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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13918
Non-Argument Calendar
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D.C. Docket No. 3:97-cr-00006-RV-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHERWIN D. KNIGHT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 13, 2016)
Before JORDAN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Sherwin Knight appeals his 21-month sentence for revocation of supervised
release. On appeal, he argues that his sentence was procedurally unreasonable
because the district court considered marijuana possession allegations not proven
by a preponderance of the evidence and because he did not receive adequate notice
in the petition for revocation of his fleeing or eluding charge. He also argues that
his sentence is substantively unreasonable.
I.
We review factual findings made at supervised release hearings for clear
error. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). Pursuant to 18
U.S.C. § 3583(e), upon finding that the defendant violated a condition of
supervised release, a district court may revoke the term of supervised release and
impose a term of imprisonment after considering specific factors set forth in 18
U.S.C. § 3553(a). 18 U.S.C. § 3583(e)(3).
The government is not required to prove beyond a reasonable doubt that the
defendant committed the alleged crime. See United States v. Sweeting, 437 F.3d
1105, 1107 (11th Cir. 2006). The standard of proof at a revocation of supervised
release hearing is a preponderance of the evidence. Id. The Sentencing
Commission intended to avoid a situation where “[t]he potential unavailability of
information and witnesses necessary for a determination of specific offense
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characteristics or other guideline adjustments could create questions about the
accuracy of factual findings concerning the existence of those factors.” U.S.S.G.
Ch. 7, Pt. A, intro. comment. 3(b). Therefore, “the grade of the violation does not
depend upon the conduct that is the subject of criminal charges . . . . Rather, the
grade of the violation is to be based on the defendant’s actual conduct.” U.S.S.G.
§ 7B1.1, comment. (n.1).
The court’s finding was not clearly erroneous. The testimony presented by
Kelly indicated that significant amounts of marijuana were in the vehicle and the
bag containing the drugs smelled strongly. Further, Knight appeared nervous and
fled. This evidence, under a preponderance of the evidence standard, was
sufficient for the district court to conclude that Knight had knowledge of the
marijuana.
Moreover, although Knight repeatedly requested that the court only consider
the fleeing or eluding and resisting arrest violations, the court was not required to
do this. The determination of the appropriate sentence is not based on the specific
charges, but rather, the totality of the defendant’s conduct. See U.S.S.G. § 7B1.1,
comment. (n.1). Thus, the district court was free to consider the marijuana
allegations. Therefore, the district court’s sentence was procedurally reasonable in
this respect, and we affirm.
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II.
We review objections to the procedural unreasonableness of a sentence for
plain error when not objected to at sentencing. See United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014). We do not, however, review invited error.
United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). Invited error exists
when a party’s statements or actions induce the district court into making an error.
Id. We have applied the doctrine of invited error where a party affirmatively
requested or specifically agreed with the challenged action of the district court.
See, e.g., United States v. Jernigan, 341 F.3d 1273, 1289-90 (11th Cir. 2003)
(concluding that the defendant invited error by affirmatively stipulating to
admission of the evidence challenged on appeal). Merely failing to object to the
district court’s action is not sufficient to trigger the invited error doctrine. United
States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012).
Knight invited any error by admitting to fleeing or eluding, specifically
asking the court to sentence him on the violation, and not objecting to inadequate
notice. Because Knight requested the court take an action that he now claims was
error, we will not hear the issue on appeal.
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III.
We review a district court’s sentence for reasonableness under an abuse of
discretion standard. United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir.
2008) (applying the same reasonableness standard to a revocation hearing).
Substantive reasonableness also involves examining whether a sentence meets the
goals of § 3553(a). United States v. Saac, 632 F.3d 1203, 1214 (11th Cir. 2011).
The party who challenges the sentence bears the burden of showing that the
sentence is unreasonable in light of the record and the § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). However, while we do not
presume that a sentence falling within the guideline range is reasonable, we
ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2009).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in § 3553(a), including the need to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. 18 U.S.C. § 3583(e); see also 18 U.S.C.
§ 3553(a)(2). In imposing a sentence, the court must also consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guideline range, the pertinent policy
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statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(1), (3)-(7).
Knight does not demonstrate that his sentence was substantively
unreasonable in light of the record and the § 3553(a) factors. The court expressed
concern regarding Knight’s criminal history and the circumstances of his arrest.
Knight’s original sentence was for a significant controlled substance offense, and
the violation that supported the revocation of his release involved marijuana.
Considering Knight’s criminal history, the district court did not abuse its discretion
by sentencing him within the applicable guideline range. See 18 U.S.C.
§ 3553(a)(2). Moreover, the district court’s sentence of 21 months represents the
low end of the applicable guideline range of 21 to 27 months, and we would
ordinarily expect such a sentence to be reasonable. See Hunt, 526 F.3d at 746.
Thus, the sentence was substantively reasonable, and we affirm.
AFFIRMED.
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