[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 11, 2007
No. 06-15378 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00288-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAMORIS LACKEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 11, 2007)
Before BLACK, CARNES and HULL, Circuit Judges.
PER CURIAM:
Lamoris Lackey pleaded guilty to fraud in violation of 18 U.S.C. § 371 in
October 2001 after police arrested him for his role in a conspiracy to forge and
cash checks stolen from local businesses in the Tuscaloosa, Alabama area. As a
result, the district court ordered that he pay approximately $12,000 in fines and
restitution and that he serve a 24-month term of imprisonment, to be followed by a
36-month term of supervised release. Lackey fulfilled the 24-month prison term,
but after (in his words) “almost 19 months of successful supervision,” he violated
several conditions of his supervised release. As a result, the district court imposed
a second 24-month prison sentence, and that sentence is what Lackey appeals here.
He contends that the district court abused its discretion when it exceeded the
guidelines range for such a violation without adequately considering the requisite
statutory factors.
I.
Before the district court, Lackey admitted to substantially all of his
probation officer’s allegations concerning violations of the terms of his supervised
release, which started in March 2003 after Lackey was released from prison. The
most notable of these allegations concerned the first condition of Lackey’s release,
that he “shall not commit another federal, state, or local crime.” On February 27,
2005—almost two years into his three-year period of supervision—Lackey
punched his common-law wife in the face several times. And twice in November
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of that year—with just three months left in the supervision period—Lackey
returned to his old ways: he stole checks from a restaurant and auto repair shop,
forged the checks, and then cashed them. Altogether, these episodes led to
Lackey’s prosecution and punishment for three state crimes—battery and “Theft by
Receiving” (misdemeanors), and “Forgery in the First Degree” (a felony). In other
words, Lackey had violated the first condition of his release not once, but three
times.
On top of these run-ins with the Georgia criminal justice system, his
probation officer alleged—and Lackey admitted—four other ways Lackey violated
his supervised release terms. He failed to report for meetings with his probation
officer as required in January and March 2005; he neglected to submit required,
written monthly reports from February 2005 to October 2005; and he failed to
notify his probation officer as required when he changed his address in December
2004. Furthermore, after an erratic schedule of paying his required monthly fine
and restitution installments during the first year and a half of his supervised
release, Lackey ceased making the payments altogether starting in December 2004.
The district court imposed the statutory maximum for a violation of
supervised release while serving a sentence under 18 U.S.C. § 371, which is 24
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months.1 That term exceeded the 8-14 month range suggested in United States
Sentencing Guidelines § 7B1.4 (Nov. 2005) for Lackey’s criminal history category
and type of release violation. In arriving at its result, the district court
acknowledged the guideline range, but recounted Lackey’s “troubling record” of
two forgery convictions in the 1990s and the underlying fraud involving stolen
checks that led to the supervised release in the first place. The fact that Lackey had
resumed his stolen-check scheme not once but twice while under the court’s
supervision meant to the district court that “[s]upervision [was] not really practical
here.”
II.
On appeal, Lackey challenges the district court’s decision to exceed the
range of prison sentences recommended in Chapter 7 of the Sentencing Guidelines
for revocation of a supervised release term. Such a decision is reviewed only for
an abuse of discretion. United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006).
A district court may revoke a term of supervised release and impose a term
of imprisonment after finding by a preponderance of the evidence that a defendant
1
The fraud statute under which Lackey was originally sentenced, 18 U.S.C. § 371,
carries a statutory maximum of 5 years imprisonment and is thus considered a Class D Felony.
See 18 U.S.C. § 3559(a)(4); 18 U.S.C. § 371. For a Class D Felony, 18 U.S.C. § 3583(e)(3)
authorizes a term of imprisonment upon revocation of supervised release of not more than two
years. See 18 U.S.C. § 3583(e)(3).
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has violated a condition of his supervised release and after considering certain
statutory factors. See 18 U.S.C. § 3583(e). Those factors include: (1) the nature
and circumstances of the offense and the history and characteristics of the
defendant; (2) the need to afford adequate deterrence of criminal conduct; (3) the
need to protect the public from further crimes of the defendant; (4) the need to
provide the defendants with needed educational or vocational training, medical
care, or other correctional treatment; (5) the applicable guidelines and policy
statements issued by the Sentencing Commission; (6) the need to avoid
unwarranted sentencing disparities; and (7) the need to provide restitution. See id.;
18 U.S.C. § 3553(a). Although the district court is obligated to consider these
factors as a whole, noting in our case law or that of the Supreme Court requires the
district court to discuss each of them separately. See United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005) (holding, in a direct sentence appeal, that
“nothing in [United States v.] Booker[, 543 U.S. 220, 125 S. Ct. 738 (2005)] or
elsewhere” requires explicit discussion of the § 3553(a) factors).
The gist of Lackey’s argument is that, in exceeding the guidelines
recommendation, the district court considered his “history and characteristics” to
the exclusion of all the other enumerated factors. And, Lackey says, those other
factors “all mitigate for a reasonable sentence that is lower than that imposed by
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the district court.” In particular, Lackey argues that his “almost 19 months of
successful supervision” mean that Lackey does not pose a serious risk to the
public; that a guideline sentence provides ample deterrence; and that “[t]here is
nothing to indicate that [Lackey needs] training, medical care or any other
correctional treatment.” Furthermore, Lackey argues, the district court’s decision
to exceed the Chapter 7 guideline range “by definition . . . created a sentencing
disparity,” and his outstanding restitution balance of approximately $9,500 cut
against a sentence that would leave “no mechanism for demanding
payment.”
We are unpersuaded by Lackey’s argument because as this case in fact
shows, the statutory factors a sentencing court must consider overlap to a great
extent. In lamenting Lackey’s two attempts at passing stolen checks while on
supervision, the district court’s reasoning reflected not only Lackey’s “history” of
crimes involving fraud but also: (1) the “circumstances” of his violation (i.e., that
the stolen-check incidents were a continuation of a longstanding pattern of fraud);
(2) that stronger efforts would be needed to deter further criminal conduct by
Lackey; and (3) that the public was still at risk of Lackey’s stolen-check-passing
inclinations even after his “almost 19 months of successful supervision.” And
since the court also explicitly noted the recommended guideline range, we know
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that it considered at least four of the seven statutory factors. These circumstances
show that the district court more than adequately considered the requisite factors.
There was no abuse of discretion.
AFFIRMED.
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