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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11618
________________________
D.C. Docket No. 1:01-cr-00043-MP-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHANNON PARKS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(May 20, 2016)
Before WILSON, MARTIN, and HIGGINBOTHAM, ∗ Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
* Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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Appellant Shannon Parks admitted to two violations of his conditions of
supervised release. With an applicable guideline range of 21-27 months, the
district court sentenced him to the statutory maximum—60 months. Parks urges
that the district court committed two procedural errors: (1) it failed to consider the
18 U.S.C. § 3553(a) factors; and (2) it failed to give a “specific reason” for his
non-guideline sentence, as required by 18 U.S.C. § 3553(c)(2). As he did not
adequately object to these asserted errors, we must confront whether Parks faces
the hurdle of plain error.
I.
Parks pled guilty to one count of felon in possession of a firearm and, in
November 2001, was sentenced to 195 months in prison followed by five years of
supervised release. On a Government motion under Federal Rule of Criminal
Procedure 35, his sentence was reduced to 147 months in prison, and he was
released from federal custody on September 18, 2012. Fifteen months later, Parks
was arrested by state authorities. On March 9, 2015, he pled guilty in state court to
two counts of burglary of a structure and two counts of grand theft; he was
sentenced to 455 days with credit for time served. That same day, Parks was taken
into custody by federal authorities.
2
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The Government alleged that Parks had committed two Grade B violations
of his conditions of supervised release.1 Given his criminal history category of
VI, the applicable guideline range was 21 to 27 months.2 The district court held a
final revocation hearing on April 8, 2015. Parks admitted to the two violations, but
asked the district court to reinstate his term of supervised release. After a short
hearing, the district court sentenced Parks to the statutory maximum of 60 months.
The district court provided the following explanation for this sentence:
The defendant having admitted to the two violations, it is the
judgment of the Court that his supervision be revoked; it is hereby
revoked. This defendant is committed to the custody of the Bureau of
Prisons for a term of 60 months. This is the statutory maximum
sentence. But I direct also that he be given credit for the 455 days
time served in the Dixie County Jail against that sentence. No
additional supervision will be imposed. So the sentence imposed by
this Court is 60 months with a credit of 455 days.
When the district court asked Parks if he had any objections, his counsel “lodge[d]
an objection as to the sentence, given the fact that it is local guideline range in
conjunction with the circumstances of the offense for purposes of the appeal.”
Parks now appeals his sentence to this Court.
II.
Parks raises two claims of error on appeal. First, he argues that the district
court failed to discuss the 18 U.S.C. § 3553(a) factors. Although a district court
1
See U.S.S.G. § 7B1.1(a)(2) (defining a Grade B violation as “conduct constituting any
other federal, state, or local offense punishable by a term of imprisonment exceeding one year”).
2
See U.S.S.G. § 7B1.4(a) (sentencing table).
3
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“need not discuss each of these factors in either the sentencing hearing or in the
sentencing order,” 3 this Court has held that it must at least “acknowledge[]” that it
“considered” these factors.4 Parks contends that the district court pronounced his
sentence without acknowledging the § 3553(a) factors. Second, Parks argues that
the district court failed to comply with 18 U.S.C. § 3553(c). Under § 3553(c)(2),
the district court “shall state in open court the reasons for its imposition of the
particular sentence, and if the sentence” is outside the applicable guideline range
“the specific reason for the imposition of [that] sentence.”
A.
We turn first to an antecedent question, whether § 3553(c) applies to
sentences imposed for supervised release violations—as opposed to sentences
imposed for substantive federal crimes. At least one court has concluded that
§ 3553(c) does not apply to revocation proceedings. 5 Section 3553(c) provides:
(c) Statement of reasons for imposing a sentence.--The court, at the
time of sentencing, shall state in open court the reasons for its
imposition of the particular sentence, and, if the sentence--
3
United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007) (emphasis omitted).
4
United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007); accord United States v.
Beckles, 565 F.3d 832, 846 (11th Cir. 2009).
