[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14212 APRIL 30, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00018-CR-CDL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER M. KING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 30, 2009)
Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Christopher M. King appeals his 24-month statutory maximum sentence
upon revocation of supervised release, pursuant to 18 U.S.C. § 3583(e)(3). King
contends that the district court erred in imposing a procedurally and substantively
unreasonable sentence under Gall v. United States, 552 U.S. __, __, 128 S. Ct. 586,
597 (2007), especially because the Guidelines called for a range between 4 to 10
months’ imprisonment.
On November 15, 2007, having pled guilty to one count of theft of a motor
vehicle, the district court sentenced King to 6 months imprisonment, credited in
full for time served, a $1,000 fine, and 3 years supervised release. King’s term of
supervised release began in November 2007. In January 2008, the probation office
filed a petition for revocation, which as amended in May 2008, listed the following
alleged violations of supervised release: (1) theft by receiving stolen property and
fleeing and/or attempting to elude police officers on January 14, 2008; (2) unlawful
possession of ecstasy on January 14, 2008; and (3) four counts of grand theft auto
on military bases from December 7, 2007 through January 12, 2008. The district
court held a hearing, heard witnesses, and sentenced King to 24 months
imprisonment.
“We . . . review a district court’s revocation of supervised release for an
abuse of discretion.” United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir.
2008) (per curiam). “We review the sentence imposed upon the revocation of
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supervised release for reasonableness.” Id. In considering the reasonableness of a
sentence, we employ an abuse of discretion standard. United States v. Ellisor, 522
F.3d 1255, 1273 n.25 (11 th Cir. 2008). “Reasonableness” includes both procedural
and substantive components. Gall, 552 U.S. at __, 128 S. Ct. at 597.
Procedural errors may include the district court’s failure to calculate the
Guidelines range correctly, treatment of the Guidelines as mandatory, failure to
consider the factors in 18 U.S.C. § 3553(a), or failure to explain adequately the
chosen sentence. Id. The district court should consider the § 3553(a) factors, as
well as the defendant’s arguments, at sentencing upon revocation of supervised
release. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per
curiam); 18 U.S.C. § 3583(e). Section 3553(c) requires the district court to state
the reasons for imposing a particular sentence. However, the district court need
not discuss each and every § 3553(a) factor in announcing the sentence. See
Talley, 431 F.3d at 786.
In considering the substantive reasonableness of a sentence, we “may find
that a district court has abused its considerable discretion if it has weighed the
factors in a manner that demonstrably yields an unreasonable sentence.” United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). In other words, if the district
court made a clear error in judgment in weighing the factors, this Court will
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remand for resentencing. Id. If the sentence imposed lies outside of the Guidelines
range, the degree of the variance is relevant to the substantive reasonableness of
the sentence and, in general, “a major departure should be supported by a more
significant justification than a minor one.” Gall, 552 U.S. at __, 128 S. Ct. at 597.
Generally, due deference is owed to “the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Id.
Here, the district court did not abuse its discretion in sentencing King to a
24-month statutory maximum sentence. First, as to procedural reasonableness, the
district court adequately considered the § 3553(a) factors, including (1) the nature
and circumstances of the offense and the history and characteristics of King by
discussing the short amount of time that elapsed between his first conviction and
revocation, the similarity between the underlying offense and the conduct that led
to revocation, and his possession of ecstasy; (2) the need to reflect the seriousness
of the offense, to afford adequate deterrence, to promote respect for the law, to
provide just punishment for the offense, and to protect the public by noting the
futility of King’s initial six-month sentence and the need to deter his escalating
criminal activity; and (3) the advisory Guidelines range. Furthermore, the district
court stated explicitly that it considered the § 3553(a) factors but that it found the
advisory Guidelines range inadequate in light of the totality of the circumstances.
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See Talley, 431 F.3d at 786 (concluding “that an acknowledgment by the district
court that it has considered the defendant’s arguments and the factors in section
3553(a) is sufficient under Booker1 ”). Second, as to substantive reasonableness,
the district court specifically justified its upward variance, considering (1) the
similarity between the underlying offense and the conduct that led to revocation of
his supervised release, i.e., auto theft from a military base in order to commit credit
card fraud; (2) the short time span between the imposition of supervised release
and the revocation, approximately two months; and (3) the fact that King, an army
veteran, continued to steal from fellow soldiers.
Upon review of the record and the parties’ briefs, we conclude that the
district court did not abuse its discretion. Accordingly, we affirm.
AFFIRMED.
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
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