[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 7, 2009
No. 09-11628 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00211-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLOYD DEWAYNE DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 7, 2009)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Floyd Dewayne Davis challenges the reasonableness of his 24-month
sentence imposed for violating conditions of his supervised release.
I.
In 2005 Davis was convicted of three counts related to his making false
statements when purchasing a firearm and was sentenced to 41 months
imprisonment followed by 3 years of supervised release. Two conditions of his
supervised release were that he must not commit another crime and must not
associate with felons or with persons engaged in criminal activity. He was released
from prison in July 2008.
In January 2009 Davis was arrested after he was found riding in a car with
three ounces of hydroponic marijuana. At the supervised release revocation
hearing, Davis and the driver of the car, Antron Evans, testified that Davis did not
know the marijuana was in the car. The district court did not believe them.
Instead, the district court credited testimony from a narcotics officer that he could
smell the marijuana from 5 feet outside the car and that this “very high quality”
hydroponic marijuana smelled so strong that one ounce of it would smell like two
pounds of average marijuana. Although the guidelines range for Davis’ violation
was 4–10 months imprisonment, the district court sentenced him to the maximum
punishment of 24 months imprisonment after finding that Davis had perjured
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himself during the hearing.
II.
We review a revocation of supervised release for abuse of discretion. United
States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). 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). Davis contends that his
sentence is both procedurally and substantively unreasonable.
A.
We begin with whether the district court committed a procedural error.
Davis argues that his sentence was procedurally unreasonable because the district
court failed to consider the § 18 U.S.C. § 3553(a) factors. That argument relies on
the premise that Davis’ release was revoked under 18 U.S.C. § 3583(e). The
government disputes that premise. It argues that Davis’ release was revoked under
18 U.S.C. § 3583(g). It further argues that because § 3583(g) provides for
mandatory revocation, the district court was not required to consider the § 3553(a)
factors. We agree.
The district court’s revocation order states that Davis’ supervised release
was being revoked because he committed a new criminal offense, and it is clear
from the record that the offense was possession of marijuana, a controlled
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substance. That violation made revocation mandatory. See § 3583(g)(1); United
States v. Brown, 224 F.3d 1237, 1242 (11th Cir. 2000) (“Although not mentioned
by the district court, [the defendant’s] revocation was mandatory because he
possessed a controlled substance. . . .”). Therefore, even assuming that the district
court did not consider the § 3553 factors, it was not required to. See Brown, 224
F.3d at 1241 (“However, when revocation of supervised release is mandatory
under 18 U.S.C. § 3583(g), the statute does not require consideration of the §
3553(a) factors.” (internal quotation marks omitted).
Davis also argues that the guidelines sentencing range was not calculated or
identified. It is true that the district court did not specifically reference the
applicable guidelines range. But the district court is not held to a particularly
exacting standard on this issue. “[B]ecause the Guidelines have always been
advisory for sentences imposed upon revocation of supervised release, it is
sufficient that there be some indication that the district court was aware of and
considered” the guidelines range. United States v. Campbell, 473 F.3d 1345, 1349
(11th Cir. 2007) (internal citation and quotation marks omitted). Here there was.
It is undisputed that before the revocation hearing the United States
Probation Office calculated the guidelines sentencing range as part of the petition
for warrant or summons. It is undisputed that the guidelines range was 4–10
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months. It is undisputed that both parties and the district court had a copy of the
sentencing range calculation at the sentencing hearing. Finally, in making its
sentencing determination, the court stated that it found “that a high end of — the
guidelines are way too low, in my judgment in this case. I find that it’s reasonable
to sentence [Davis] to the full 24 months.” The evidence is compelling that the
district court was aware of and had considered the guidelines sentencing range but
found it too lenient.
Davis’s final two arguments on this issue are also meritless. First, he argues
that the district court failed to treat the sentencing guidelines as advisory. That
argument is inconsistent with the fact that the district court sentenced Davis above
the guidelines range. Second, he argues that the sentence imposed was based on
clearly erroneous facts. The basis for that argument largely is his and Evans’
testimony that they could not smell marijuana in the car and that Davis did even
not know there was marijuana in the car. But the district court did not believe him
or Evans. It believed the narcotics officer’s testimony that the odor of the
marijuana was so strong that he could smell it from outside the car and five feet
away. The marijuana was sitting right next to Davis in the center console of the
car. The district court’s credibility determinations were not clearly erroneous and
support its finding that Davis knew there was marijuana in the car and its
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conclusion that he was in constructive possession of it.
B.
Davis’ contention that his sentence is substantively unreasonable also fails.
He argues that the 24-month sentence is not justified given the “dubious nature” of
the possession charge and the fact that his guidelines range was 4–10 months. The
charge is “dubious,” according to Davis, because both he and Evans testified that
they did not smell marijuana and testified that Davis did not know it was in the car.
As we have already discussed, the district court did not believe them and instead
believed the officer. In fact, the district court sentenced Davis to the statutory
maximum in part because it found that Davis had perjured himself before the court.
The conditions of Davis’ supervised release required him not to commit any
crimes and not to associate with felons. He was caught riding in a car with a
convicted felon and with some “very high quality” marijuana. Then Davis came to
court and lied. In view of Davis’ conduct, it was not unreasonable for the court to
sentence him to 24-months imprisonment. See United States. v. Silva, 443 F.3d
795, 796–99 (11th Cir. 2006); United States v. Hofierka, 83 F.3d 357, 359–62
(11th Cir. 1996).
AFFIRMED.
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