[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 1, 2008
THOMAS K. KAHN
No. 07-14236
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 03-00603-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOLANCKE REID,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 1, 2008)
Before TJOFLAT, BLACK and FAY, Circuit Judges.
PER CURIAM:
Jolancke Reid appeals his sentence of 12 months and 1 day of imprisonment
imposed upon revocation of his supervised release. Reid argues that the Supreme
Court has held that supervised release may be revoked for failure to pay restitution
only if that failure was willful. Reid contends that the district court clearly erred in
revoking his supervised release based on his failure to pay restitution because the
court failed to make explicit findings that his failure to pay was willful. Reid
asserts that the testimony presented at sentencing established that he was unable to
pay restitution due to his limited income and his obligation to provide basic
necessities for his family. Second, Reid argues that his sentence was unreasonable
and was greater than necessary to satisfy the purposes of sentencing set forth in 18
U.S.C. § 3553(a). Reid asserts that the advisory sentencing range for a technical
violation of the conditions of his supervised release was three to nine months’
imprisonment and argues that the district court improperly imposed a sentence
three months and one day above the upper end of this range without considering
the § 3553(a) factors.
For the reasons set forth more fully below, we affirm.
I. Willful Failure to Pay Restitution
The district court’s decision regarding revocation of supervised release is
reviewed for abuse of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th
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Cir. 1994). The district court can revoke a term of supervised release if it “finds by
a preponderance of the evidence that the defendant violated a condition of
supervised release . . . .” 18 U.S.C. 3583(e)(3). The district court’s findings of fact
with regard to violations of supervised release are binding unless clearly
erroneous. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).
Pursuant to 18 U.S.C. § 3613A,
Upon a finding that the defendant is in default on a payment of a fine
or restitution, the court may, pursuant to section 3565, revoke
probation or a term of supervised release, . . . resentence a defendant
pursuant to section 3614, . . . or take any other action necessary to
obtain compliance with the order of a fine or restitution.
In determining what action to take, the court shall consider the
defendant’s employment status, earning ability, financial resources,
the willfulness in failing to comply with the fine or restitution order,
and any other circumstances that may have a bearing on the
defendant’s ability or failure to comply with the order of a fine or
restitution.
18 U.S.C. § 3613A(a)(1), (2) (subsections omitted).
In revocation proceedings for failure to pay restitution, the court must find
the defendant’s failure to pay was willful, i.e., the defendant had the means or
ability to pay a fine or restitution as ordered and purposefully did not do so. See
Bearden v. Georgia, 461 U.S. 660, 668, 103 S.Ct. 2064, 2070, 76 L.Ed.2d 221
(1983). The government may establish willful failure to pay by producing
evidence the defendant had funds available to pay restitution and did not do so.
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See United States v. Boswell, 605 F.2d 171, 175 (5th Cir. 1979). “[A defendant’s]
failure to make sufficient bona fide efforts to seek employment or borrow money
in order to pay the fine or restitution may reflect an insufficient concern for paying
the debt he owes to society for his crime,” and in such a situation, “the State is
likewise justified in revoking probation and using imprisonment as an appropriate
penalty for the offense.” Bearden, 461 U.S. at 668, 103 S.Ct. at 2070. We
determined, in United States v. Satterfield, 743 F.2d 827, 842 (11th Cir. 1984),
that, under Bearden, a district court must consider two threshold criteria in
revocation hearings. The court must first consider whether the defendant has made
sufficient efforts to pay. Id. If a defendant has made sufficient efforts and still
cannot comply with the terms of his probation, the district court must determine
whether imprisonment or an alternative is an appropriate punishment. Id.
As an initial matter, although the district court did not explicitly find that
Reid’s behavior was willful, it did find that he “ignored his obligations” and had
been unwilling to follow the court’s instructions. Thus, the district court implicitly
found that Reid’s conduct was willful. See Bearden, 461 U.S. at 668, 103 S.Ct. at
2070. In determining that Reid’s supervised release should be revoked, the district
court considered Reid’s employment, his access to other financial resources and
assets that could be sold, and his failure to make any effort to satisfy his restitution
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obligation after the first revocation hearing. Therefore, the record indicates that the
district court properly considered the § 3613A factors. 18 U.S.C. § 3613A.
The record also shows that Reid admitted that he did not make restitution
payments as ordered. Although he asserted that he was unable to make restitution
payments because of other expenses related to the maintenance of his home and his
car, the record indicates that Reid did not contact his probation officer to discuss
his financial difficulties and request a different payment schedule. Reid could have
petitioned the court for a modification of his restitution payment schedule pursuant
to 18 U.S.C. § 3664(k). The record further indicates that Reid submitted false
monthly reports to the probation office, which indicated that he had been making
restitution payments and that he did not have any expenses over $500. In light of
the foregoing, the district court did not clearly err in implicitly finding that Reid
did not make sufficient efforts to pay and willfully failed to pay restitution.
Accordingly, it did not abuse its discretion in revoking his supervised release.
See Boswell, 605 F.2d at 175.
II. Reasonableness of Reid’s Sentence
A district court’s decision to exceed the advisory sentencing range in
Chapter 7 of the Sentencing Guidelines, U.S.S.G. § 7B1.4, is reviewed for an abuse
of discretion. United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006). We
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review the sentence imposed upon the revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006).
Section 3583 of Title 18 provides that a district court may revoke a term of
supervised release and impose a sentence of imprisonment for the violation after
considering factors set forth in 18 U.S.C. § 3553(a). Sweeting, 437 F.3d at 1107.
Section 3553(a) provides that district courts imposing a sentence must first
consider, inter alia, (1) the nature and circumstances of the offense; (2) the history
and characteristics of the defendant; (3) the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, and provide just
punishment for the offense; and (4) the kinds of sentences and sentencing range
established by the Guidelines, and in the case of a violation of supervised release,
the applicable Guidelines or policy statements issued by the Sentencing
Commission. Id. The term imposed cannot exceed the statutory maximum. Id.
For a Class B felony, the district court may not sentence a defendant for
more than three years’ imprisonment. 18 U.S.C. § 3583(e)(3). Chapter 7 of the
Sentencing Guidelines recommends a sentencing range of 3 to 9 months for a
Grade C violation of supervised release when the defendant has a criminal history
category of I. U.S.S.G. § 7B1.4. We have consistently held that the policy
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statements of Chapter 7 are merely advisory and not binding. United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
To the extent that Reid argues that his sentence is unreasonable because the
district court failed to properly consider the § 3553(a) factors, the district court’s
comments at the revocation hearing indicated that it considered those factors,
particularly the nature and seriousness of the underlying offense, the need to
provide just punishment, and the need to promote respect for the law in imposing a
sentence above the advisory guideline range. The district court may determine the
weight to be afforded any given § 3553(a) factor. See United States v. Amedeo,
487 F.3d 823, 832 (11th Cir. 2007).
Specifically, the court found that Reid’s failure to pay restitution was a
serious violation in light of the amount of money he embezzled, which exceeded
$200,000. The court noted that Reid was granted a second opportunity to comply
with the conditions of his release, but determined that he ignored his obligations
and continued to violate those conditions by failing to pay restitution and by failing
to report to his probation officer. In light of Reid’s conduct while on supervised
release, including his willful failure to pay restitution, he failed to satisfy his
burden to show that sentence was unreasonable, and the district court did not abuse
its discretion in imposing a sentence that exceeded the advisory guideline range.
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See Sweeting, 437 F.3d at 1107.
In light of the foregoing, the revocation of Reid’s supervised release and the
sentence imposed by the district court are
AFFIRMED.
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