[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 9, 2007
No. 07-10843 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00026-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMORY LINHART LARISCY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 9, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Emory Linhart Lariscy appeals the district court’s imposition of a 24-month
term of incarceration upon revocation of his supervised release. For the reasons
that follow, we affirm.
I. BACKGROUND
In August 2006, Lariscy was convicted of making a threat against the
President of the United States, in violation of 18 U.S.C. § 871(a), and sentenced to
15 months’ imprisonment to be followed by a three-year term of supervised
release. Special Condition Number 2 of Lariscy’s supervised release prohibited
him from consuming alcoholic beverages. Standard Condition Number 2 required
that Lariscy report to the probation officer and submit a truthful and complete
written report within the first five days of each month.
On the evening of December 21, 2006, U.S. Probation Officer David Lamb
made an unannounced visit to Lariscy’s home and observed Lariscy sitting with an
open can of beer while entertaining a female friend. Lariscy admitted to Officer
Lamb that he had been drinking and stated that he was “too old to change.” Based
on this encounter, on January 10, 2007, Officer Lamb filed a petition to revoke
Lariscy’s supervised release.
On January 11, 2007, Officer Lamb phoned Lariscy and told him to report to
the probation office for a urinalysis scheduled later that day. Lariscy asked Officer
Lamb to postpone the urinalysis until the next day, but Lamb refused. Lariscy
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became upset and stated that “he didn’t know he was living in Nazi, Georgia.”
Lariscy failed to report to the probation office for his urine test.
On January 12, 2007, Officer Tony Taylor went to Lariscy’s home to
execute the arrest warrant arising from the January 10th revocation petition.
Lariscy greeted Taylor in a “very hostile” manner and reiterated his references to
living in “Nazi, Georgia.” Officer Taylor saw Lariscy with a beer, smelled the
aroma of alcohol on Lariscy’s person, and surmised that he was intoxicated. After
Lariscy calmed down, Officer Taylor arrested him.
On January 25, 2007, Officer Lamb filed an addendum to the revocation
petition, reporting Lariscy’s refusal to submit to a urinalysis on January 11th and
his consumption of alcohol January 12th.
At the revocation hearing, the district court heard the testimony of Officers
Lamb and Taylor regarding the events of December 21, 2006 and January 12,
2007. On cross-examination, Officer Lamb testified that he had visited Lariscy’s
home twice before his December 2006 visit and had not observed any other
infractions. Officer Taylor testified that he did not use an intoximeter on Lariscy
the day he arrested him, and that although he had been to Lariscy’s home before,
none of those previous encounters had caused him to believe that Lariscy was
violating the conditions of his supervised release. The court also considered
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written statements of three employees of a county detention center made several
hours after Lariscy’s arrest. All three of the detention center employees stated that
Lariscy did not appear to be intoxicated at the time they observed him, which was
five to six hours after his arrest.
Before imposing sentence, the district court noted that it had been “very
lenient” in imposing Lariscy’s initial sentence. The court stated that Lariscy “has a
propensity to drink or to consume alcohol, and then he is capable in the Court’s
view of great mischief when he does that.” In discussing Lariscy’s potential for
violence, the district court noted that Lariscy had previously threatened an attorney
who was administering an estate, that federal agents had unsuccessfully attempted
to dissuade Lariscy from threatening the President, and that in another criminal
case, a defendant had stolen a “small arsenal” from Lariscy. The court went on to
state that:
I thought Mr. Lariscy would heed the Court’s sentence on that
previous occasion last. The Court, in my view, gave him a very
lenient sentence. The probation officer points that out. But yet, Mr.
Lariscy has the potential to be violent, or at least to give people cause
regarding his threats.
After he was released by the prison authorities, within three
months, we have him consuming alcohol. It seems that all previous
occasions when he was in trouble it was due to the consumption of
alcohol. The previous sentence imposed was 12 to 18 months below
the applicable guideline imprisonment range.
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So the Court will not extend much more sympathy to thinking
this is an old man with a loud mouth and a violent temperament. If I
thought he was harmless, totally harmless, I would fashion a sentence
in accordance with that.
After stating that it had “considered the Sentencing Commission’s Chapter 7
advice,” the district court sentenced Lariscy to 24 months’ imprisonment. Lariscy
appeals.
II. STANDARDS OF REVIEW
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006). Our “[r]eview for reasonableness is deferential,” and “the party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both [the] record and the factors in [18 U.S.C.
§ 3553(a)].” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We
review the 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).
