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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11741
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EDWARD VICKERS,
a.k.a. David J. Vickers,
a.k.a. D.J. Vickers,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:01-cr-00273-SCB-TBM-4
____________________
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2 Opinion of the Court 21-11741
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
David Edward Vickers appeals his 51-month sentence im-
posed following the revocation of his supervised release. On ap-
peal, he argues that (1) the statute under which the district court
revoked his supervised release, 18 U.S.C. § 3583(g), is unconstitu-
tional because it required the district court to revoke his supervised
release without a jury trial; (2) the district court improperly im-
posed a general sentence when it entered an undivided sentence
covering two counts that exceeded the maximum allowable sen-
tence on one of the counts; and (3) his sentence was procedurally
and substantively unreasonable. After careful consideration, we af-
firm.
I.
In 2001, a jury found Vickers guilty of one count of armed
bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one
count of using a firearm during a crime of violence, in violation of
18 U.S.C. § 924(c). The district court sentenced Vickers to a total
term of 384 months’ imprisonment, consisting of 300 months on
the armed bank robbery count followed by 84 months on the fire-
arm count, with the sentences to run consecutively. The district
court also sentenced Vickers to a term of five years of supervised
release on each count, with the terms to run concurrently. The
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21-11741 Opinion of the Court 3
district court later reduced Vickers’s sentence on the armed bank
robbery count to 168 months’ imprisonment.
In 2019, Vickers was released from prison and began to serve
his term of supervised release. Less than two years into the term of
supervised release, Vickers was arrested. He was pulled over after
an officer observed him fail to stop his vehicle properly at a stop
sign. When the officer approached the car, he smelled fresh mari-
juana. Vickers admitted to smoking marijuana earlier in the day.
The officer directed Vickers to get out of the car, but he refused.
Around this time, a second officer arrived on the scene and
approached the passenger side of Vickers’s car. She saw a firearm
on the passenger seat. The first officer then removed Vickers from
the car and tried to handcuff him. But Vickers ran away, ignoring
the officers’ commands to stop. After one of the officers fired a
Taser, Vickers fell to the ground, and the officers arrested him.
Officers searched Vickers and later his car. They found
MDMA pills, crack cocaine, methamphetamine, marijuana, syn-
thetic marijuana, and a bottle of 200 prescription pills prescribed to
someone else. Vickers told the officers that the gun belonged to
him and admitted to selling drugs. The officers later discovered
that the gun had been reported stolen.
The United States Probation Office filed a petition in the dis-
trict court charging Vickers with violating the terms of his
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4 Opinion of the Court 21-11741
supervised release. 1 The petition alleged the following violations:
new criminal conduct consisting of resisting an officer without vi-
olence, trafficking amphetamine, possessing MDMA with intent to
sell, possessing drug paraphernalia, possessing a prescription drug
without a prescription, possessing a firearm as a convicted felon,
and possessing crack cocaine, and a violation of a mandatory con-
dition of supervision by possessing a firearm and ammunition.
At Vickers’s revocation hearing, the government presented
testimony and evidence to establish that he committed each of the
charged violations. The government’s witnesses included the po-
lice officers involved in the stop. Vickers did not call any witnesses.
The district court found by a preponderance of the evidence that
Vickers had committed the charged violations.
The district court then considered an appropriate sentence.
It calculated Vickers’s guidelines range as 51 to 60 months’ impris-
onment. The court heard from his probation officer about his con-
duct while on supervised release. The probation officer testified
that Vickers had tested negative at all his regular drug screens and
participated in a drug treatment program. Before his arrest, Vickers
reported to the officer that several of his family members had re-
cently died. She helped him secure more frequent treatment ses-
sions to help him through this trauma.
1 Separate from the revocation proceedings, Vickers was charged in state
court with trafficking methamphetamine and other crimes arising out of this
incident.
