[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 10, 2008
No. 08-12845 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00004-CR-CDL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIMBERLY RENEE ROBERTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 10, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Kimberly Renee Roberts appeals her 14-month sentence, which included a
four-month variance over the applicable guideline range, upon revocation of
supervised release. Roberts’s sentence was procedurally reasonable because the
district court addressed her arguments and gave specific reasons in open court for
the sentence. As to substantive reasonableness, considering the totality of the
circumstances and the extent of the variance, a sentence of 14 months of
imprisonment was not an abuse of the district court’s discretion. Accordingly, we
AFFIRM Roberts’s sentence.
I. BACKGROUND
The present appeal concerns the second revocation of Roberts’s supervised
release, but it is necessary to start with some background about her underlying
conviction and previous revocation to place the issue on appeal into its proper
context. In 2003, Roberts pled guilty to aiding and abetting the theft of
approximately $4,880 from a bank that was insured by the Federal Deposit
Insurance Corporation, in violation of 18 U.S.C. § 2113(a). R1-30, 39. The
probation officer calculated a total offense level of 19 and a criminal history
category of II. R1-38. Roberts admitted to using crack cocaine before she was
arrested. R1-30 at 12. The district court sentenced Roberts to 27 months of
imprisonment and 3 years of supervised release. R1-38. The district court also
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ordered Roberts to pay $4,880 in restitution for her offense. Id. During Roberts’s
incarceration, she was required to participate in a drug treatment program. Id. Her
supervised release began in 2005.
In August 2006, the district court revoked Roberts’s supervised release
based on the following violations of her conditions of release: (1) possessing
and/or using a controlled substance ; (2) failing to submit required written monthly
reports; (3) failing to attend substance abuse counseling sessions; and
(4) defaulting on her restitution payments. R1-63. The district court sentenced
Roberts to 10 months of imprisonment. Id. at 2. Roberts’s supervised release
recommenced on 8 June 2007.
At issue in the present appeal is the government’s 2008 petition to revoke
Roberts’s supervised release. The government alleged that Roberts violated the
conditions of her supervised release by: (1) failing to submit a written monthly
report; (2) failing to report to her probation officer as directed; (3) associating with
persons involved in criminal activity; (4) failing to submit to urinalysis testing; and
(5) failing to participate in an approved substance abuse treatment program. R1-
80. At the revocation hearing, the district court found that Roberts committed the
first, second, fourth, and fifth violations. R2 at 25. With regard to the third
violation, the district court stated that it did not need to determine whether it was
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committed because the other violations provided sufficient grounds to revoke
Roberts’s supervised release. Id. The district court informed Roberts that she and
her attorney could address the court before it announced a sentence.
Roberts, herself, apologized to the court, and then her attorney addressed the
court. Id. at 25-26. Roberts’s attorney asserted that the first and second violations
were technical violations. Id. at 26. Roberts’s attorney argued that the court
should consider the factors in 18 U.S.C. § 3553(a) and hold the issue of
punishment in abeyance. Id. at 26-27. Roberts’s attorney requested that the court
allow Roberts to complete a 12-month residential drug treatment program before
she was sentenced. Id. at 27. Roberts’s attorney argued that if she successfully
completed the program, the court should find that she had been adequately
punished for her violations. Id. The government declined to respond. Id. at 27-28.
The court determined that Roberts had been sentenced to 10 months of
imprisonment the previous time her supervised release was revoked. Id. at 28.
The court stated that it was obvious the last sentence did not get Roberts’s
attention. The court further noted that Roberts showed “complete disregard” for
the court and the probation office by continuing to violate the conditions of her
supervised release. Id. The court opined that in determining Roberts’s sentence, a
“serious consideration” would be Roberts’s disregard for the seriousness of the
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conditions of her supervised release. Id. The court stated it would also consider
the other factors, including the seriousness of the violations. The court stated that
pursuant to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the
guideline range, which was four to ten months of imprisonment for a Grade C
violation, was advisory. Id. at 29. The court found that a sentence within the
advisory range was inadequate for the following reasons: (1) Roberts failed to
adhere to the conditions of supervised release after she had her supervised release
previously revoked; (2) she continued to engage in activity that was contrary to the
law; and (3) the previous sentence of 10 months of imprisonment did not get her
attention and had no deterrent effect on her behavior. Id.
