United States v. Tommie Joe Jackson, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 22, 2005
No. 04-11555 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket Nos. 00-00173-CR-CO-S & 00-00174-CR-CO

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMMIE JOE JACKSON, JR.,
a.k.a. Jonathan Barton, etc.

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(April 22, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
Tommie Joe Jackson, Jr., appeals his 36-month sentence imposed pursuant

to revocation of his supervised release. For the first time on appeal, Jackson argues

that the district court erred by improperly sentencing him to a term of

imprisonment greater than the recommended guideline range based on factors that

already had been considered by the Sentencing Commission. The essence of his

claim is that 18 U.S.C. 3553(b)(1) prevents a district court from imposing a

sentence outside the recommended range unless the court finds an aggravating or

mitigating circumstance.

We review a district court’s decision to exceed the chapter seven guidelines’

recommended sentencing range for an abuse of discretion. See United States v.

Hofierka, 83 F.3d 357, 361–62 (11th Cir. 1996). However, where a defendant

raises a sentencing argument for the first time on appeal, we review only for plain

error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Plain

error requires (1) an error, (2) that is plain, (3) that affects the substantial rights of

the defendant, and (4) that, if left uncorrected, would “seriously affect the fairness,

integrity, or public reputation of a judicial proceeding.” United States v.

Humphrey, 164 F.3d 585, 588 & n.3 (11th Cir. 1999).

Pursuant to 18 U.S.C. § 3583, the district court may:

revoke a term of supervised release, and require the defendant to serve
in prison all or part of the term of supervised release authorized by

2
statute for the offense that resulted in such term of supervised release
without credit for time previously served on postrelease supervision, if
the court, pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised release, finds by a
preponderance of the evidence that the defendant violated a condition
of supervised release . . . .

18 U.S.C. § 3583(e)(3). If a district court revokes a term of supervised release

related to a Class B felony, the court may sentence the defendant to up to three

years’ imprisonment. Id.

The Sentencing Guidelines that apply to violations of supervised release,

which appear in chapter seven, “are merely advisory, and it is enough that there is

some indication the district court was aware of and considered them.” Aguillard,

217 F.3d at 1320. In Aguillard we approved of a district court’s sentence in excess

of the chapter seven recommended range when the court “explicitly mentioned

those guidelines and decided the sentence they recommended was inadequate

under the circumstances.” Id.

Likewise, the district court in this case indicated that it was aware of the

range and considered it. Ultimately the court rejected it because Jackson

committed new offenses similar to the original offenses soon after he began his

term of supervised release. Because the court considered the chapter seven

guidelines and explained its reasoning for sentencing beyond that range, the district

court did not plainly err.

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Moreover, the provision that Jackson cites undermines his claim. Whereas

Jackson argues that a court must find an aggravating or mitigating circumstance to

impose a sentence outside the range of any sentence, our precedent clearly holds to

the contrary with respect to revocations of supervised release. See Aguillard, 217

F.3d at 1320. Furthermore, § 3553(b)(1) expressly cross-references 18 U.S.C. §

3553(a)(4), which requires a district court to consider the (advisory) chapter seven

sentencing guidelines for revocation of supervised release. The district court in

this case has followed Congress’s mandate.

Upon review of the record and consideration of the briefs, we find no

reversible error. Accordingly, we affirm Jackson’s sentence.

AFFIRMED.