[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 27, 2006
No. 05-13537 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 88-00539-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW MAC BROWN,
a.k.a. Westley Brown,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 27, 2006)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Matthew Mac Brown appeals the 105-month sentence imposed after
revocation of his probation on the grounds that (1) the sentence is unreasonable
and an abuse of discretion by the district court, and (2) the sentence violates the
Double Jeopardy Clause. We AFFIRM.
I. BACKGROUND
In 1988, Brown was indicted in the Middle District of Florida for one count
of robbery of a bank with a deadly weapon, pursuant to 18 U.S.C. § 2113(a), (d), to
which he pled guilty. He consented to be sentenced for the count in the Southern
District of Florida, where he also was under indictment for robbery of a post office
with a deadly weapon, pursuant to 18 U.S.C. § 2114(a). Brown pled guilty to the
post office robbery in exchange for dismissal of related kidnaping charges.
In January 1989, the district judge sentenced Brown to twenty-five years of
imprisonment for the post office robbery. The judge withheld imposition of a
sentence for the bank robbery and instead placed Brown on four years of
probation to “commence upon discharge from incarceration” for the post office
robbery and to “run concurrently with any parole” in that case. R1-10. The district
judge noted that the sentence imposed was “under the pre-November 1, 1987
parole statutes and the post-November 1, 1987 good time allowance statutes.” Id.
In June 2003, a probation officer petitioned the district court to revoke
Brown’s probation in the bank robbery case based on his illegal drug use. R1-13.
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The district judge did not revoke Brown’s probation but reinstated the probation
and added conditions of drug treatment and full-time employment. R1-26. In May
2004, a probation officer again petitioned the district court to revoke Brown’s
probation based on his arrest in March 2004 by Florida state police for armed
robbery with a knife (“2004 armed robbery”). R1-27.
At the sentencing hearing, Brown admitted to his probation violation. R4 at
4. The district judge first found that Brown freely and voluntarily admitted the
probation violation. Id. at 26, 40. The judge noted that Brown had committed the
2004 armed robbery less than a year after the 2003 probation hearing, at which he
had received a very lenient sentence recommendation from the government. Id. at
27. The district judge read into the record the probation officer’s report that
concluded Chapter 7 of the Sentencing Guidelines, concerning probation
revocation, was not applicable to Brown’s case because he was not originally
sentenced under the Guidelines. Id. at 41. Brown's presentence investigation
report showed that he was re-paroled, and his probation was re-activated on
January 31, 2004. Id. at 42-43. The report stated that, during the armed robbery
on March 21, 2004, Brown approached two store cashiers, and he stole money
from one register while he brandished a knife. Id. at 43. Brown used his fourteen-
year-old step-daughter as a get-away driver, and an infant was in the car at the
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time. Id. at 44.
The district judge accepted Brown’s Guidelines calculation of 84 to 105
months for the initial bank robbery, based on an offense level of 22 and criminal
history category of VI. Id. at 46-47. Consulting the 18 U.S.C. § 3553 factors to
determine the appropriate sentence, the district judge noted that Brown received a
significant break when he was originally sentenced for the bank robbery and
received only probation. Id. at 48-49. The judge was concerned that Brown had
violated his probation in 2004 by committing an armed robbery after being
recently reinstated to probation for drug-testing violations and determined that the
sentence must reflect his continued violent conduct. Id. at 49-50. The district
judge opined that a sentence at the top end of the Guidelines range was necessary
for deterrence, promotion of respect for the law, punishment of Brown, and
protection of the public; the top end of the range would reflect the seriousness of
the offense. Id. at 50. Furthermore, the judge found that the Chapter 7 probation
revocation guidelines were too low and stated that Brown should have been
sentenced to 105 months regardless of whether his criminal history category was a
V or VI in order to reflect the nature of his criminal history. Id. at 50-53. The
district judge sentenced Brown to serve the term consecutive to the seventy-two-
month state sentence for the 2004 armed robbery and any future term imposed for
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violation of his parole for the post office robbery conviction. Id. at 52-53; R1-55 at
2. Brown appeals his sentence for 105 months of imprisonment, and he contends
that the sentence, which runs consecutive to his state sentence, constitutes double
jeopardy.
II. DISCUSSION
A. Reasonableness of Sentence for 105 Months of Imprisonment
Brown argues that his sentence of 105 months of imprisonment is
unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005),
and that the district judge abused his discretion by sentencing him based on the
Sentencing Guidelines range then applicable to the bank robbery. He maintains
that, according to 18 U.S.C. § 3553, the district judge needed to consider only the
policy statements in Chapter 7 of the Sentencing Guidelines when fashioning his
sentence and that the Sentencing Guidelines are only advisory. Brown further
contends that his criminal history category of VI and grade A probation violation
calculate to a Guidelines range of 33 to 41 months of imprisonment and that the
district judge abused his discretion by dismissing this range as too low and using
instead the Guidelines range for the original offense of 84 to 105 months of
imprisonment.
