United States v. Marlo Grier

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14100 ELEVENTH CIRCUIT
MARCH 9, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 05-00403-CR-3-CAP-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARLO GRIER,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 9, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

Marlo Grier appeals his ten-month sentence imposed following revocation of

his term of supervised release, 18 U.S.C. § 3583(e). We conclude the sentence
imposed was reasonable and affirm.

In 2006, Grier pleaded guilty to one count of theft of firearms from a

federally licensed firearms dealer, in violation of 18 U.S.C. §§ 922(u). In July

2006, the district court sentenced Grier to twelve months and one day in prison,

followed by three years of supervised release. One of the conditions of Grier’s

supervised release was that he not commit another federal, state, or local crime.

Grier was released from prison in August 2007 and began his term of supervised

release.

In 2009, the probation officer filed a petition for a warrant and an order to

show cause as to why Grier’s supervised release should not be revoked. The

petition alleged, and Grier did not contest, that Grier had violated the conditions of

his release by committing a burglary in Rockdale County, Georgia. The district

court found that Grier was in violation of his supervised release, calculated the

advisory guidelines range as four to ten months’ imprisonment, and sentenced him

to ten months. On appeal, Grier argues that his sentence is substantively

unreasonable in light of the 18 U.S.C. § 3553(a) factors.

We review a sentence imposed following revocation of supervised release

for reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008). In reviewing whether a sentence is reasonable, we must ensure,

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first, that the district court did not commit a 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.” Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169

L.Ed.2d 445 (2007). We must then determine whether the sentence is

substantively reasonable in light of the 18 U.S.C. § 3553(a) factors, using an

abuse-of-discretion standard. Id. at 51, 128 S.Ct. at 597.

Here, Grier argues only that his sentence is substantively unreasonable. As

the party challenging the sentence, Grier bears the burden of showing that it is

unreasonable in light of the record and the § 3553(a) factors. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).

We have “recognize[d] that there is a range of reasonable sentences from

which the district court may choose.” Id. We ordinarily expect a sentence within

the defendant’s advisory guideline range to be reasonable. Id. We “will defer to

the district court’s judgment regarding the weight given to the § 3553(a) factors”

unless we conclude that the district court made a clear error of judgment. United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

We conclude the ten-month sentence is substantively reasonable. Both

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Grier’s original conviction and the violation at issue involved the commission of

burglaries. Therefore, a longer sentence was justified based upon the nature and

circumstances of the violation, Grier’s history and characteristics, the need to

promote respect for the law, and the need to protect the public.

Grier’s sentence is within his advisory guideline range and is fourteen

months less than the statutory maximum. And although Grier cites various

considerations that might weigh in favor of a shorter sentence, such as his lack of

previous violations and his willingness to cooperate in the state investigation into

the burglary, we defer to the district court’s decision to give other considerations

more weight. Because the district court did not abuse its discretion by sentencing

Grier to ten months’ imprisonment, we affirm.

AFFIRMED.

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