5
See United States v. White Face, 383 F.3d 733, 739 (8th Cir. 2004); see also United
States v. Johnson, 640 F.3d 195, 206 (6th Cir. 2011) (“There has been some debate in this circuit
regarding whether the requirement of § 3553(c)(2) to state ‘the specific reason’ for varying or
departing from the advisory Guidelines range applies to supervised-release violations, as
distinguished from initial sentences.”).
4
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(1) is of the kind, and within the range, described in subsection
(a)(4) and that range exceeds 24 months, the reason for
imposing a sentence at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in
subsection (a)(4), the specific reason for the imposition of a
sentence different from that described, which reasons must also
be stated with specificity in a statement of reasons form issued
under section 994(w)(1)(B) of title 28, except to the extent that
the court relies upon statements received in camera in
accordance with Federal Rule of Criminal Procedure 32. In the
event that the court relies upon statements received in camera in
accordance with Federal Rule of Criminal Procedure 32 the
court shall state that such statements were so received and that
it relied upon the content of such statements.
Only subsection (c)(2) is at issue in this case. This provision requires the district
court to state “the specific reason for the imposition of a sentence” if that sentence
is “outside the range, described in subsection (a)(4).” Subsection (a)(4)—which
lists one of the “[f]actors to be considered in imposing a sentence”—“describe[s]”
two types of sentencing ranges:
the kinds of sentence and the sentencing range established for--
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines--
(i) issued by the Sentencing Commission pursuant to
section 994(a)(1) of title 28, United States Code, subject
to any amendments made to such guidelines by act of
Congress (regardless of whether such amendments have
yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28);
and
(ii) that, except as provided in section 3742(g), are in
effect on the date the defendant is sentenced; or
5
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(B) in the case of a violation of probation or supervised release,
the applicable guidelines or policy statements issued by the
Sentencing Commission pursuant to section 994(a)(3) of title
28, United States Code, taking into account any amendments
made to such guidelines or policy statements by act of Congress
(regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into amendments
issued under section 994(p) of title 28).
Our analysis starts and ends with the text of these two subdivisions. As the
Sixth Circuit has explained, “the plain language of 18 U.S.C. § 3553 provides that
§ 3553(c)(2) applies to supervised-release-revocation proceedings: § 3553(c)(2)
requires a specific statement of reasons for all outside-advisory-range sentences
that fall under § 3553(a)(4), which in turn explicitly includes sentences for
supervised-release violations.” 6 This reading of § 3553(c)(2) is consistent with the
decisions of at least four other circuits.7 It is also consistent with two decisions of
this Court applying § 3553(c)(2) to sentences imposed for violations of federal
probation8—which are determined using the same table as sentences imposed for
violations of supervised release. Accordingly, we hold that § 3553(c)(2) applied to
Parks’s sentencing hearing.
B.
6
See Johnson, 640 F.3d at 206-07.
7
See id.; In re Sealed Case, 527 F.3d 188, 192-93 (D.C. Cir. 2008); United States v.
Lewis, 424 F.3d 239, 245 (2d Cir. 2005); United States v. Musa, 220 F.3d 1096, 1101 (9th Cir.
2000).
8
See United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006) (per curiam) (noting that
the district court “stated its reasons for imposing a sentence outside the range as it was obligated
to do under § 3553(c)(2)” (emphasis added)); United States v. Cook, 291 F.3d 1297, 1302 n.7
(11th Cir. 2002) (per curiam).