III. DISCUSSION
Upon finding by a preponderance of the evidence that a defendant has
violated a condition of his supervised release, a district court may, after
considering the factors set forth in § 3553(a), revoke the term of supervised release
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“and require the defendant to serve in prison all or part of the term of supervised
release authorized by statute for the offense that resulted in such term of supervised
release.” 18 U.S.C. § 3583(e); Sweeting, 437 F.3d at 1107. When revoking a term
of supervised release pursuant to § 3583(e), pertinent § 3553(a) factors include:
the nature and circumstances of the offense, the history and characteristics of the
defendant, providing just punishment for the offense, affording adequate
deterrence, the need to protect the public from further crimes of the defendant, the
Sentencing Guidelines range, and the relevant policy statements of the Sentencing
Commission. 18 U.S.C. § 3553(a).
Chapter 7 of the Guidelines governs violations of supervised release and
contains policy statements providing recommended ranges of imprisonment
applicable upon revocation. U.S.S.G. § 7B1.4, p.s.; Silva, 443 F.3d at 799. This
court has consistently held that the policy statements of Chapter 7 are merely
advisory and not binding. United States v. Aguillard, 217 F.3d 1319, 1320 (11th
Cir. 2000). Thus, although “the district court is required to consider the policy
statements, it is not bound by them.” Silva, 443 F.3d at 799. “When exceeding the
recommended range, the court must normally indicate that it considered the
Chapter 7 policy statements.” Id. “[I]t is enough that there is some indication that
the district court was aware of and considered them.” Aguillard, 217 F.3d at 1320.
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A. Consideration of the 18 U.S.C. § 3553(a) Factors
Lariscy argues that the 24-month sentence imposed by the district court was
unreasonable because the court failed to adequately consider the factors set forth in
18 U.S.C. § 3553(a). We disagree.
Although the court did not explicitly reference § 3553(a) in imposing
sentence, the court’s discussion of Lariscy’s history, his underlying offense of
conviction, and his potential for violence demonstrates that the court considered
the § 3553(a) factors in imposing the sentence. For example, the court noted that
Lariscy: (1) “has a propensity to drink or to consume alcohol,” which makes him
capable “of great mischief,” (2) has the potential to be violent, (3) violated the
conditions of his supervised release a mere three months after his release from
prison, and (4) had received a “very lenient” initial sentence. These statements
establish that the court considered Lariscy’s history and characteristics, see 18
U.S.C. § 3553(a)(1), the need to protect the public from further crimes of Lariscy,
see id. § 3553(a)(2)(C), and the need to afford adequate deterrence to criminal
conduct, see id. § 3553(a)(2)(B). Moreover, the court’s statements that federal
agents had unsuccessfully attempted to dissuade Lariscy from threatening the
President reflects the court’s consideration of the nature and circumstances of
Lariscy’s underlying offense, see id. § 3553(a)(1). And the court stated explicitly
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that it “considered the Sentencing Commission’s Chapter 7 advice,” see id.
§ 3553(a)(5). As such, the record establishes that the district court considered the
§ 3553(a) factors, including the pertinent policy statements of the Sentencing
Commission, and Lariscy’s reasonableness challenge fails in this regard.1
B. Whether the Sentence Is Greater than Necessary
Lariscy also argues that his sentence is unreasonable because it is greater
than necessary to meet the goals of the Sentencing Reform Act. We are
unpersuaded.
In imposing a sentence that exceeded the Chapter 7 advisory range,2 the
district court stated that it had “considered the Sentencing Commission’s Chapter 7
advice.” See Silva, 443 F.3d at 799; Aguillard, 217 F.3d at 1320. And, as
discussed above, the court discussed Lariscy’s previous “very lenient sentence,”
his “potential to be violent,” the “great mischief” that ensues from his “propensity
to drink or consume alcohol,” and the passage of a mere three months before he
1
The Government asserts that because Lariscy failed to object at sentencing either that
his sentence was unreasonable or that the district court did not consider the § 3553(a) factors, we
should review Lariscy’s challenge to the reasonableness of his sentence for plain error. But we
need not decide this issue, because even under a reasonableness standard, Lariscy’s appeal fails.
2
Lariscy’s underlying offense of conviction carries a mandatory maximum sentence of
five years’ imprisonment and is considered a Class D felony. See 18 U.S.C. § 3559(a)(2); 18
U.S.C. § 871(a). For a Class D felony, 18 U.S.C. § 3583(e)(3) authorizes a term of supervised
release of not more than two years. 18 U.S.C. § 3583(e)(3). Under the Chapter 7 policy
statements, Lariscy’s advisory Guidelines range of incarceration upon revocation was three to
nine months’ imprisonment.
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violated the terms of his supervised release. On this record, we cannot say that
Lariscy’s 24-month sentence was unreasonable or that the district court’s
imposition of this sentence was an abuse of discretion.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
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