United States v. Marcus Smith

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 4, 2006
No. 05-16408 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 96-00382-CR-1-JEC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCUS SMITH,

Defendant-Appellant.

________________________

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

(May 4, 2006)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Marcus Smith appeals the district court’s imposition of a twelve-month
sentence after the revocation of Smith’s supervised release. We AFFIRM.

I. BACKGROUND

Smith pled guilty in 1997 to knowingly using and carrying a firearm in

conjunction with a crime of violence, carjacking, in violation of 18 U.S.C. §

924(c). The district court sentenced Smith to sixty months of imprisonment, three

years of supervised release, and ordered Smith to pay $1,000 restitution. In

October 2002, Smith’s probation officer filed a petition for warrant and order to

show cause why supervised release should not be revoked. The petition alleged

that Smith (1) tested positive for cocaine use nine times, (2) tested positive for

marijuana use ten times, (3) failed to participate in a drug/alcohol abuse program,

(4) failed to pay a court-ordered restitution and fine, and (5) failed to notify his

probation officer of his change of residence within seventy-two hours of the

change. R1-45 at unnumbered 3-5.

After a revocation hearing in November 2002, at which Smith admitted all

the alleged violations, the district court revoked Smith’s supervised release and

sentenced him to nine months of imprisonment, to be followed by twenty-four

months of supervised release. The special conditions of Smith’s supervised

release included the duty to (1) make payments toward his restitution and fine, and

(2) participate in a drug/alcohol treatment program. R1-51 at 1-2. In February

2
2004, Smith’s probation officer filed a petition and order to modify the conditions

of his supervised release. Because of Smith’s positive drug tests and failure to

appear for drug treatment, the probation officer requested that the court modify

Smith’s conditions of supervised release to include the requirement that Smith be

placed at Dismas Charities facility for four months and be required to follow all the

regulations of the facility. The district court granted the modification petition.

In December 2004, Smith’s probation officer filed a petition for warrant and

order to show cause why supervised release should not be revoked. The probation

officer alleged that Smith had failed to (1) comply with the Dismas Charities

facility rules, (2) report to three meetings with his probation officer, (3) attend

group and “NA” drug treatment meetings, and (4) submit monthly supervision

reports on three occasions. R2-59 at unnumbered 2. The district judge signed the

probation officer’s petition for warrant and order to show cause on 1 December

2004, but Smith was not arrested until 4 October 2005. R2-59, 65. Following his

arrest, the probation officer filed an amended petition for warrant and order to

show cause why supervised release should not be revoked. In the amended

petition, the probation officer alleged that Smith had failed to (1) comply with the

Dismas Charities facility rules and, thus, had been terminated from the facility, (2)

report to the probation office on three separate occasions, (3) attend group and

3
“NA” drug/alcohol meetings, (4) submit monthly supervision reports from May

2004 through December 2004, (5) notify the probation officer of his address,

because Smith’s whereabouts had been unknown since 3 November 2004, and (6)

pay his restitution and fine. R2-66 at unnumbered 2-3.

The district judge held a supervised release revocation hearing on 7

November 2005. Smith first admitted all the probation officer’s allegations in the

amended petition for warrant and order to show cause, except for the allegation

that Smith had failed to notify the probation officer of his change of address. R5 at

4. The government then informed the court that, under Chapter 7 of the United

States Sentencing Guidelines, Smith’s guideline range was five to eleven months

of imprisonment based on Grade C violations and Smith’s criminal history.1 Id. at

6. The government also noted that the applicable statutory maximum was fifteen

months of imprisonment.2 Id. The government then recommended that the court

1
Pursuant to U.S.S.G. § 7B1.1(a)(3)(B), “a violation of any other condition of
supervision” constitutes a Grade C violation. Smith admitted violating the terms of his
supervised release, and, thus, his violations constitute Grade C violations of his supervision. R5
at 4. As calculated in Smith’s presentence investigation report prepared for his sentencing for
his underlying offense, Smith’s criminal history category was III. See also U.S.S.G. § 7B1.4(a)
(indicating that the applicable criminal history category used in calculating a defendant’s
guideline range after revocation of supervised release “is the category applicable at the time the
defendant originally was sentenced to a term of supervision”). With Grade C violations, and a
criminal history category of III, Smith’s resulting Sentencing Guidelines range was 5 to 11
months of imprisonment. U.S.S.G. § 7B1.4(a).
2
Under 18 U.S.C. § 924(c)(1)(A)(i), the minimum term of imprisonment for using a
firearm during a crime of violence, the offense for which Smith was originally convicted, is five
years. This minimum term results in Smith’s offense being a class D felony classification,

4
sentence Smith to twelve months of imprisonment with no further supervised

release. Smith requested that the court not revoke his supervised release but

continue him on supervision with additional conditions.