6
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The central issue in this case is the proper standard of review. The
Government urges that the applicable standard of review for both of Parks’s claims
is plain error. Beyond the general principle that arguments raised for the first time
on appeal are reviewed for plain error,9 the Government relies heavily on this
Court’s decision in United States v. Vandergrift. 10 Vandergrift received a
24-month sentence for violating the conditions of his supervised release. On
appeal, he “challenge[d] the procedural reasonableness of his 24-month sentence,
arguing that the district court relied on impermissible factors in arriving at the
sentence.”11 “[B]ecause Vandergrift did not object [on the basis of] procedural
reasonableness at the time of his sentencing,” 12 this Court reviewed this claim for
plain error. Quoting from a 1990 case, we explained: “Where the district court has
offered the opportunity to object and a party is silent or fails to state the grounds
for objection, objections to the sentence will be waived for purposes of appeal, and
this court will not entertain an appeal based upon such objections unless refusal to
do so would result in manifest injustice.” 13 The Government asserts that
Vandergrift’s reasoning applies here because (a) both of Parks’s claims challenge
9
See, e.g., United States v. Madden, 733 F.3d 1314, 1319 (11th Cir. 2013).
10
754 F.3d 1303 (11th Cir. 2014).
11
Id. at 1307.
12
Id.
13
Id. (quoting United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990), overruled on
other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc) (per
curiam)).
This Court “equates manifest injustice with the plain error standard of review.” Id.
(quoting United States v. Quintana, 300 F.3d 1227, 1232 (11th Cir. 2002)).
7
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the procedural reasonableness of his sentence; (b) the district court provided Parks
with an opportunity to object; and (c) he did not object on the basis of either
§ 3553(a) or § 3553(c)(2).
Parks has two responses to this argument. First, that Vandergrift—and plain
error review—are inapplicable because he did object at sentencing. We disagree.
“To preserve an issue for appeal, ‘one must raise an objection that is sufficient to
apprise the trial court and the opposing party of the particular grounds upon which
appellate relief will later be sought.’” 14 When the district court offered Parks an
opportunity to object, he “lodge[d] an objection as to the sentence, given the fact
that it is local guideline range in conjunction with the circumstances of the offense
for purposes of the appeal.” This statement was, at best, a general objection to the
length of his sentence and insufficient to apprise the district court of Parks’s
objection—it did not target § 3553(a) or § 3553(c)(2). It is now rote that “[a]
sweeping, general objection is insufficient to preserve specific sentencing issues
for review.” 15
Parks’s second response is that United States v. Bonilla 16 instructs that “[t]he
question of whether a district court complied with 18 U.S.C. § 3553(c)(1) is
14
United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (quoting United States v.
Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986)).
15
United States v. Carpenter, 803 F.3d 1224, 1238 (11th Cir. 2015).
16
463 F.3d 1176 (11th Cir. 2006).
8
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reviewed de novo, even if the defendant did not object below.”17 Section
§ 3553(c)(1) provides that the district court “shall state in open court” the “reason
for imposing a sentence at a particular point within” a guideline range if “that
range exceeds 24 months.” There is no discernible reason to treat subsections
(c)(1) and (c)(2) differently for purposes of the standard of review. Both
subsections require the district court to give reasons, albeit for different categories
of sentences, and this Court has applied Bonilla to § 3553(c)(2) claims in at least
two different unpublished decisions. 18 As a result, Parks’s argument that this
Court should review his § 3553(c)(2) claim de novo, even though he “did not
object below,” has purchase.
The Government counters that Bonilla is irreconcilable with Vandergrift and
urges this Court to resolve the conflict between these two lines of authority. 19
Under this Court’s case law, “[w]hen circuit authority is in conflict, a panel should
look to the line of authority containing the earliest case because a decision of a
prior panel cannot be overturned by a later panel.” 20 If we were to apply this rule,
Vandergrift would likely prevail because it relies on a case that predates Bonilla.
This approach is sound as far as it goes, but there is more— “[a] panel of this
17
Id. at 1181.
18
See United States v. Gonzalez-Rodriguez, 301 F. App’x 874, 879 (11th Cir. 2008);
United States v. Stark, 262 F. App’x 930, 935 (11th Cir. 2008).
19
See also United States v. Jenkins, No. 15-12064, 2016 WL 1211819, at *2 n.2 (11th
Cir. Mar. 29, 2016) (noting potential conflict between Bonilla and Vandergrift).
