[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 15, 2007
No. 07-10472 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-00124-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARON ANTON SMITH, a.k.a. Twin,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 15, 2007)
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Daron Anton Smith appeals his 24-month sentence, which the district court
imposed in connection with the revocation of his supervised release. On appeal,
Smith argues that his sentence is not reasonable because it is greater than necessary
and it subverts the goals of the Sentencing Reform Act. Specifically, Smith argues
that the court made its sentencing decision without adequately weighing the §
3553(a) mitigating factors, and that, consequently, his resulting 24-month sentence
is unreasonable. Smith also contends that the court erred in making an upward
departure in sentencing him. Upon review, we AFFIRM.
I. FACTS
In 1994, Smith pled guilty to one count of possession of cocaine with the
intent to distribute, in violation of 18 U.S.C. § 846, and one count of possession of
a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).
The district court engaged in a downward departure and sentenced Smith to 87
months of prison for the drug possession count and 60 months of prison for the
firearm count, with the sentences to run consecutively. The district court also
subjected Smith to a supervised release period of five years. Under the terms of his
supervised release, Smith was prohibited from the excessive use of alcohol and the
use of any controlled substance.
Smith served his sentence, was released from prison, and commenced his
period of supervised release, in 2005. In October 2005, Smith’s probation officer
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submitted a request for a modification of the terms of his supervised release, so as
to require Smith’s participation in a treatment program for drug and alcohol abuse.
In November 2005, Smith’s probation officer again requested a modification of the
terms of supervised release, this time because Smith had refused to cooperate with
the court-mandated substance abuse program. In July 2006, the probation officer
filed a third request for modification of the terms of Smith’s supervised release,
because Smith had been cited for driving with a suspended license.
In October 2006, Smith’s urine sample tested positive for marijuana use. He
later signed a written admission that he had used marijuana on 11 October 2006.
In December 2006, Smith’s probation officer submitted a fourth filing to the
district court, stating that Smith had admitted the use of marijuana and requesting a
revocation of Smith’s supervised release.
At the preliminary revocation hearing, the probation officer informed the
district court that Smith had attempted to flee when the United States marshals
tried to arrest him on 21 December 2006. The arresting officer testified that he had
sought to arrest Smith, but that Smith had “floored it” and tried to leave the
parking lot. R3-54 at 5. The officers had attempted to block Smith’s vehicle in
with their vehicles, but Smith had put his car into reverse and “backed into” one of
the vehicles. Id. at 5-6. The officer testified that Smith had then forcefully resisted
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the officers as they tried to detain him, and that they had been forced to use a taser
on Smith in an effort to subdue him. The magistrate judge found probable cause as
to the supervised release violation, and ordered Smith detained until his full
hearing.
The district court held a revocation hearing in January 2007. The court
commenced the hearing by stating its view that Smith was a “hopeless case” and
that his record was “miserable.” R4-55 at 5. The court then asked Smith’s counsel
for some further explanation as to the events that had transpired in connection with
the December 2006 arrest.
Smith’s counsel acknowledged his client’s marijuana use. However, his
counsel requested that the district court take into consideration that Smith’s father
had recently passed away. He indicated that the circumstances surrounding his
arrest, including his attempt to flee by colliding with a U.S. Marshall’s car, were
manifestations of his excessive grief at the death of his father. Smith’s counsel
also pointed out that Smith had four children, and that he was meeting his child
support obligations. He also stated that Smith had been working steadily since his
release.
Smith personally addressed the court to offer his explanation regarding his
conduct at the December arrest. Smith stated that his collision with the officer’s
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car while attempting to flee “wasn’t really a major collision. I just like tapped the
bumper of the car, sir.” Id. at 12. Smith stated that he had been trying to pick up
his paycheck, so he could help pay for the funeral of his father, who had passed
away that week. Smith reiterated that he had been steadily employed, had been
paying child support, and had made an effort to rejoin society, even if it was not
always a perfect effort.
Smith’s probation officer then testified that he had done everything possible
to try and get Smith to comply with the terms of his supervised release, from
community service to substance abuse treatment, but that nothing had seemed to
work. The probation officer challenged Smith’s contention that his attempt to flee
the officers during his December arrest was an unusual, one-time occurrence;
rather, the officer reminded the court that Smith had similarly attempted to flee law
enforcement, by jumping out of a window, during his initial arrest in 1994. The
officer also stated that in fleeing from the officers in his vehicle in December 2006,
Smith had placed the public in danger.
The district court observed that this was Smith’s fourth violation of
supervised release, and its previous attempts at getting Smith to comply with his
supervised release had failed. The court stated that Smith may not be a “hopeless”
case, as he was a “reasonably intelligent man who can hold a job,” but that his
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positive endeavors had been outweighed by his probation violations and his
attempt to evade arrest, which unnecessarily jeopardized the lives of others. Id. at
18. The court stated that Smith was apparently incapable of “accept[ing]
responsibility.” Id. at 19. The court then stated that the “only result that [the court
could] see” was to revoke Smith’s supervised release and sentence him to 24
months’ imprisonment. Id.