We generally review a district court’s revocation of probation and “decision
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to exceed the sentencing range in Chapter 7 of the Sentencing Guidelines for abuse
of discretion,” United States v. Dunham, 240 F.3d 1328, 1330 (11th Cir. 2001) (per
curiam), while we review the legality of a sentence de novo, United States v. Cook,
291 F.3d 1297, 1299 n.2 (11th Cir. 2002) (per curiam). At the time that Brown
committed the bank robbery, 18 U.S.C. § 3565(a)(2) required a district judge, upon
revoking a defendant’s probation, to “impose any other sentence that was available
under subchapter A at the time of the initial sentencing.” 18 U.S.C. § 3565(a)(2)
(1988); see United States v. Smith, 907 F.2d 133, 135 (11th Cir. 1990) superseded
by 1994 amendments to 18 U.S.C. § 3565(a)(2); see also Johnson v. United States,
529 U.S. 694, 702, 120 S.Ct. 1795, 1801-02 (2000) (finding that the version of the
statute that should be applied at revocation proceedings is the statute that was in
force at the time of the initial offense). In United States v. Tellez, 915 F.2d 1501,
1502 (11th Cir. 1990) (per curiam), we further held that a defendant sentenced
under pre-Guidelines law during the period of time when the Southern District of
Florida had found the Guidelines to be unconstitutional should be sentenced, upon
revocation of probation, under the Guidelines range that would have applied at the
time of initial sentencing. Ultimately, a district judge must consult the factors
found in 18 U.S.C. § 3553(a) to construct a sentence upon revocation of probation.
18 U.S.C. § 3565(a) (2000).
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Brown cannot show that the district judge erred in sentencing him to 105
months of imprisonment because the judge sentenced Brown within the Guidelines
range that would have applied at the time of his initial sentencing. See Tellez, 915
F.2d at 1502; see also Cook, 291 F.3d at 1300. Further, the district judge’s
statements at sentencing evince that the judge utilized the factors in § 3553 to
determine the sentence and concluded that the sentence should run consecutively to
that of the state court and any future parole violation sentences based on those
factors; namely, that a sentence at the top end of the Guidelines range was
necessary for deterrence, promotion of respect for the law, to punish Brown, to
protect the public, and to reflect the seriousness of the offense. The district judge
specifically noted that the Chapter 7 probation revocation guidelines resulted in a
recommended range that was too low. See United States v. Hofierka, 83 F.3d 357,
360 (11th Cir. 1996) (per curiam) (noting that our holding that the Chapter 7 policy
statements in the Guidelines are only advisory, not binding). Therefore, we
conclude that the district judge reasonably substantiated Brown's 105-month
sentence of imprisonment.
B. Allegation of Double Jeopardy Violation
Brown also argues that the district judge erred in imposing the 105-month
sentence consecutive to (1) the seventy-two-month state sentence that he had
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received for the 2004 armed robbery, and (2) any future sentence imposed by the
parole commission for violating parole on his post office robbery conviction.
Brown acknowledges that revocation of probation generally does not trigger
double jeopardy, but he suggests that his case is distinguishable because the judge
did not originally impose a sentence of imprisonment for the bank robbery, only a
term of probation. Brown maintains that the original judge apparently determined
that twenty-five years of imprisonment was sufficient to punish him for both the
post office robbery and bank robbery, which renders the 105 months of
imprisonment a double punishment for the 2004 armed robbery. Appellant's Br. at
14.
We review questions of law de novo. United States v. Dabbs, 134 F.3d
1071, 1079 (11th Cir. 1998). The Double Jeopardy Clause provides that “[n]o
person shall. . . . twice [be] put in jeopardy of life or limb” for the same offense.
U.S. Const. amend. V. The Supreme Court has held that no double jeopardy
protection exists against the revocation of probation. United States v. DiFrancesco,
449 U.S. 117, 137, 101 S.Ct. 426, 437 (1980); see also United States v. Whitney,
649 F.2d 296, 298 (5th Cir. Unit B Jun. 1981) (per curiam) (same). The Whitney
panel explained that “[t]he purpose of parole and probation revocation proceedings
is to determine whether a parolee or probationer has violated the conditions of his
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parole or probation,” and such proceedings were “not designed to punish a criminal
defendant for violation of a criminal law.” 649 F.2d at 298. Furthermore, “[t]he
Double Jeopardy Clause does not prevent different sovereigns (i.e., a state
government and the federal government) from punishing a defendant for the same
criminal conduct.” United States v. Bidwell, 393 F.3d 1206, 1209 (11th Cir.
2004). Consequently, Brown's allegation of double jeopardy is unavailing.
III. CONCLUSION
Brown has appealed 105-month sentence as being in violation of Booker and
double jeopardy. As we have explained, his imprisonment sentence is reasonably
substantiated by the district court and does not violate double jeopardy.
Accordingly, his 105-month imprisonment sentence is AFFIRMED.
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