20
Arias v. Cameron, 776 F.3d 1262, 1273 n.8 (11th Cir. 2015).
9
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Court is obligated, if at all possible, to distill from apparently conflicting prior
panel decisions a basis of reconciliation and to apply that reconciled rule.” 21 While
we must agree that Bonilla and Vandergrift are in tension, we are not persuaded
that they are irreconcilable.
Bonilla relied on earlier decisions that provide a limited explanation for its
holding: “Congress has specifically proclaimed that a sentencing court shall state
‘the reason for imposing a sentence [exceeding 24 months] at a particular point
within the range.’ . . . When a sentencing court fails to comply with this
requirement, the sentence is imposed in violation of law.”22 This explanation is far
from pellucid, but it does suggest why plain error review may not apply to
§ 3553(c) claims. Plain error review is primarily intended to deter defendants from
“saving an issue for appeal in hopes of having another shot at trial if the first one
misses” or “sandbagging.”23 Contemporaneous objection affords an opportunity
for the district court to correct a mistake—a correction a defendant may not always
want. The high hurdle of plain error review reduces incentives not to object. This
hurdle also promotes another related but distinct “salutary interest”: it “allows trial
21
United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (emphasis added).
Reconciliation, of course, is not necessary if “the facts of the case at hand are such that
resolution of the conflict is unnecessary to dispose of the case.” Id. But as the parties seem to
recognize, this is not such a case.
22
Bonilla, 463 F.3d at 1181 n.3 (alterations in original) (quoting United States v.
Williams, 438 F.3d 1272, 1274 (11th Cir. 2006) (per curiam) (quoting United States v. Veteto,
920 F.2d 823, 826 (11th Cir. 1991))).
23
United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998); see also Puckett v. United
States, 556 U.S. 129, 134 (2009); United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007).
10
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courts to develop a full record” for appellate review by giving the trial judge the
opportunity to state her reasons for overruling a defendant’s objections. 24
This function is critical within the complex arena of federal sentencing.
Parks, for instance, asserts that the district court did not consider the § 3553(a)
factors. Simple as a legal matter, the empty record confounds resolution of Parks’s
claim. The district court may have evaluated the § 3553(a) factors, but neglected
to acknowledge them in open court, or they may have slipped past in the harried
pace of a busy sentencing calendar. If Parks had timely objected, this Court would
not be faced with this uncertainty. Plain error review penalizes Parks for failing to
raise this clarifying objection and incentivizes future defendants not to do the
same. These powerful realities have a different play with Parks’s § 3553(c)(2)
claim. Because § 3553(c)(2) affirmatively requires the district court to provide a
specific reason for a non-guideline sentence, a silent record exposes the error. As
noted in Bonilla, the sentencing transcript will reflect that the sentence is illegal for
want of a required statement. A contemporaneous objection is thus not needed to
serve one of plain error review’s central objectives—record development for
appellate review.
We conclude that this distinction provides a plausible basis for reconciling
Bonilla and Vandergrift. Vandergrift will be deployed in most procedural
24
Pielago, 135 F.3d at 709.
11
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sentencing cases given its strong response to tactical silence. Bonilla brings an
exception for defendants raising claims that can be evaluated on a silent record.25
This reconciliation is not perfect, as the contemporaneous objection rule plays an
equally beneficial role in cases involving § 3553(c) claims. But we are charged
with determining if it is “possible” to reconcile Bonilla and Vandergrift on a
principled basis—not if it is simply preferable as a matter of first principles. 26 We
also remind that an alert prosecutor, in the service of the Government’s interests,
ought not be hesitant to bring oversights to the attention of the trial judge. We are
persuaded to review Parks’s § 3553(c)(2) claim de novo —which presents under
Bonilla—and Parks’s § 3553(a) claim by the metric of plain error—which presents
under the general Vandergrift rule.
C.