The court sentenced Roberts to the maximum statutory punishment of 14
months of imprisonment. Id. at 30. The court also ordered Roberts to pay the
unpaid balance of her restitution order immediately. The court recommended to
the Bureau of Prisons that Roberts participate in the financial responsibility
program and a drug abuse prevention program. The court addressed Roberts and
told her to use her time in prison to get off drugs so that she would not need to
appear in court again. Id. The court stated that the sentence complied with the
factors in § 3553(a) and adequately addressed the totality of the circumstances. Id.
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at 31. The court asked if there were any objections to the sentence, and there were
none. Id.
II. DISCUSSION
Roberts argues that her sentence was procedurally unreasonable because the
district court did not state its reasons for the sentence in open court in compliance
with 18 U.S.C. § 3553(c). Roberts asserts that we cannot adequately review a
sentence outside the advisory guideline range for substantive reasonableness when
the district court fails to give its reasons for the sentence. Roberts further contends
that the sentence was procedurally unreasonable because the district court
erroneously characterized her violations as serious and contrary to the law.
Roberts also argues that the district court did not consider whether she needed
educational or vocational training or medical care, or whether the sentence
promoted respect for the law. Roberts submits that her sentence was substantively
unreasonable because her sentence did not comply with the factors in § 3553(a).
Roberts asserts that her violations were non-violent, administrative errors and her
sentence was excessive because the district court did not adequately consider
whether a lower sentence would protect society. Roberts contends that her
violations were not the most serious possible, but she received the harshest
sentence possible.
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In response, the government notes that Roberts failed to object to her
sentence and the manner in which it was imposed, but it does not specifically argue
for plain error review. The government argues that Roberts’s repeated violations,
in combination with her history of drug abuse, made her violations serious. The
government asserts that continued drug abuse and disregard of conditions of
supervised release fit a general description of activity that is contrary to the law.
The government contends that Roberts fails to show how her sentence was an
abuse of discretion or a miscarriage of justice.
After Booker, we established a two-part process for district courts to use in
calculating sentences. United States v. McBride, 511 F.3d 1293, 1297 (11th Cir.
2007) (per curiam). First, the district court must consult and correctly calculate the
range recommended by the Sentencing Guidelines. Second, the district court must
fashion a reasonable sentence by considering the factors enumerated in § 3553(a).
Id.
Sentences upon revocation of supervised release are reviewed for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106 (11th Cir. 2006)
(per curiam). The reasonableness of a sentence is reviewed under an abuse-of-
discretion standard. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008)
(citing Gall v. United States, 552 U.S. __, __, 128 S. Ct. 586, 597 (2007)). Under
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the abuse-of-discretion standard, we will only reverse if the district court made a
clear error of judgement. Id. at 1191. Although the government argues that
Roberts did not contemporaneously object in this case, we need not address
whether plain error applies because even under the abuse-of-discretion standard,
there was no reversible error.
When reviewing for procedural reasonableness, we review to ensure that the
district court (1) properly calculated the guideline range, (2) treated the guidelines
as advisory, (3) considered the § 3553(a) factors, (4) did not select a sentence
based on clearly erroneous facts, and (5) adequately explained the chosen sentence.
Gall, 552 U.S. at __, 128 S. Ct. at 597. Moreover, 18 U.S.C. § 3553(c) requires the
district court to state its reasons for the sentence in open court. Rita v. United
States, 551 U.S.__, __, 127 S. Ct. 2456, 2468 (2007). In complying with
§ 3553(c), “[t]he sentencing judge should set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Id. However, the
appropriateness of what to say depends upon the circumstances. Id. Generally,
when sentencing inside the advisory guidelines range, the district court is not
required to state explicitly that it has considered each of the § 3553(a) factors in
open court, or give a lengthy explanation for its sentence. See United States v.
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Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008). However, when a “judge imposes
a sentence outside the Guidelines, the judge will explain why he has done so.” Id.
(internal quotation marks omitted). The district court should consider the extent of
the deviation outside of the guidelines and “ensure that the justification is
sufficiently compelling to support the degree of the variance.” Id. (internal
quotation marks omitted).
