[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 30, 2009
No. 08-12888 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 93-00473-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY DELANEY HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 30, 2009)
Before BIRCH, CARNES and HULL, Circuit Judges.
PER CURIAM:
Ricky Delaney Harris appeals the district court’s order revoking his
supervised release and sentencing him to 24 months imprisonment. The district
court found that Harris violated his supervised release when he burglarized Charles
Mosby’s house. Harris contends that the government’s evidence failed to establish
conclusively that he entered Mosby’s house—a required element of burglary under
Georgia law—as neither Mosby nor the police officer arriving on the scene, Milton
Latcher, testified to seeing Harris in the house. Harris argues that the court
violated his due process rights by refusing to allow him to test the weight and
sufficiency of the government’s evidence. He also challenges his sentence as
procedurally unreasonable because the district court focused exclusively on the
nature of the offense, did not consider other 18 U.S.C. § 3553(a) factors, and
refused to hear mitigation evidence when imposing his sentence. We affirm.
I.
We review the district court’s decision to revoke supervised release for
abuse of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994).
The district court’s findings of fact made at the revocation proceeding are binding
and will not be overturned unless they are clearly erroneous. United States v.
Almand, 992 F.2d 316, 318 (11th Cir. 1993). We cannot find clear error unless we
are “left with a definite and firm conviction that a mistake has been committed.”
United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (internal
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quotation marks omitted). “The credibility of a witness is in the province of the
factfinder and this court will not ordinarily review the factfinder’s determination of
credibility.” United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994). “Under
18 U.S.C. § 3583(e), 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 require the defendant to serve prison time. United
States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).
At the revocation hearing, Officer Latcher testified that when he responded
to Mosby’s 911call he saw Harris walking away from the porch of the Mosby
house with a window screen trapped on his left arm. He also noted that Harris was
shoeless and had multiple puncture wounds on his bare feet. Mosby testified that
he heard the intruder roaming around the house as he hid in his bedroom, later
found bloody footprints throughout his home, and saw police apprehend Harris in
his front yard after a 911 dispatcher told him it was safe to come outside.
Latcher’s and Mosby’s testimony was sufficient, if believed, to establish that
Harris was inside Mosby’s house, and the district court’s decision to credit their
testimony was not clear error. Nothing in the record creates a definite and firm
conviction that any of the district court’s findings were erroneous. Moreover,
because the court permitted Harris to cross-examine the government’s witnesses,
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make a statement and argument, and present evidence and testimony, his due
process rights were not violated. Accordingly, the district court was well within its
discretion to revoke Harris’ supervised release based on its finding that Harris
burglarized Mosby’s home.
II.
We review sentencing decisions for abuse of discretion using a two-step
process, looking first to whether the district court committed a procedural error
such as incorrectly calculating the guidelines, treating the guidelines as mandatory,
failing to consider the § 3553(a) factors, imposing a sentence based on clearly
erroneous facts, or failing to explain the chosen sentence adequately. Gall v.
United States, 552 U.S. at __, 128 S. Ct. 586, 597 (2007). If we find the sentence
procedurally sound, we then consider its substantive reasonableness under the
totality of the circumstances. Id. Harris sufficiently argues only procedural
error—that the district court failed to consider all of the § 3553(a) factors and
instead focused exclusively on the nature of the offense—and he raises that
argument for the first time on appeal. Where a defendant does not present an
argument or objection to the district court, our review is only for plain error.
United States v. Evans, 478 F.3d 1332, 1338 (11th Cir. 2007).
A district court may revoke a term of supervised release and impose a
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sentence of imprisonment under § 3583(e) after considering the factors set forth in
§ 3553(a). See 18 U.S.C. § 3583(e). The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence
imposed–. . . (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and (D)
to provide the defendant with needed . . . [treatment] . . .; (4) the kinds
of sentence and the sentencing range . . .; (5) any pertinent policy
statements . . . (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.
Id. § 3553(a). However, the district court is not required to discuss each § 3553(a)
factor. United States v. Dorman, 488 F.3d 939, 944 (11th Cir. 2007). “The weight
to be accorded any given § 3553(a) factor is a matter committed to the sound
discretion of the district court,” and we will not remand for resentencing unless 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.” See United States v.
Clay, 483 F.3d 739, 743 (11th Cir. 2007) (internal quotation marks omitted).
Contrary to Harris’ contention, the district court considered more than just
the underlying crime in determining his sentence. In addition to the offense
conduct, the court noted Harris’ “long conviction record,” which included armed
robberies and other violence; his unwillingness to apologize for his wrongdoing;
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his belief that he was always “aggrieved in some fashion;” his inability “to follow
the rules;” and the fact that he was “very dangerous.” The court’s discussion of
these factors provided a clear review of the nature and circumstances of the
offense, Harris’ history and characteristics, the need for the sentence imposed to
afford adequate deterrence, and the need to protect the public from Harris’ further
crimes. Although Harris testified that he had learned to accept responsibility for
his actions, the district court was entitled to place great weight on the other factors
and to determine that they outweighed Harris’ newfound sense of accountability.
Finally, Harris argues that the district court erred by not allowing him to
present mitigation evidence that might have affected his sentence. The record
demonstrates, however, that the court offered Harris additional time to be heard.
Harris declined this opportunity. While the record may support an inference that
the district court was impatient or displeased with Harris’ testimony, which the
court considered perjurous, the court nonetheless met its obligation to Harris by
offering him time to present his evidence. Harris’ choice to forgo that time, based
on his belief that he could not change the court’s decision, was his and his alone.
The district court did not err in sentencing Harris to 24 months imprisonment.
AFFIRMED.
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