We turn to de novo review of Parks’s § 3553(c)(2) claim. Under
§ 3553(c)(2), the district court was required to “state in open court” the “specific
reason for the imposition” of Parks’s non-guideline sentence.27 The record reflects
25
See, e.g., United States v. Matute, 631 F. App’x 676, 678 (11th Cir. 2015) (applying
Bonilla as an exception to the general plain error rule); United States v. Contino, 608 F. App’x
817, 819 (11th Cir. 2015) (same); United States v. Beyra, 532 F. App’x 848, 852 (11th Cir. 2013)
(same).
26
Hogan, 986 F.2d at 1369; see also United States v. Rodriguez-Velasquez, 132 F.3d 698,
699 n.1 (11th Cir. 1998) (per curiam) (recognizing this obligation); United States v. Wiggins, 131
F.3d 1440, 1444 n.4 (11th Cir. 1997) (per curiam) (same).
27
It was also required to state this reason “with specificity in a statement of reasons
form,” but Parks does not challenge the district court’s apparent failure to comply with this part
of § 3553(c)(2).
12
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that the district court did not provide any reason for Parks’s sentence. The
Government urges that we discern an explanation for Parks’s sentence by
examining “the record from the entire sentencing proceeding”—not just the
“district court’s summary statement made at the closing of the sentencing
hearing.”28 That is, the Government argues that the district court did three things
over the course of the entire sentencing proceeding that add up to a “specific
reason”: (1) it acknowledged the 21 to 27 month guideline range; (2) it asked
whether Parks served his state sentence “[a]s part of the state process and not the
federal process”; and (3) it gave him credit for the 455 days served in county jail.
Here, this was not enough. To satisfy § 3553(c)(2), “[t]he district court’s
reasons must be sufficiently specific so that an appellate court can engage in the
meaningful review envisioned by the Sentencing Guidelines.”29 The able district
judge’s actions demonstrate his command of the guidelines and suggest that
various factors informed his choice of sentence, but they do not answer the key
question of why he imposed an above-guideline sentence. Without an answer, we
cannot discharge our duties of appellate review. The burdens facing a busy district
court are real, but the text of § 3553(c)(2) imposes a mandatory obligation. As our
sister circuits have recognized, this provision embodies a congressional judgment
28
United States v. Suarez, 939 F.2d 929, 934 (11th Cir. 1991); accord United States v.
Parrado, 911 F.2d 1567, 1573 (11th Cir. 1990).
29
Suarez, 939 F.2d at 933.
13
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that explaining a non-guideline sentence has both instrumental and intrinsic
value.30 We cannot sidestep this legislative command.
We hold that the district court failed to comply with § 3553(c)(2). This
Court has adopted a per se rule of reversal for § 3553(c)(2) errors. As we have
explained in the past, “[t]he court has an obligation . . . to explain deviations from
the guideline sentencing range, see 18 U.S.C. § 3553(c)(2), so that the reviewing
court can determine whether the departure was justified. If the court does not do
this, the case must be remanded for resentencing.”31 In accordance with this
precedent, we VACATE Parks’s sentence and REMAND for resentencing.32
VACATED AND REMANDED.
30
See In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008) (“It is important not only for
the defendant but also for ‘the public to learn why the defendant received a particular sentence.’”
(quoting United States v. Lewis, 424 F.3d 249, 247 (2d Cir. 2005))).
31
United States v. Delvecchio, 920 F.2d 810, 813 (11th Cir. 1991) (emphasis added)
(parenthetical omitted); see also United States v. Williams, 438 F.3d 1272, 1274-75 (11th Cir.
2006) (per curiam) (stating that it is the “duty of this Court” to vacate and remand when the
district court does not comply with § 3553(c)); United States v. Veteto, 920 F.2d 823, 827 (11th
Cir. 1991).
Indeed, at least two circuits have held that a district court’s failure to comply with
§ 3553(c) always constitutes plain error. See In re Sealed Case, 527 F.3d at 193; Lewis, 424
F.3d at 246.
32
In light of this disposition, we need not reach the merits of Parks’s § 3553(a) claim.
14