We review a sentence for reasonableness in light of the factors listed in 18
U.S.C. § 3553(a). McBride, 511 F.3d at 1296-97. Those factors are the following:
(1) the need to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (2)
the need for deterrence; (3) the need to protect the public; (4) the need
to provide the most effective correctional treatment or medical care;
(5) the nature and circumstances of the offense; (6) the history and
characteristics of the defendant; (7) the Sentencing Guidelines range;
and (8) the need to avoid unwanted sentencing disparities.
Id. at 1297 n.1 (citing 18 U.S.C. § 3553(a)). When considering the substantive
reasonableness of the sentence, we take into account the totality of the
circumstances and the extent of the variance from the guideline range. Livesay,
525 F.3d at 1091. “[T]he 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 section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005) (per curiam).
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Although Roberts does not dispute the district court’s guideline calculation,
it is discussed to place Roberts’s other arguments into context. Roberts had a
criminal history category of II, and her violations were Grade C violations, which
meant the advisory guideline range was four to ten months of imprisonment.
U.S.S.G. § 7B1.4(a). Roberts’s offense of conviction was 18 U.S.C. § 2113(a),
which is a class C felony because it is punishable by up to 20 years of
imprisonment. 18 U.S.C. §§ 2113(a), 3559(a)(3). Upon revocation of supervised
release, a defendant may not be required to serve more than 2 years in prison if the
offense of conviction was a class C felony. 18 U.S.C. § 3583(e)(3). Since Roberts
served 10 months of imprisonment for her previous revocation of supervised
release, the statutory maximum term of imprisonment she could serve was 14
months of imprisonment. See United States v. Williams, 425 F.3d 987, 989 (11th
Cir. 2005) (per curiam) (holding that statutory maximums apply in the aggregate
for sentences upon revocation of supervised release).
As to Roberts’s procedural arguments, we note that the district court
explained its reasons in compliance with Gall and § 3553(c). Gall, 552 U.S. at __,
128 S. Ct. at 597; 18 U.S.C. § 3553(c). The district court explained that it was
sentencing Roberts outside the advisory guideline range because (1) she failed to
adhere to the conditions of supervised release after her supervised release had been
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previously revoked; (2) she continued to engage in activity that was contrary to the
law; and (3) the previous sentence of 10 months of imprisonment did not get her
attention and had no deterrent effect on her behavior. Furthermore, Roberts is
incorrect that these statements were mischaracterizations of the facts of the case.
Roberts was previously sentenced to 10 months of imprisonment for violating the
conditions of her supervised release, and she committed some of the same
violations again after she was re-released. Specifically, Roberts failed to submit
written monthly reports or participate in a drug treatment program. R1-63, 87. In
addition, Roberts’s failure to submit to drug tests during supervised release was an
unlawful activity. See 18 U.S.C. § 3583(g)(3). Finally, the district court was not
required to state explicitly that it had considered each of the § 3553(a) factors. See
Livesay, 525 F.3d at 1090. Accordingly, the district court provided an adequate
basis for this Court to review the reasonableness of the sentence. Thus, we find
that the sentence was procedurally reasonable.
As to substantive reasonableness, as explained above, Roberts’s supervised
release had been previously revoked and she committed some of the same
violations after she was re-released. Roberts’s repeated drug-related violations
were serious because they showed that Roberts had a lack of respect for the law
and that she was not overcoming her problems with drugs. Although Roberts
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argues that she received the maximum statutory sentence for a Class C violation, a
four-month upward variance does not appear to be an abuse of discretion because
the first sentence of 10 months of imprisonment did not have the desired deterrent
effect on Roberts. Furthermore, it appears that the driving factor was Roberts’s
recidivism, which weighed more heavily for the district court than the need to
protect the public from Roberts. R2 at 28. Consequently, considering the totality
of the circumstances, a sentence of 14 months of imprisonment was not an abuse of
discretion. Furthermore, Roberts has not carried her burden to show that the
sentence was unreasonable. Talley, 431 F.3d at 788.
III. CONCLUSION
Roberts appeals her sentence, including a four-month upward variance, upon
the revocation of her supervised release. For the reasons set out above, we
conclude that Roberts’s sentence was both procedurally and substantively
reasonable. Accordingly, we AFFIRM Roberts’s sentence.
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