The court acknowledged that a 24-month sentence was an upward departure,
but that it was based upon Smith’s actions during the arrest and the downward
departure he had received at his original sentencing. In doing so, the court stated
that it had “considered the policies and the Sentencing Commission requirements
of Chapter 7 and the policy statements relating to the sentences.” Id. This appeal
followed.
II. DISCUSSION
Smith makes two arguments on appeal. First, he contends that his sentence
is unreasonable because the district court failed to adequately consider the §
3553(a) factors. Specifically, Smith claims that the court’s statement at the
probation revocation hearing that his case was “hopeless,” R4-55 at 5, suggests that
the court had made its sentencing decision prior to considering the § 3553(a)
mitigating factors that were raised at the hearing–namely, the fact that his conduct
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was partially attributable to his emotional distress following the death of his father;
the fact that he was paying his child support obligations and working regularly; and
the fact that he was making a sincere effort to rejoin society. Smith contends that
the court’s failure to adequately consider these § 3553(a) factors demonstrates that
his sentence is unreasonable. As a second argument, Smith claims that the court
abused its discretion by upwardly departure in sentencing him. We address each
contention in turn.
Sentences imposed for violation of supervised release under an advisory
guidelines system are reviewed for reasonableness. United States v. Sweeting, 437
F.3d 1105, 1106-07 (11th Cir. 2006) (per curiam). “Under 18 U.S.C. § 3583(e), a
district court may, upon finding by a preponderance of the evidence that a
defendant has violated a condition of supervised release, revoke the term of
supervised release and impose a term of imprisonment after considering certain
factors set forth in 18 U.S.C. § 3553(a).” Sweeting, 437 F.3d at 1107. Those
factors include: (1) the nature and circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the need for the sentence imposed to provide
adequate deterrence, protect the public, and provide the defendant with needed
medical care or correctional treatment; (4) the pertinent Sentencing Commission
policy statements; and (5) the need to avoid unwarranted sentencing disparities.
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See 18 U.S.C. § 3553(a).
The court need not, however, explicitly consider every single § 3553(a)
factor in order for the sentence to be reasonable. See United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005). Rather, “an acknowledgment by the court that it
has considered the defendant’s arguments and the factors in section 3553(a)” will
suffice. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam).
In determining if the court has adequately considered the defendant’s arguments
and the § 3553(a) factors, we can look to the district court’s statements over the
entire sentencing hearing. See United States v. Williams, 435 F.3d 1350, 1355
(11th Cir. 2006) (per curiam).
In this case, the district court’s sentence did reflect consideration of several
of § 3553(a)’s relevant factors. The court considered Smith’s inability to comply
with the terms of his supervised release despite numerous attempts by the court and
his probation officer to keep him in compliance. The court also noted that during
Smith’s most recent arrest, he had attempted to flee from police, thereby
endangering the lives of numerous persons. The court sentenced Smith to 24
months of imprisonment after stating that it had explicitly considered the policy
statements of Chapter 7. See R4-55 at 19 (“I have considered the policies and the
Sentencing Commission requirements of Chapter 7 and the policy statements
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relating to sentences.”). Because the court considered Smith’s particular history
and characteristics, the nature of the offense, the goal of protecting the public, and
the Chapter 7 policy statements, we conclude that the sentence was reasonable.
Smith next argues that the district court’s upward departure from the
guidelines was excessive. We review a district court’s decision to exceed the
advisory sentencing range in Chapter 7 of the Sentencing Guidelines for an abuse
of discretion. United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006) (per
curiam).
Chapter 7 of the Sentencing Guidelines governs violations of supervised
release, and it contains policy statements regarding such violations. See U.S.S.G.
ch.7, pt. A(3)(a). We have indicated that the policy statements of Chapter 7 are
advisory and not binding. Silva, 443 F.3d at 799. However, the district court must
consider them in imposing a sentence. United States v. Brown, 224 F.3d 1237,
1242 (11th Cir. 2000). Chapter 7 provides for a list of recommended ranges of
imprisonment that are applicable upon revocation of supervised release. See
U.S.S.G. § 7B1.4, p.s. Where the original sentence was the result of a downward
departure, an upward departure may be warranted. Id., p.s., cmt. n.4. If the
sentence imposed in revocation of supervised release is an upward departure in
excess of the range, it is enough that the district court give some indication that it is
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aware of and considered the Chapter 7 policy statements. United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000) (per curiam).
Here, the district court stated that it was departing upwardly from the
guidelines range after having considered the Chapter 7 policy statements.
Moreover, the court explicitly stated that one of its reasons for sentencing above
the recommended range was that Smith had received a downward departure at his
original sentencing hearing in 1995. The court indicated that an upward departure
was appropriate based on Smith’s conduct during his arrest–in which he collided
with an officer’s car while attempting to flee arrest and forcefully resisted being
detained. Because the policy statements of Chapter 7 are advisory, and because it
is clear from the record that the court was aware of and considered them in
sentencing Smith, the district court did not abuse its discretion in imposing a
sentence that exceeded the Guidelines range. See id.
III. CONCLUSION
Smith has appealed his 24-month sentence, which the district court imposed
in connection with the revocation of his supervised release. Having reviewed the
record, we conclude that the sentence imposed was reasonable, and that the court
did not abuse its discretion in upwardly departing from the recommended range.
Accordingly, we AFFIRM.
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