4) the pertinent policy statements of the Sentencing
Commission; (5) the need to avoid unwarranted disparities; and (6) the need to
provide restitution to any victims of the offense. 18 U.S.C. § 3583(e); 18 U.S.C.
§ 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7). The court also “shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in”
§ 3553(a)(2). See 18 U.S.C. § 3553(a).
Section7B1.1 of the Sentencing Guidelines defines as a Grade C violation
any conduct that (a) constitutes an offense punishable by one year’s imprisonment
or less, or (b) violates a condition of supervision without constituting a punishable
offense. U.S.S.G. § 7B1.1(a)(3). A defendant who, like Sanders, has his
supervised release revoked for a Grade C violation and had a criminal history
category V at the time of his original conviction is subject to a Guidelines range of
7 to 13 months’ imprisonment. U.S.S.G. § 7B1.4(a).
Sanders fails to meet his burden of demonstrating that his sentence is either
procedurally or substantively unreasonable. First, the District Court did not
mistakenly rely upon the falsity that Sanders had committed acts of violence while
in prison. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Rather, the record shows that the
court’s statement about Sander’s sentence needing “to deter the defendant from
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violence while he is in prison” referred to the prison sentence itself as deterring
him from violence in general, the sentencing objective of § 3553(a)(2)(C).
Moreover, Sanders did not demonstrate that his 12-month prison term and 1
year of supervised release were substantively unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). First, the prison sentence of 12 months
fell within the applicable Guidelines range of 7 to 13 months. Additionally, the
court explicitly discussed several of the 18 U.S.C. § 3583(e) factors, including the
need to deter Sanders from violent acts, the need to protect the public, and the
serious nature of Sanders’s alleged battery and cocaine use. 18 U.S.C.
§§ 3553(a)(1), (a)(2)(B)-(C), 3583(e). Finally, the one-year term of supervised
release will allow a probation officer to monitor an individual who has a history of
drug use and violating the terms of his supervised release. 18 U.S.C.
§§ 3553(a)(1), 3583(e).
The judgment of the District Court is
AFFIRMED.
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