In determining Smith’s sentence, the district judge considered Smith’s

history and found that (1) Smith’s underlying offense “was really serious,” (2) his

supervised release had been revoked in 2002, (3) within two weeks of his release

from custody on his original revocation, Smith’s probation officer submitted a

violation report, (4) the probation officer again submitted a violation report a

month later, (5) the probation officer submitted a third violation report

recommending that Smith go to Dismas Charities, (6) Smith continually tested

positive for drugs during his supervision, and (7) Smith was terminated from

Dismas Charities. Id. at 19-20. The judge also stated that,

I know that perhaps you have your side of the story, but looking over
all of this, this is pretty bad, and I would [be] remiss in my duties if I
allowed this to continue on. As [the government] said, this will be
your [sixth] violation report.

pursuant to 18 U.S.C. § 3559(a)(4). Where a defendant’s underlying offense is a class D felony,
the defendant may not serve more than two years of imprisonment based on revocation of his
supervised release. 18 U.S.C. § 3583(e)(3). Therefore, because Smith had been sentenced to 9
months of imprisonment for his first revocation of his supervised release, his remaining
maximum imprisonment term was 15 months on re-revocation. See R5 at 6; see also United
States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005) (per curiam) (recognizing that statutory
maximums of § 3583(e)(3) apply in the aggregate and that, where a defendant had previously
been sentenced to one-year and one-day imprisonment upon revocation of his supervised release,
the district court could sentence the defendant to only 364 days of imprisonment upon re-
revocation of his supervised release).

5
 I don’t think there’s any other point in us paying
for more drug treatment . . . . All I can do is remove you
right now, hope to protect society for the period of time
that you are on release, and hope this last stint . . . will
create an attitude adjustment, but that’s totally up to you,
but I do think the sentence recommended by the
government is appropriate.

Id. at 22. The judge then sentenced Smith to twelve months of imprisonment,

“[o]ne month higher than the range I think based on the repetitiveness of the

conduct that’s appropriate.” Id. Smith’s counsel then made the following request:

Smith’s counsel: Judge, we would request 12 months and a day.
Court: The government’s saying no.
Government: Your Honor, obviously he can request it, but he will do
12 months if you impose a 12 month sentence, and if you impose 12
months and a day, he’ll do 10 months which is one month longer than
his last revocation sentence which seems inappropriate to me.
Court: I think 12 months without a day. I think he needs to do a real
12 months and get an attitude adjustment.

Id. at 22-23.

For the first time on appeal, Smith argues that the district judge failed to

provide him due process of law because she sentenced him above the applicable

guideline range without first considering the United States Sentencing Guidelines

Chapter 7 policy statements. Smith contends that the district judge was statutorily

required to “articulate some valid reason” for departing from the Sentencing

Guidelines range, but that the judge failed to state such a reason, and, thus, the

judge “did not comport with minimal due process.” Appellant's Br. at 11, 12.

6
Smith also maintains that the district judge erred in failing to consider the factors

set forth in 18 U.S.C. § 3553(a).

II. DISCUSSION

Smith did not raise his arguments in the district court, and, thus, we review

revocation sentencing arguments that are raised for the first time on appeal for

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

curiam). Under plain error review, there must be (1) an error, (2) that is plain, and

(3) affects substantial rights. Id. When these three factors are met, we may then

exercise our discretion and correct the error if it “seriously affect[s] the fairness,

integrity or public reputation of the judicial proceedings.” United States v. Olano,

507 U.S. 725, 732, 113 S.Ct. 1770, 1776 (1993) (citations and internal quotation

marks omitted) (alteration in original) .

Upon finding that a defendant violated a condition of his supervised release

and after considering the factors set forth in 18 U.S.C. § 3553(a), a district court

may revoke the defendant’s supervised release and “require the defendant to serve

in prison all or part of the term of supervised release.” 18 U.S.C. § 3583(e)(3).3

Where the defendant’s underlying offense was a Class D felony, as in Smith’s

case, the defendant may not be required to serve any more than two years of

3
On appeal, Smith does not challenge the district judge’s revocation of his supervised
release.

7
imprisonment. Id. The § 3553(a) factors that the court must consider in imposing

a sentence upon revocation of supervised release include: (1) “the nature and

circumstances of the offense and the history and characteristics of the defendant;”

(2) the need for the sentence to deter criminal conduct, protect the public, and

provide the defendant with needed treatment or training; (3) the applicable

Sentencing Guidelines or policy statements; and (4) the need to provide restitution.

