[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 1, 2006
No. 06-11712 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00210-CR-T-24-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK HANKERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 1, 2006)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
In August 1998, pursuant to a plea agreement, Derrick Hankerson pled
guilty to one count of conspiring to violate 21 U.S.C. § 841(a) by distributing
cocaine base or possessing cocaine base with intent to distribute, in violation of 21
U.S.C. § 846. The district court sentenced him to a prison term of 92 months,
followed by a five-year term of supervised release.
On February 2, 2006, Hankerson was arrested for violating the terms of his
supervised release, and on February 14, the district court held a final revocation
hearing. The court found that he had violated the terms of his release and
sentenced him to a prison term of 60 months. He now appeals, contending that the
district court abused its discretion in revoking his supervised release because there
was not sufficient evidence to support a finding that he had willfully attempted to
sell cocaine because: (1) the state dropped the drug charge; (2) he denied selling
cocaine, though admitting that he attempted to sell marijuana; and (3) the
confidential informant the police had used had a history of crimes of dishonesty.
We review a district court’s revocation of supervised release under an abuse
of discretion standard. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994).
Under § 3583(e), the 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 statute . . . if the court . . . finds by a preponderance of the evidence
that the defendant violated a condition of [his] supervised release.” 18 U.S.C. §
2
3583(e)(3). The preponderance standard “does not relieve the sentencing court of
the duty of exercising the critical fact-finding function that has always been
inherent in the sentencing process. . . Preponderance of the evidence is not a high
standard of proof. It is not, however, a toothless standard either.” United States v.
Askew, 193 F.3d 1181, 1183 (11th Cir. 1999).
The district court did not abuse its discretion in revoking Hankerson’s
supervised release because the testimony of the investigating detective was
sufficient to establish by a preponderance of the evidence that Hankerson had
committed a cocaine trafficking violation.
Hankerson contends that under the 18 U.S.C. § 3553(a) sentencing factors,
his sentence was unreasonable – because the court based it on a Grade A violation,
when he only committed a Grade C violation.
When imposing a sentence after revocation, the district court must consider
the § 3553 factors including:
(1) the nature and circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the need for the sentence to reflect
the seriousness of the offense, promote respect for the law, and
provide just punishment for the offense; and (4) the kinds of sentences
and sentencing range established by the Guidelines, and in the case of
a violation of supervised release, the applicable Guidelines or policy
statements issued by the Sentencing Commission.
United States v. Sweeting, 437 F.3d 1105, 1106 -07 (11th Cir. 2006). Section
3
3583(e)(3) prohibits a sentence of more than 5 years in prison, “if the offense that
resulted in the term of supervised release is a class A felony.” 18 U.S.C. §
3583(e)(3). As we cannot fault the court’s determination that Hankerson
committed a class A felony, and the court properly considered the § 3553(a)
factors, the sentence the court imposed is due to be, and is,
AFFIRMED.
4