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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13204
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00136-WS-MU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELLY GENE COLLINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(March 30, 2018)
Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Defendant Kelly Gene Collins appeals his 57-month sentence imposed
following the revocation of his probation. On appeal, Defendant argues that the
district court imposed an unlawful sentence that exceeded the statutory limits
permitted for a sentence imposed upon revocation of supervised release. He also
challenges the reasonableness of his sentence. After careful review, we affirm.
I. BACKGROUND
In 2012, Defendant pled guilty to possession of a firearm by a prohibited
person, in violation of 18 U.S.C. § 922(g)(9). As part of the plea agreement,
Defendant admitted that he possessed a 9mm machinegun pistol that did not have a
serial number, after having been convicted of assault and battery of a family
member in 2003. At the sentencing hearing in 2013, the district court calculated
the guideline range as 57 to 71 months’ imprisonment based on a total offense
level of 23 and a criminal history category of III. Defendant informed the court
that he had served in the Marine Corps for 10 years, had received two purple
hearts, a bronze star, and a silver star, and had been the sole survivor of a
helicopter crash in Iraq. Noting that the guidelines called for a significant amount
of incarceration, the district court placed significant weight on Defendant’s
military service and varied downward to five years of probation with six months of
home confinement.
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Approximately two years later and before the expiration of his term of
probation, the district court issued a warrant for Defendant’s arrest based on an
alleged violation of the conditions of his probation. Specifically, Defendant had
been arrested and charged with battery (domestic violence). Defendant later
admitted that he had violated the conditions of his probation and waived his right
to a revocation hearing on the violation.
At the revocation hearing, the district court accepted Defendant’s admission
that he had violated the terms of his probation. The Government asked the court to
resentence Defendant under 18 U.S.C. § 3565, which permits a court, after
considering the 18 U.S.C. § 3553(a) factors, to revoke probation and resentence a
defendant who has violated a condition of probation. The Government
recommended a sentence of 57 months’ imprisonment, which was the low end of
the original guideline range, given that Defendant had provided untruthful
information concerning his education and military service at the original
sentencing hearing. The court noted that Defendant had received a sentence to
which he was not entitled because of his untrue statements, and that, if it had
known the truth, it would not have sentenced Defendant to probation.
Accordingly, the district court sentenced Defendant to 57 months’ imprisonment,
followed by 12 months of supervised release.
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Defendant did not file an appeal. In 2017, he filed a motion to vacate his
sentence under 28 U.S.C. § 2255, arguing in relevant part that his attorney was
ineffective for failing to file a direct appeal. A magistrate judge entered a Report
and Recommendation (“R&R”), recommending that Defendant’s § 2255 motion be
granted to permit him to file an out-of-time appeal. The district court adopted the
R&R, granted the § 2255 motion, vacated the judgment entered in Defendant’s
case, and sentenced Defendant to 57 months’ imprisonment. This appeal followed.
II. DISCUSSION
A. Legality of Sentence Imposed Upon Probation Revocation
Defendant first argues that the district court’s imposition of a 57-month
sentence was illegal because it exceeded the statutory maximum sentence
permitted for a sentence imposed upon the revocation of supervised release.
Because Defendant did not raise this argument before the district court, our
review is limited to plain error.1 United States v. Mangaroo, 504 F.3d 1350, 1353
(11th Cir. 2007). Defendant essentially argues that his revocation sentence was
illegal because it exceeded the statutory maximum term permissible for a sentence
imposed upon revocation of supervised release under 18 U.S.C. § 3583(e)(3).
Section 3583 provides that when a court revokes supervised release, a defendant
1
“The plain-error test has four prongs: there must be (1) an error (2) that is plain and (3) that
has affected the defendant’s substantial rights; and if the first three prongs are met, then a court
may exercise its discretion to correct the error if (4) the error ‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.’” United States v. Madden, 733 F.3d 1314,
1320 (11th Cir. 2013).
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may not be required to serve more than two years in prison if the offense that
resulted in supervised release is a Class C felony. 18 U.S.C. § 3583(e)(3). A
violation of 18 U.S.C. § 922(g) is a Class C felony. See 18 U.S.C. § 924(a)(2)
(explaining that a violation of § 922(g) carries a statutory maximum of 10 years’
imprisonment); 18 U.S.C. § 3559(a)(3) (providing that a Class C felony carries an
imprisonment term between 10 and 25 years).
Defendant, however, cannot show error, let alone plain error because his
proceedings did not involve the revocation of supervised release. Instead, his
probation was revoked pursuant to 18 U.S.C. § 3565. That statutory provision
provides that, if a defendant violates a condition of probation before expiration of
the term of probation, the district court may, after considering the 18 U.S.C.
§ 3553(a) factors:
(1) continue him on probation, with or without extending the
term or modifying or enlarging the conditions; or
(2) revoke the sentence of probation and resentence the
defendant under subchapter A.
