United States v. DeWayne Bradley

Case: 17-11169 Date Filed: 10/27/2017 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-11169
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-00254-CG-N-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEWAYNE BRADLEY,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Alabama
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(October 27, 2017)

Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

Dewayne Bradley appeals his 24-month sentence imposed following the

revocation of his supervised release on his 2008 conviction and sentence for

attempted possession with intent to distribute cocaine. From November 2015 to
Case: 17-11169 Date Filed: 10/27/2017 Page: 2 of 6

July 2016, after he was discharged from his custodial sentence on the 2008

conviction but while he was still subject to the conditions of his supervised release,

Bradley participated in a new cocaine trafficking operation. In connection with

this new cocaine trafficking operation, Bradley was indicted and ultimately pled

guilty to a single count of conspiracy to possess with intent to distribute cocaine.

This guilty plea in turn formed the basis for the revocation of Bradley’s supervised

release on his 2008 conviction.

On appeal, Bradley argues that his 24-month revocation sentence is

procedurally and substantively unreasonable because the district court failed to

ensure that his advisory guidelines range was properly calculated and improperly

varied upward from the applicable guidelines range without adequately explaining

its reasons for doing so.

I. REASONABLENESS

We review a sentence imposed upon revocation of supervised release for

reasonableness. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.

2014). Ordinarily, we begin by ensuring that the district court did not commit any

significant procedural error, such as failing to calculate or improperly calculating

the guidelines range or failing to consider the sentencing factors set forth in 18

U.S.C. § 3553(a). Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007). If the district court’s sentencing decision is procedurally sound, we then

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review the substantive reasonableness of the sentence under an abuse-of-discretion

standard. Id. “A district court abuses its discretion when it (1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors.” United States v. Irey, 612 F.3d

1160, 1189 (11th Cir. 2010) (en banc) (quoting United States v. Campa, 459 F.3d

121, 1174 (11th Cir. 2006) (en banc)).

The weight accorded to any one § 3553(a) factor is a matter committed to

the sound discretion of the district court, and the court is free to attach “great

weight” to one factor over the others. United States v. Rosales-Bruno, 789 F.3d

1249, 1254 (11th Cir. 2015); see also United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007). We will overturn a sentence for substantive unreasonableness

only if 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.” Irey, 612

F.3d at 1190.

II. REVOCATION OF SUPERVISED RELEASE

If the district court finds by a preponderance of the evidence that the

defendant violated a condition of supervised release, the district court has

discretion to revoke his supervised release and require him to serve all or part of

the supervised release term in prison. 18 U.S.C. § 3583(e)(3). In determining

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whether to revoke supervised release and impose a prison sentence, the district

court must consider certain factors set forth in § 3553(a), including, inter alia, the

nature and circumstances of the offense, the history and characteristics of the

defendant, the applicable guidelines range, and the need to deter criminal conduct.

18 U.S.C. §§ 3553(a)(1), (2)(B), (4), 3583(e).

The Sentencing Guidelines establish three “grades” of supervised release

violations. U.S.S.G. § 7B1.1(a). A “Grade A” violation is the commission of a

felony that that involves, inter alia, a controlled-substance offense as defined in

U.S.S.G. § 4B1.2(b), which includes conspiracy to possess with intent to distribute

a controlled substance. U.S.S.G. § 7B1.1(a)(1) & cmt. n.3; United States v.

Pridgeon, 853 F.3d 1192, 1199-1200 (11th Cir. 2017), cert. denied, __ S. Ct. __,

No. 17-5135 (U.S. Oct. 2, 2017). Where a defendant (1) had a criminal history

category of I at the time the term of supervised release was originally imposed and

(2) commits a Grade A violation, the applicable guidelines range is 12 to 18

months. U.S.S.G. § 7B1.4(a).

III. DISCUSSION

The district court’s imposition of a 24-month sentence, which constituted an

upward variance from Bradley’s guidelines range, was both procedurally and

substantively reasonable. First, the district court did not err in calculating

Bradley’s guidelines range at 12 to 18 months. Bradley had a criminal history

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category of I at the time the term of supervised release was imposed, and his new

conviction for conspiracy to possess with intent to distribute cocaine constituted a

Grade A violation. See U.S.S.G. §§ 4B1.2(b), 7B1.1(a)(1)(A)(ii); Pridgeon, 853

F.3d at 1199-1200. Accordingly, Bradley’s guidelines range was 12 to 18 months.

U.S.S.G. § 7B1.4(a).

Second, Bradley’s assertion that the district court failed to adequately

consider the § 3553(a) factors in imposing his revocation sentence is belied by the

record. In imposing Bradley’s revocation sentence, the district court noted that

Bradley was “fortunate because the government elected not to file an

enhancement” on his new cocaine conviction, which would have subjected him to

a mandatory minimum sentence. The district court further noted that, as soon as

Bradley “got in a tough situation” after his release from custody on his 2008

conviction, he “went straight back” to committing drug offenses. Accordingly, the

district court determined that the Chapter 7 guidelines range of 12-18 months was

not appropriate and, “given the circumstances” of Bradley’s case, a 24-month

revocation sentence was warranted.

The record therefore shows that the district court considered Bradley’s

history, the nature and circumstances of the offense, the need for deterrence, and

the applicable guidelines range in determining Bradley’s revocation sentence. See

18 U.S.C. §§ 3553(a)(1), (2)(B), (4), 3583(e)(3). Nothing in the record leads us to

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conclude that the district court committed “a clear error of judgment” in weighing

those factors. Clay, 483 F.3d at 743; Irey, 612 F.3d at 1190.

Finally, we recognize that Bradley characterizes his above-guidelines

revocation sentence as an upward “departure” and suggests that the district court

departed under U.S.S.G. § 4A1.3. The record makes clear, however, that his

above-guidelines sentence was in fact an upward variance based on the district

court’s consideration of the § 3553(a) factors, as the district court never referred to

§ 4A1.3 or any other departure provision in imposing his revocation sentence, but

rather focused on Bradley’s history and characteristics and the circumstances of his

offense. 18 U.S.C. § 3553(a); see also Irizarry v. United States, 553 U.S. 708, 714-

15, 128 S. Ct. 2198, 2202-03 (2008) (explaining that “departure” is a term of art

under the Guidelines that is distinct from non-guidelines sentences based on the

§ 3553(a) factors).

Accordingly, we affirm.

AFFIRMED.