[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11199 JAN 21, 2010
Non-Argument Calendar JOHN LEY
________________________ ACTING CLERK
D. C. Docket No. 02-00754-CR-RWS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE WELMAKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 21, 2010)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Andre Welmaker appeals the consecutive 18-month prison sentence that was
imposed by the district court upon the revocation of his term of supervised release.
Welmaker contends that this sentence, which runs consecutively to the sentences
for the offenses which gave rise to the revocation, is unreasonable. After careful
review, we affirm.
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008). In reviewing sentences for reasonableness, we perform two steps.
United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we must
“‘ensure that the district court committed no 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 -- including an explanation for any deviation from the Guidelines
range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1 If we
conclude that the district court did not procedurally err, we must consider the
“‘substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard,’” based on the “‘totality of the circumstances.’” Pugh, 515 F.3d at 1190
(quoting Gall, 552 U.S. at 51). “[T]he party who challenges the sentence bears the
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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 to afford adequate
deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to
provide the defendant with training, medial care, or correctional treatment; (3) the Sentencing
Guidelines’ range; (4) pertinent Sentencing Commission policy statements; (5) the need to avoid
unwarranted sentencing disparities among similarly situated defendants with similar records; and
(6) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7).
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burden of establishing that the sentence is unreasonable in the light of both the
record and the factors in section 3553(a).” United States v. Thomas, 446 F.3d
1348, 1351 (11th Cir. 2006) (quotation and brackets omitted).
After considering the factors of § 3553(a), a district court may revoke a term
of supervised release and impose a term of imprisonment if it determines by a
preponderance of the evidence that a violation has occurred. 18 U.S.C. §
3583(e)(3). The introduction to Chapter Seven of the Sentencing Guidelines,
which sets forth the policy statements for violations of supervised release, provides
that “at revocation the court should sanction primarily the defendant’s breach of
trust . . . . [and] the sanction for the violation of trust should be in addition, or
consecutive, to any sentence imposed for the new conduct.” U.S.S.G., ch. 7, pt. A,
cmt. 3(b). Section 7B1.3(f) of the Guidelines reiterates the Commission’s policy
that prison terms for release violations should be consecutive sentences.
District courts are given statutory authority under 18 U.S.C. § 3584 to
impose consecutive or concurrent sentences but must consider the factors of §
3553(a) in making that determination. This statute governs sentences for the
violation of supervised release, thereby placing the decision to impose a
consecutive revocation sentence within a district court’s discretion. United States
v. Dees, 467 F.3d 847, 852 (11th Cir. 2006). Further, “[t]he weight to be accorded
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any given § 3553(a) factor is a matter committed to the sound discretion of the
district court . . . .” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)
(quotation omitted).
Welmaker has failed to show that his consecutive sentence was procedurally
unreasonable. The parties do not dispute that the court correctly calculated the
guideline range at 18-24 months. Even though the district court did not explicitly
say that it was considering the § 3553(a) factors, the record supports that the court
weighed and considered the factors as will be further discussed below. See United
States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007) (holding that a district
court’s failure to articulate explicitly that it has considered the § 3553(a) factors
does not render a sentence procedurally unreasonable if the record indicates that
the court did, in fact, consider the sentencing factors). The court’s emphasis on
Welmaker’s repetition of the identical crime during supervised release provided an
adequate explanation for the consecutive nature of the sentence. Finally, the court
was required to consider the policy statements of the Guidelines as part of its
procedural requirement to consider § 3553(a) and there is no indication in the
record that the Commission’s policy was “mechanically applied” in the court’s
sentencing decision.
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Welmaker also has failed to show that his sentence is substantively
unreasonable. For starters, the sentence is not greater than necessary to achieve the
purposes of sentencing. Indeed, Welmaker’s argument that the sentencing factors
were already sufficiently addressed by his 87-month sentences fails to
acknowledge a goal of revocation sentences. The Guideline policy statements,
which the district court must consider, adopt the view that the sentence for a
supervised release violation should reflect the breach of trust inherent in the
violation. This breach of trust is an independent, viable sentencing interest in any
revocation case which can be addressed by a statutorily allowed consecutive
sentence if the district court deems it appropriate. See Dees, 467 F.3d at 852.
In the instant case, the court’s stated concern that Welmaker had committed
the identical crime of unarmed bank robbery while under supervised release is
sufficient to support a consecutive prison sentence for the breach of trust reflected
in the violation. The court’s recommendation for intensive drug treatment was not
intended to address the breach of trust. In addition, the court’s decision to impose
a prison term at the low end of the guideline range also supports the conclusion
that this sentence was not greater than necessary to comply with the purposes of
sentencing.
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Moreover, the record shows that the court heard the government’s argument
for a consecutive sentence based on §3553(a) and rejected Welmaker’s request for
a concurrent sentence. The court’s insistence on a consecutive sentence reflected
its consideration of the nature, circumstances, and seriousness of Welmaker’s
supervised release violation and the need to protect the public from repeated
offenses. The court also gave due consideration to Welmaker’s personal history
and characteristics by recommending drug treament and by deciding to sentence at
the low end of the guideline range based on the arguments Welmaker raised.
Because Welmaker has not met his burden to show that the consecutive sentence
was unreasonable, we affirm.
AFFIRMED.
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