[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
OCT 9, 2008
No. 08-10736
THOMAS K. KAHN
Non-Argument Calendar
CLERK
--------------------------------------------
D.C. Docket No. 92-00049-CR-1-JOF-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY BERNARD BUSH,
Defendant-Appellant.
---------------------------------------------
Appeal from the United States District Court
for the Northern District of Georgia
-----------------------------------------------
(October 9, 2008)
Before EDMONDSON, Chief Judge, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-Appellant Jeffrey Bernard Bush appeals the 24-month-within-
guidelines-range sentence imposed for violation of his supervised release. No
reversible error has been shown; we affirm.
The petition for revocation listed three supervised release violations: (1) an
arrest on 13 October 2005 for possession of marijuana with intent to distribute; (2)
false statements in his monthly report about his ownership and operation of a car
and a false statement about his address; and (3) an arrest on 13 November 2005 for
possession of marijuana (to which Defendant entered a guilty plea) and improper
lane change. Defendant admitted to violations two and three; violation one was
denied and that violation was dismissed. Defendant accepts that violations two
and three present grounds for the revocation of his supervised release; he offers
explanation in mitigation of these violations.
At the revocation hearing, the district court heard evidence and argument in
mitigation of Defendant’s supervised release violations. About Defendant’s false
statements on his ownership and operation of a car, Defendant explained that his
uncle, who was an amputee and could not register a car in his name, had asked him
to purchase the car so that Defendant and others could drive the uncle from time to
time. Because Defendant did not consider the car his own, he failed to disclose
ownership. Unexplained was his failure to disclose his use of the car. About the
2
false statement of his address given to the police, Defendant explained that the
address he gave -- that of his grandmother with whom he had lived for many years
and from which he moved only recently -- was an unintentional misstatement; the
correct address had been provided by Defendant to his probation officer.
In mitigation of the marijuana arrest set out in violation 3, Defendant
explained that he pleaded guilty to that offense in a desperate effort to be
transferred out the Clayton County jail where he was being held while the case
was pending. According to Defendant, one of the guards sexually assaulted him
and a number of other prisoners. Defendant and others made reports of the assault
and charges were pending against the guard. That Defendant had made sexual
abuse charges against a guard was known by jail staff; Defendant felt threatened
and pleaded guilty to the marijuana offense out of fear. Defendant proffered the
testimony of others in support of his claim that the marijuana found in the car he
was driving was not Defendant’s.
In the light of this mitigation evidence, Defendant argues that the 24-month
sentence imposed -- albeit concededly within the guideline range of 21 to 27
months -- was unreasonable and significantly more than was necessary to secure
the goals of the sentencing statute.
3
Pursuant to 18 U.S.C. § 3583(e), a district court may revoke supervised
release and impose a term of imprisonment after considering certain 18 U.S.C. §
3553(a) factors. We review a sentence imposed upon revocation for
reasonableness in the light of the § 3553(a) factors cited in § 3583(e). See United
States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). Appellate review of
the substantive reasonableness of a sentence -- whether inside or outside the
guidelines range -- is under an abuse-of-discretion standard. Gall v. United States,
128 S.Ct. 586, 597 (2007). This review is deferential; and Defendant -- as the
party challenging the reasonableness of the sentence -- bears the burden of
establishing that the sentence is unreasonable in the light of both the record and
the section 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
No requirement exists that the district court state on the record that it has
considered each applicable section 3553(a) factor, id. at 786; when a sentencing
court fails to mention the section 3553(a) factors, we look to the record to see if
the district court did, in fact, consider the relevant factors. See United States v.
Dorman, 488 F.3d 936, 944 (11th Cir.), cert. denied, 128 S.Ct. 427 (2007).
The record makes clear that the district court considered the mitigation
evidence and the section 3553(a) factors in crafting the sentence imposed. The
4
district court was unpersuaded that Defendant’s failure to report his car ownership
should be excused. And while the district court observed that the abuse Defendant
suffered in the Clayton County jail should not have happened in a civilized
society, the court also commented on its obligation to protect the public from
lawbreakers, the defendant’s criminal history, the defendant’s new conviction for a
drug crime while serving the supervised release portion of a drug conviction
sentence, and the mercy extended by the court when revocation proceedings had
been brought earlier against Defendant. Defendant takes issue with the weight
accorded the different section 3553(a) factors by the district court; but we will
reverse only if the final sentence imposed lies outside the range of reasonable
sentences. See United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir.
2007). Even if we were to balance the mitigation evidence differently, we cannot
say the 24-month sentence imposed reflects a “clear error of judgment in weighing
the § 3553(a) factors;” it is not “outside the range of reasonable sentences dictated
by the facts of the case.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir.
2006), cert. dismissed, 127 S.Ct. 3040 (2007), abrogated on other grounds,
Kimbrough v. United States, 128 S.Ct. 558 (2007). Defendant fails to show
substantive unreasonableness.
AFFIRMED.
5