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21-11741 Opinion of the Court 5
The court then heard from the parties. The government re-
quested a sentence at the high end of the guidelines range because
Vickers committed the violations—which involved selling drugs,
carrying a stolen gun, and fleeing from police officers—less than
two years after serving “a very long sentence.” Doc. 350 at 58. 2
Vickers urged the court to consider mitigating factors and
impose a sentence below the guidelines range. He noted that he
had maintained employment while on supervised release and had
recently started a catering business. He also pointed out that he had
cooperated with the treatment required as a condition of his super-
vised release and, in fact, requested additional assistance when his
family members died. He also asked the court to consider that
much of his criminal history included offenses that occurred when
he was a minor.
After hearing Vickers discuss his criminal history, the district
court discussed the underlying criminal case, mentioning that Vick-
ers was “very young” when he committed the armed bank rob-
bery. Id. at 60. The court also mentioned that during the robbery
one of the bank employees had a heart attack. Ultimately, the dis-
trict court sentenced Vickers to serve an additional 51 months’ im-
prisonment, which was at the low end of the guidelines range,
without any additional term of supervised release. After the court
imposed the sentence, Vickers indicated that he did not “have any
2 “Doc.” numbers are the district court's docket entries.
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6 Opinion of the Court 21-11741
procedural objection[s]” but did object to the substantive reasona-
bleness of the sentence. Id. at 64. This is Vickers’s appeal.
II.
We review de novo challenges to the constitutionality of a
statute. United States v. Cunningham, 607 F.3d 1264, 1266 (11th
Cir. 2010). But when, as here, a defendant raises a constitutional
challenge for the first time on appeal, we review for plain error. See
United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005).
We review de novo the legality of a sentence, including a
sentence imposed upon revocation of supervised release. United
States v. Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007). When a
party raises a challenge to a revocation sentence for the first time
on appeal, however, we review for plain error. United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
We generally review a sentence imposed upon revocation
of supervised release for reasonableness, applying a deferential
abuse of discretion standard. United States v. Vandergrift, 754 F.3d
1303, 1307 (11th Cir. 2014). But when a defendant raises an argu-
ment regarding the procedural reasonableness of his sentence for
the first time on appeal, we review for plain error. Id.
Under plain error review, an appellant must show: (1) an
error, (2) that was plain, (3) that affected his substantial rights, and
(4) that seriously affected the fairness of his judicial proceedings.
United States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014).
For an error to be plain, the legal rule must be clearly established
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21-11741 Opinion of the Court 7
at the time the case is reviewed on appeal.” United States v. Hesser,
800 F.3d 1310, 1325 (11th Cir. 2015). “Where the explicit language
of a statute or rule does not specifically resolve an issue, there can
be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving it.” Id. (alteration adopted)
(internal quotation marks omitted).
III.
Vickers raises three arguments on appeal. First, he says that
the revocation provision applicable in his case, § 3583(g), is uncon-
stitutional under the Fifth and Sixth Amendments. Second, he ar-
gues that the district court imposed a legally impermissible sen-
tence because the sentence of 51 months on both counts exceeded
the statutory maximum sentence of three years available upon rev-
ocation for the armed robbery count. Third, he challenges his sen-
tence as procedurally and substantively unreasonable. We address
each argument in turn.
A.
We begin with Vickers’s argument that § 3583(g) violates
the Due Process Clause of the Fifth Amendment and the right to a
jury under the Sixth Amendment because it mandates revocation
based on findings of fact made by a judge and necessarily results in
a sentence of at least one day in prison. Because Vickers raises this
argument for the first time on appeal, we review for plain error
only.