18 U.S.C. § 3565(a).
Defendant asserts that the district court referred to the proceedings as
supervised release revocation proceedings on more than one occasion.
Specifically, the docket entries for the initial appearance, the order scheduling the
final revocation hearing, and the final judgment refer to “Revocation of Supervised
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Release.” Because the court characterized the proceedings as supervised release
revocation proceedings, Defendant contends that the court was barred from
imposing a sentence greater than two years’ imprisonment pursuant to § 3583(e).
Defendant is simply wrong.
The record is clear that the proceedings before the district court concerned
probation revocation proceedings. Indeed, Defendant was sentenced to five years
of probation on the underlying § 922(g) offense. The arrest warrant issued for
Defendant alleged that he had violated a condition of probation. Further, at the
revocation hearing, the district court found that Defendant had “violated the terms
and conditions of probation.” Because the proceedings involved probation
revocation, the district court was permitted under § 3565 “to revoke the sentence of
probation and resentence” Defendant to 57 months’ imprisonment. See 18 U.S.C.
3565(a)(2). Accordingly, Defendant has failed to establish that the district court
committed error, much less plain error by imposing an illegal sentence.
B. Reasonableness of Sentence
Defendant argues that his 57-month sentence is unreasonable because the
district court failed to consider the § 3553(a) factors. He also contends that the
record is not sufficient for appellate review.
Using a two-step process, we review the reasonableness of a sentence
imposed by the district court for an abuse of discretion. United States v. Cubero,
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754 F.3d 888, 892 (11th Cir. 2014). We first look to whether the district court
committed any significant procedural error, such as miscalculating the advisory
guideline range, treating the Sentencing Guidelines as mandatory, failing to
consider the 18 U.S.C. § 3553(a) factors, 2 selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence. Id. Then we
examine whether the sentence is substantively reasonable in light of the totality of
the circumstances. Id. The party challenging the sentence bears the burden of
showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th
Cir. 2008).
Defendant did not object to his sentence before the district court, so our
review is limited to plain error. See United States v. Vandergrift, 754 F.3d 1303,
1307 (11th Cir. 2014) (explaining that plain-error review applies to procedural
reasonableness arguments raised for the first time on appeal). Defendant, however,
has not shown error, plain or otherwise.
First, the record refutes Defendant’s argument that the district court failed to
consider the § 3553(a) factors. In sentencing Defendant, the district court listened
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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 to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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to the parties’ arguments and stated that it needed to impose a sentence that would
satisfy the sentencing objectives set forth under § 3553(a). United States v.
Dorman, 488 F.3d 936, 938 (11th Cir. 2007) (“The district court need not state on
the record that it has explicitly considered each factor and need not discuss each
factor. Rather, an acknowledgment by the district court that it has considered the
defendant’s arguments and the § 3553(a) factors will suffice.” (citation omitted)).
The district court also discussed Defendant’s dishonest statements during the
original sentencing hearing, Defendant’s prior criminal convictions, and
Defendant’s history of violence, all of which bore on his history and
characteristics. The fact that the court emphasized one particular factor does not
mean that it failed to consider all of the factors. See United States v. Williams, 526
F.3d 1312, 1324 (11th Cir. 2008) (“[T]he fact that the district court emphasized
one § 3553(a) factor, the seriousness of the offense, does not mean that [the
defendant’s] sentence was unreasonable.”).
We are also not persuaded by Defendant’s argument that the record is not
sufficiently developed for us to review the reasonableness of his sentence. The
district court explained that it would apply the guideline range that was applicable
at the original sentencing: 57 to 71 months’ imprisonment. See United States v.
Cook, 291 F.3d 1297, 1300 (11th Cir. 2002) (explaining that “a district court may
sentence a probation violator within the range that was available at the time of the
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initial sentencing” (emphasis in original)). In fact, the district court also
considered whether, given Defendant’s obstruction of justice, it was appropriate to
deny him the three-level reduction for acceptance of responsibility that he had
received at the original sentencing hearing, which would have resulted in a higher
guideline range. Nonetheless, the district court followed the Government’s
recommendation and imposed a 57-month sentence. We conclude that the court
“set forth enough to satisfy [us] that [it] ha[d] considered the parties’ arguments
and ha[d] a reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
Accordingly, Defendant’s sentence is AFFIRMED.3
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We also reject Defendant’s argument that the district court failed to elicit objections to the
sentence, in violation of United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on
other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993). After imposing
sentence, although the court stated, “Anything further . . .?,” it immediately said, “Any
objections or other matters we need to put on the record.” See United States v. Maurice, 69 F.3d
1553, 1557 (11th Cir. 1995) (explaining that a district court complies with Jones by specifically
asking for objections following sentencing).
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