18 U.S.C. § 3553(a); see also 18 U.S.C. § 3583(e)(3). In explaining the

requirement that a district court consider the § 3553(a) factors, we have recognized

that, “nothing in [United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005)] or

elsewhere requires the district court to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Section 7B1.4 of the Chapter 7 policy statements of the Sentencing

Guidelines provides the range of imprisonment applicable upon revocation of

probation or supervised release. U.S.S.G. § 7B1.4(a). The applicable range in

Smith’s case, where he committed a Grade C violation of his supervised release

and had an original criminal history category of III, was five to eleven months of

imprisonment. See U.S.S.G. §§ 7B1.1(a)(3)(B), 7B1.4(a). Chapter 7 of the

Sentencing Guidelines is advisory, and it is sufficient that there be “some

8
indication the district court was aware of and considered them.” Aguillard, 217

F.3d at 1320.

As an initial matter, the government contends that Smith waived his right to

appeal his sentence because, by requesting that the court sentence him to twelve

months and one day of imprisonment, Smith “invited the very error about which he

complains on appeal.” Appellee's Br. at 14. “The doctrine of invited error is

implicated when a party induces or invites the district court into making an error.

Where invited error exists, it precludes a court from invoking the plain error rule

and reversing.” United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.), cert.

denied, __ U.S. __, 126 S.Ct. 772 (2005) (citations and internal quotation marks

omitted). Smith did not invite any error by the district court because Smith

originally requested that the judge not revoke his supervised release in the first

instance, and, only after the judge announced his twelve-month sentence, did Smith

request twelve months and one day of imprisonment. Moreover, Smith requested

the longer sentence because he sought the apparent benefit of only serving ten

months of imprisonment as compared to the twelve months that the district judge

intended to impose. Consequently, Smith did not induce or invite the judge to

sentence him to twelve months of imprisonment, which is the very error about

which he now complains. Accordingly, Smith did not waive his right to appeal

9
his sentence.

As to the merits of his appeal, Smith has failed to establish that the district

judge plainly erred in imposing his sentence. First, the record does not support

Smith’s argument, that the district judge failed to consider the Chapter 7

guidelines, because it is evident that the district judge gave some indication that

she was aware of and considered Chapter 7. When the judge imposed Smith’s

sentence, she stated, “[o]ne month higher than the [Chapter 7 guideline] range I

think based on the repetitiveness of the conduct that’s appropriate.” R5 at 22.

Therefore, the record clearly indicates that the district judge “was aware of and

considered” the advisory Chapter 7 guidelines. See Aguillard, 217 F.3d at 1320.

Secondly, Smith contends that the district judge failed to consider the factors

set forth in § 3553(a) in imposing his sentence. Based on the record, however, this

argument similarly fails. Before deciding on the twelve-month sentence, the

district judge extensively reviewed Smith’s history and his conduct while on

supervised release. R5 at 19-20. The judge also noted the seriousness of Smith’s

underlying offense and that the sentence of twelve months of imprisonment was

appropriate in light of the repetitiveness of Smith’s conduct. The judge further

stated: “All I can do is remove you right now, hope to protect society for the period

of time that you are on release.” Id. at 22. Given the district judge’s consideration

10
of the nature and circumstances of Smith’s offense, Smith’s history and conduct

while on supervised release, and the need to protect society, it cannot be said that

she did not consider the § 3553(a) factors. See 18 U.S.C. § 3553(a); see also Scott,

426 F.3d at 1329 (holding that the district court is not required “to state on the

record that it has explicitly considered each of the § 3553(a) factors or to discuss

each of the § 3553(a) factors”). Because the district judge considered the Chapter

7 guideline range and the § 3553(a) factors, the judge did not plainly err in

imposing Smith’s twelve-month sentence. Moreover, assuming without deciding

that these revocation issues implicate Smith’s due process rights, because no plain

error has occurred, that argument is also without merit.

III. CONCLUSION

Smith has appealed his twelve-month sentence following revocation of his

supervised release. As we have explained, his allegations that the district judge

failed to consider the factors in § 3553(a) and that the judge failed to provide him

due process of law because he was sentenced above the applicable Guidelines

range without considering Chapter 7 policy statements, the latter being raised for

the first time on appeal, are unavailing. Accordingly, his twelve-month sentence is

AFFIRMED.

11