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8 Opinion of the Court 21-11741
A district court imposing a prison sentence may (and some-
times must) require a defendant to serve a term of supervised re-
lease after his release from prison. 18 U.S.C. § 3583(a). If a district
court finds by a preponderance of the evidence that a defendant has
violated a condition of supervised release, it typically has discretion
to revoke supervised release and impose incarceration, subject to a
statutory maximum sentence tied to the severity of the crime of
conviction. See id. § 3583(e)(3). But § 3583(g) removes this discre-
tion under certain circumstances. This provision requires revoca-
tion and incarceration if the defendant (1) unlawfully possessed a
controlled substance, (2) violated federal law or a supervised re-
lease condition by possessing a firearm, (3) refused to comply with
a supervised release condition requiring drug testing, or (4) tested
positive for illegal controlled substances more than three times
over the course of one year. Id. § 3583(g). 3
Vickers argues that the Supreme Court’s decision in United
States v. Haymond, 139 S. Ct. 2369 (2019), makes plain the uncon-
stitutionality of § 3583(g). In Haymond, the Court considered a
constitutional challenge to a different mandatory revocation provi-
sion, § 3583(k). See 139 S. Ct. at 2373 (plurality opinion). Under
§ 3583(k), if a defendant on supervised release who is required to
register as a sex offender commits one of several enumerated
3 A defendant who fails a drug test may be entitled to an exception from
§ 3583(g)’s mandatory revocation requirement. See 18 U.S.C. § 3583(d). Be-
cause the exception is not at issue in this appeal, we discuss it no further.
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21-11741 Opinion of the Court 9
offenses, the court “must impose an additional prison term of at
least five years . . . without regard to the length of the prison term
authorized for the defendant’s initial crime of conviction.” Id. at
2374 (emphasis in original). A fractured Supreme Court held that
§ 3583(k) was unconstitutional. Id. at 2373; id. at 2386 (Breyer, J.,
concurring in judgment). We briefly review the plurality opinion
and Justice Breyer’s separate opinion concurring in the judgment,
which is the controlling opinion in the case.4
The plurality concluded that § 3583(k) was unconstitutional
because its application could “expose a defendant to an additional
mandatory minimum prison term well beyond that authorized by
the jury’s verdict—all based on facts found by a judge by a mere
preponderance of the evidence.” Id. at 2382 (plurality opinion) (em-
phasis in original). The plurality relied on the Apprendi line of
cases, which held that an element that necessarily increases the
minimum or maximum prison sentence generally must be proven
to a jury beyond a reasonable doubt. Id. at 2377–78. See Apprendi
v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States,
570 U.S. 99 (2013). Although the plurality concluded that § 3583(k)
4 “When a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who concurred in the judg-
ment[] on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193
(1977) (internal quotation marks omitted); see also Haymond, 139 S. Ct. at
2386 (Alito, J., dissenting) (stating that Justice Breyer's concurrence contains
“today’s holding”).
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10 Opinion of the Court 21-11741
was unconstitutional, it made clear that it expressed no view on the
constitutionality of § 3583(g)’s mandatory revocation provision.
See Haymond, 139 S. Ct. at 2382 n.7 (plurality opinion).
Justice Breyer agreed that § 3583(k) was unconstitutional,
but his separate concurring opinion rested on a narrower ground.
See id. at 2385 (Breyer, J., concurring in judgment). He was not
persuaded that the Apprendi line of cases applied in the supervised
release context. See id. But three features of § 3583(k) “considered
in combination” led him to conclude that the provision was “less
like ordinary revocation and more like punishment for a new of-
fense, to which the jury trial right would typically attach.” Id. at
2386. He explained:
First, § 3583(k) applies only when a defendant com-
mits a discrete set of federal criminal offenses speci-
fied in the statute. Second, § 3583(k) takes away the
judge’s discretion to decide whether violation of a
condition of supervised release should result in im-
prisonment and for how long. Third, § 3583(k) limits
the judge’s discretion in a particular manner: by im-
posing a mandatory minimum term of imprisonment
of not less than 5 years upon a judge's finding that a
defendant has committed any listed criminal offense.
Id. (alterations adopted) (internal quotation marks omitted).
