Case: 19-10652 Date Filed: 09/26/2019 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10652
Non-Argument Calendar
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D.C. Docket No. 1:98-cr-00024-SLB-MHH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAFOREST CARMICHAEL,
a.k.a. LaForrest Carmichael
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(September 26, 2019)
Before MARCUS, JORDAN and FAY, Circuit Judges.
PER CURIAM:
Laforest Carmichael appeals his 36-month sentence, which the district court
imposed upon mandatory revocation of his supervised release. He argues that his
statutory maximum sentence was substantively unreasonable because the district
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court failed to properly weigh the 18 U.S.C. § 3553(a) factors and imposed a
sentence that was greater than necessary to serve the sentencing purposes set forth
in § 3553(a). After careful review, we affirm.
We generally review a sentence imposed upon revocation of supervised
release for reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248,
1252 (11th Cir. 2008). When we review a sentence for “reasonableness,” we
“merely ask[] whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)). The party challenging the sentence bears the burden of establishing
that it is unreasonable based on the record and the § 3553(a) factors. United States
v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).1
The district court must revoke a term of supervised release if the defendant
possessed a controlled substance or a firearm in violation of the conditions of
supervised release. 18 U.S.C. § 3583(g). Section 3583(g) does not mention
consideration of the § 3553(a) factors with respect to mandatory revocations. See
id. Thus, we’ve said that “when revocation of supervised release is mandatory under
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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 reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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18 U.S.C. § 3583(g), the statute does not require consideration of the § 3553(a)
factors.” United States v. Brown, 224 F.3d 1237, 1241 (11th Cir. 2000) (emphasis
in original), abrogated in part on other grounds by Tapia v. United States, 564 U.S.
319 (2011). Indeed, when a defendant is sentenced to a mandatory term of
imprisonment pursuant to § 3583(g), the only limitation is that the term of
imprisonment must not “exceed the maximum term of imprisonment authorized
under [§ 3583](e)(3),” which is three years’ imprisonment when the original
underlying offense was a Class B felony. 18 U.S.C. § 3583(e)(3), (g).
The traditional substantive reasonableness review, on the other hand,
“involves examining the totality of the circumstances, including an inquiry into
whether the statutory factors in § 3553(a) support the sentence in question.” United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). “[W]e will not second
guess the weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)]
factor . . . as long as the sentence ultimately imposed is reasonable in light of all the
circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir.
2010) (quotation, alteration and emphasis omitted). Although we do not
automatically presume a sentence falling within the guideline range is reasonable,
we ordinarily expect it to be reasonable. United States v. Hunt, 526 F.3d 739, 746
(11th Cir. 2008).
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Here, Carmichael has not shown that his 36-month sentence, imposed upon
mandatory revocation, is substantively unreasonable based on the district court’s
consideration of the § 3553(a) factors. For starters, because revocation of
Carmichael’s supervised release was mandatory under 18 U.S.C. § 3583(g), it is
clear under our case law that the district court was not required to consider the §
3553(a) factors. See Brown, 224 F.3d at 1241. Brown remains good law; as we’ve
held, the Supreme Court’s decision in Tapia only abrogated Brown’s proposition
that the district court may consider rehabilitation. United States v. Vandergrift, 754
F.3d 1303, 1309 (11th Cir. 2014) (recognizing that Tapia abrogates Brown’s holding
that “a court may consider a defendant’s rehabilitative needs when imposing a
specific incarcerative term following revocation of supervised release”); see United
States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (stating that a prior panel’s
holding is binding unless and until it is overruled or abrogated by the Supreme Court
or by this Court sitting en banc). Thus, the district court was not required to consider
the § 3553(a) factors at all, so Carmichael’s claim that the district court improperly
weighed those factors is irrelevant.
But even though the district court was not required to weigh the § 3553(a)
factors, it did so anyway and Carmichael has not shown that it weighed them
improperly. As the record reveals, the district court expressly said that it had
considered the § 3553(a) factors; these include Carmichael’s lengthy criminal
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history of similar offenses, the seriousness of his violation, the need to deter him,
and the need to protect the public from him committing more drug-related crimes or
possessing a firearm. See 18 U.S.C. § 3553(a). The district court also considered
the sentencing guidelines, and all of Carmichael’s arguments in mitigation, including
that he had taken substantial steps at rehabilitation and that he had overserved his
original sentence. Nevertheless, the court determined that the appropriate sentence
was the statutory maximum, and Carmichael has not shown how this sentence was
unreasonable in light of all the circumstances presented. As we’ve said, we
ordinarily expect a sentence below the statutory maximum and within the guideline
range to be reasonable. Hunt, 526 F.3d at 746; see 18 U.S.C. § 3583(g). Therefore,
even under a traditional substantive reasonableness analysis, the district court did
not abuse its discretion in imposing the 36-month sentence, and we affirm.
AFFIRMED.
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