[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11766 ELEVENTH CIRCUIT
NOVEMBER 4, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 97-00043-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENYA PARKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 4, 2009)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Kenya Parker appeals his 30-month sentence imposed upon revocation of his
supervised release. After review, we affirm.
I. BACKGROUND
In 1997, Parker was convicted of conspiracy with intent to distribute cocaine
and cocaine base. The district court imposed a 120-month sentence, followed by
five years of supervised release. Parker began his supervised release on March 16,
2006.
On August 29, 2007, Parker’s probation officer petitioned for revocation of
his supervised release, alleging that Parker had committed four violations: (1) a
positive drug test for marijuana use in June 2007; (2) refusal to appear for a drug
test on August 1, 2007; (3) refusal to appear for a rescheduled drug test on August
7, 2007; and (4) failure to report to his probation officer, as instructed, on August
20, 2007.
According to a supplemental petition, Parker did not report to his probation
officer, as required, between August 2007 and August 10, 2008, when Parker was
arrested on drug charges. Parker’s failure to report and his drug arrest were the
bases for two additional violations of his supervised release conditions.
The supplemental petition also alleged that Parker was arrested on August
10, 2008 while being served with the district court’s warrant for the first four
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violations of supervised release. Deputies in Escambia County, Florida conducted
surveillance on a house where Parker was believed to be and followed Parker in his
car when he drove away from the house. As the officers followed, they saw Parker
throwing “what appeared to be powder cocaine out of the window,” and the bags
hit the officers’ vehicle. After Parker was pulled over and arrested, officers found
“several empty bags similar to the bags Parker threw from the vehicle,” as well as
cocaine residue and three Xanax pills. Officers also recovered the bags Parker
threw from the vehicle, which contained traces of cocaine. Parker later admitted
throwing the cocaine bags out the window.
Parker pled nolo contendre in Florida state court to possession of cocaine,
possession of a controlled substance without a prescription and destroying
evidence. Parker was sentenced to three six-month concurrent sentences. The
government filed a copy of the state court judgment prior to the revocation hearing.
The probation officer prepared a “dispositional report,” which is not part of
the record on appeal. However, the parties do not dispute that the dispositional
report provided that: (1) Parker faced a statutory maximum sentence of five years’
imprisonment; (2) Parker’s state court drug convictions were classified as Grade B
violations under U.S.S.G. § 7B1.1(a)(2); (3) Parker’s other violations were
classified as Grade C violations under U.S.S.G. § 7B1.1(a)(3); and (4) under
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U.S.S.G. § 7B1.4(a), the advisory guidelines range was 8 to 14 months’
imprisonment. Parker did not object to the dispositional report.
At the revocation hearing, Parker did not contest the allegations in the
petition for revocation or supplemental petition for revocation, and the parties
agreed that the probation officer’s guidelines calculations were accurate. Parker
sought a sentence within the advisory guidelines range. The government expressed
doubt about whether a sentence within the guidelines range would be appropriate
given that Parker failed to report for over a year and appeared to have been dealing
drugs when he was arrested in August 2008.
The district court imposed a 30-month sentence with no supervised release.
The district court stated that it had considered the parties’ arguments, the
information in the dispositional report, the advisory guidelines range and the 18
U.S.C. § 3553(a) factors. The district court specifically cited Parker’s absconding
while on supervised release and agreed with the government that Parker was
dealing drugs at the time of his August 2008 arrest. The district court stated that
the state charge of simple possession was not “representative of the actual facts and
circumstances of [Parker’s] arrest.” Parker objected to the district court’s finding
that he was dealing drugs at the time of his arrest. In response, the district court
stated:
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Well, I would be offended enough simply by the fact that he
absconded, and not just took off but has to wait to get arrested again
for drugs. No matter how you might describe that, finding him
running down the highway, throwing out individual packets of
cocaine seems to me to be somewhat indicative of his conduct. And,
of course, he was absconding at the time . . . .
Parker filed this appeal.
II. DISCUSSION
Parker argues that his 30-month sentence is procedurally unreasonable
because the district court relied upon a finding that he was dealing drugs at the
time of his August 2008 arrest, which was not supported by sufficient evidence.
“Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of
supervised release, revoke the term of supervised release and impose a term of
imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”
United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).1 When a
defendant objects to a fact finding used to determine his sentence, the government
bears the burden to establish the disputed fact by a preponderance of the evidence.
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The relevant § 3553(a) factors that the court must consider are: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need to
afford adequate deterrence; (3) the need to protect the public; (4) the need to provide the
defendant with educational or vocational training or medical care; (5) the Sentencing Guidelines
range and pertinent policy statements of the Sentencing Commission; (6) the need to avoid
unwanted sentencing disparities; and (7) the need to provide restitution to victims. See 18 U.S.C.
§ 3583(e)(cross referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7)).
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See United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005) (addressing
drug quantity finding used to calculate advisory guidelines range). “The
preponderance of evidence is a relaxed evidentiary standard, however, it does not
grant the court a license to sentence a defendant in the absence of sufficient
evidence when that defendant has properly objected to a factual conclusion.” Id.2
Parker has not shown that the district court committed clear error in its fact
finding. The nature and circumstances of Parker’s August 2008 arrest were proper
factors for the district court to consider in sentencing Parker. See 18 U.S.C.
§ 3553(a)(1). Parker did not dispute any of the facts surrounding his August 2008
arrest contained in the probation officer’s dispositional report. Parker fled from
police, threw small plastic bags containing cocaine residue out of his car window
as he fled and had both three Xanax pills and additional plastic bags with cocaine
residue in his car when he finally was apprehended. Parker argues that these facts
support a finding that he possessed cocaine for his personal use. But, that is not
the only way to interpret that evidence. The district court’s finding that Parker was
2
We review a sentence imposed upon revocation of supervised release for
reasonableness. Sweeting, 437 F.3d at 1106-07. Our reasonableness review applies an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007). We
review for clear error a district court’s fact findings at sentencing. United States v. Crawford,
407 F.3d 1174, 1177 (11th Cir. 2005). “We cannot find clear error unless we are left with a
definite and firm conviction that a mistake has been committed.” Id. (quotation marks omitted).
“Where two permissible views of the evidence exist, the factfinder’s choice between them
cannot be clearly erroneous.” United States v. Holloway, 74 F.3d 249, 252 (11th Cir. 1996)
(quotation marks omitted).
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dealing drugs is also a plausible inference and conclusion that can be drawn from
the undisputed evidence. This is especially so because Parker had not just one or
two bags with cocaine residue, but several bags he threw out and several bags in
the car, along with three Xanax pills.
Accordingly, we cannot say the district court clearly erred or that the district
court’s 30-month sentence is procedurally unreasonable.3
AFFIRMED.
3
Parker does not argue that his 30-month sentence is substantively unreasonable.
However, he does argue that the district court’s allegedly erroneous fact finding was the “driving
force” behind the district court’s decision to exceed the advisory guidelines range. We disagree.
Parker’s 2008 drug arrest was only one of six violations offered as grounds for the revocation.
Furthermore, the district court explicitly stated it had considered all the § 3553(a) factors and
emphasized Parker’s refusal to report to his probation officer for over a year in imposing the 30-
month sentence.
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