Vickers argues that under Justice Breyer’s opinion in Hay-
mond, § 3583(g) is unconstitutional because it shares § 3583(k)’s
problematic features. To be sure, § 3583(g) bears some
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21-11741 Opinion of the Court 11
resemblance to § 3583(k): both provisions “take[] away [a] judge’s
discretion to decide whether [a] violation of a condition of super-
vised release should result in imprisonment.” Id. But the two pro-
visions are not identical. Section 3583(k) more sharply restricts a
district court judge’s discretion by requiring a judge to impose a
mandatory minimum five-year sentence for a violation. In con-
trast, § 3583(g) does not strip a judge’s discretion to decide “for
how long” the defendant should be imprisoned. Id. Given this dif-
ference, we cannot say that Haymond “directly resolv[ed]”
whether § 3583(g) is unconstitutional and thus conclude that
Vickers failed to establish plain error. See Hesser, 800 F.3d at 1325
(internal quotation marks omitted); see also United States v.
Coston, 964 F.3d 289, 296 (4th Cir. 2020) (concluding that revoca-
tion of supervised release under § 3583(g) was not plain error);
United States v. Badgett, 957 F.3d 536, 540–41 (5th Cir. 2020)
(same); United States v. Ewing, 829 F. App’x 325, 330 (10th Cir.
2020) (unpublished) (same).
B.
We next turn to Vickers’s argument that his sentence of 51
months’ imprisonment was an illegal general sentence. Because
Vickers raises this argument for the first time on appeal, we review
for plain error only.
“A general sentence is an undivided sentence for more than
one count that does not exceed the maximum possible aggregate
sentence for all the counts but does exceed the maximum allowa-
ble sentence on one of the counts.” United States v. Moriarty,
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12 Opinion of the Court 21-11741
429 F.3d 1012, 1025 (11th Cir. 2005) (internal quotation marks
omitted). We previously have held that a general sentence in a final
judgment of conviction is per se illegal and requires remand. Id.
Vickers argues that the district court imposed an illegal gen-
eral sentence in this case. Because the maximum sentence for an
armed bank robbery is 25 years’ imprisonment, 18 U.S.C. § 2113(d),
the crime is a class B felony, meaning the maximum term of im-
prisonment a district court may impose upon revocation is three
years. Id. §§ 3559(a)(2); 3583(e)(3). Because the maximum sentence
for using a firearm in furtherance of a crime of violence is life, the
crime is a class A felony, meaning the maximum term of imprison-
ment a district court may impose upon revocation is five years. Id.
§ 3559(a)(1); 3583(e)(3). Here, the district court’s 51-month sen-
tence was a general sentence because the court imposed an undi-
vided sentence covering both the armed bank robbery and firearm
counts, and the sentence exceeded the maximum allowable sen-
tence on the armed bank robbery count. See Moriarty, 429 F.3d at
1025.
Even though the district court imposed a general sentence,
we cannot say that the court plainly erred here. We have held that
a general sentence in a final judgment of conviction is per se illegal
and requires remand. Id. But neither this Court nor the Supreme
Court has ever extended the prohibition against general sentences
to a term of imprisonment imposed upon revocation of supervised
release. Given the lack of precedent “directly resolving” whether a
district court may impose a general sentence when revoking
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21-11741 Opinion of the Court 13
supervised release, we conclude that Vickers failed to establish
plain error. 5 See Hesser, 800 F.3d at 1325 (internal quotation marks
omitted).
C.
We now consider Vickers’s argument that his sentence of 51
months was procedurally and substantively unreasonable.
We begin with Vickers’s argument about procedural unrea-
sonableness. He says that his sentence was procedurally unreason-
able because there is no indication that the district court considered
the § 3553(a) factors in imposing it. 6 Because he raises this
5 Vickers says that our predecessor court’s decision in Benson v. United States,
332 F.2d 288 (5th Cir. 1964), plainly established that a district court may not
impose a general sentence upon revocation of supervised release. But in Ben-
son the defendant challenged a sentence imposed in a final judgment of con-
viction, not upon revocation of supervised release. See id. at 289–90.
6 Section 3553(a) states that a court should “impose a sentence sufficient, but
not greater than necessary” to reflect the seriousness of the offense, promote
respect for the law, provide just punishment for the offense, afford adequate
deterrence to criminal conduct, protect the public from further crimes of the
defendant, and provide the defendant with needed educational or vocational
training or medical care. 18 U.S.C. § 3553(a)(2). In imposing a sentence, a court
also should consider: the nature and circumstances of the offense, the history
and characteristics of the defendant, the kinds of sentences available, the sen-
tencing range established under the guidelines, any pertinent policy statement
issued by the Sentencing Commission, the need to avoid unwarranted sen-
tencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(1), (3)–(7).
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14 Opinion of the Court 21-11741
argument for the first time on appeal, we review for plain error.
See Vandergrift, 754 F.3d at 1307.
As we mentioned above, Vickers’s supervised release was
revoked pursuant to § 3583(g), which applies when a defendant
possessed a controlled substance or firearm in violation of the con-
ditions of his supervised release. See 18 U.S.C. § 3583(g). “[W]hen
revocation of supervised release is mandatory under 18 U.S.C.
§ 3583(g), the statute does not require consideration of the
§ 3553(a) factors.” United States v. Brown, 224 F.3d 1237, 1241
(11th Cir. 2000) (internal quotation marks omitted), abrogated in
part on other grounds by Tapia v. United States, 564 U.S. 319, 332
(2011). 7 Because the district court was not required to consider the
§ 3553(a) factors in the § 3583(g) revocation proceeding, we cannot
say that the district court erred. See id. 8
7 At least one circuit has reached the opposite conclusion, that a district court
must consider the § 3553(a) factors when deciding the duration of a defend-
ant’s term of imprisonment imposed under the mandatory revocation provi-
sion in § 3583(g). See United States v. Thornhill, 759 F.3d 299, 309 (3d Cir.
2014). But under our prior panel precedent rule, we remain bound by Brown.
See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001).
8 Vickers also argues that the district court failed to give a sufficient explana-
tion to allow for meaningful appellate review. Although the district court’s
statement explaining the basis for its decision to impose a 51-month sentence
was brief, its explanation was sufficient because we can discern from the rec-
ord that the district court “considered the parties’ arguments and ha[d] a rea-
soned basis for exercising [its] own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356 (2007).
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21-11741 Opinion of the Court 15
Next, we turn to Vickers’s argument that his sentence was
substantively unreasonable because the district court failed to give
sufficient weight to evidence regarding his history and characteris-
tics and arguments regarding mitigation. He points out that he
complied with the terms of his supervised release until he was ar-
rested, he had several family members die over a short period of
time before he was arrested, and most of his criminal history in-
volved offenses that occurred when he was a minor.
We will reverse a sentence for substantive unreasonableness
only if we are “left with the definite and firm conviction that the
district court committed a clear error of judgment . . . by arriving
at a sentence that lies outside the range of reasonable sentences dic-
tated by the facts of the case.” United States v. Irey, 612 F.3d 1160,
1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
We ordinarily expect a sentence falling within the guidelines range
to be reasonable. See United States v. Croteau, 819 F.3d 1293, 1310
(11th Cir. 2016). “The fact that [we] might reasonably have con-
cluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Gall v. United States, 552 U.S.
38, 51 (2007).
After considering the facts of the case, we are not left with a
definite and firm conviction that the district court committed an
error of judgment when it imposed a 51-month sentence. This sen-
tence was within the guidelines range, which is an indicator of rea-
sonableness. See Croteau, 819 F.3d at 1310. Given that Vickers’s
violation of supervised release involved selling drugs, carrying a
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16 Opinion of the Court 21-11741
stolen firearm, and fleeing from police officers, the sentence was
not unreasonable.
AFFIRMED.