[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 3, 2007
No. 06-12578 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00041-CR-02-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ANTHONY CAMPBELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 3, 2007)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
In United States v. Jones,1 we held that after imposing sentence, the district
court should elicit fully-articulated objections to the court’s findings of fact,
conclusions of law, and the manner in which the sentence was imposed. The issue
presented here is whether the Jones rule applies to supervised release revocation
proceedings. We hold that it does.
I. BACKGROUND
In 1998, following his guilty plea for possession of stolen mail, Mark
Anthony Campbell was sentenced to 33 months imprisonment and 3 years of
supervised release. In December 2000, Campbell was released from prison and
began serving his supervised release term. In April 2001, the United States
Probation Office issued an arrest warrant for Campbell based on a petition to
revoke his supervised release, alleging that he had violated his supervised release
by, inter alia, testing positive for cocaine and committing a state theft offense. At
the time of the revocation petition, Campbell was already in state custody on the
state theft charge, for which he was convicted and sentenced to five years in state
prison. During this time, the Government took no action on the revocation
petition.
Upon Campbell’s release from state prison on March 7, 2006, he was taken
1
899 F.2d 1097 (11th Cir. 1990), overruled on other grounds by United States v. Morrill,
984 F.2d 1136 (11th Cir. 1993).
2
into federal custody based on the petition. During the revocation hearing,
Campbell admitted violating his supervised release, but argued that revocation was
unwarranted. Quoting the factors set forth in 18 U.S.C. § 3553(a), Campbell
argued that although the Sentencing Guidelines (“Guidelines”) permitted a
sentence of at least 21 months imprisonment, the 5-year delay between the
violations and the revocation hearing warranted leniency, and his substantial
rehabilitative efforts (for example, completing a drug rehabilitation program and a
business course at a technical college while in state prison) had mitigated his past
transgressions. The Government countered that a sentence of 24 months
imprisonment was appropriate because it was within the Guidelines range and
would enable Campbell to continue his rehabilitation.
The district court discussed Campbell’s pre-2001 criminal history (based on
conduct occurring before his 5 years in state prison) and found that the § 3553(a)
factor regarding the protection of society warranted a sentence of 24 months
imprisonment. After imposing the sentence, the district court informed Campbell
of his right to appeal, and asked “Is there anything further?” The Government
responded that it had nothing further, while defense counsel requested that the
court recommend a drug treatment program.
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II. DISCUSSION
On appeal, Campbell argues that the district court: (1) failed to either
consult the Guidelines or to properly calculate Campbell’s advisory Guidelines
range; (2) imposed an unreasonable sentence in violation of United States v.
Booker, 543 U.S. 220, 262, 125 S.Ct. 738, 766 (2005); and (3) failed to elicit
objections after imposing sentence as required by United States v. Jones, 899 F.2d
1097 (11th Cir. 1990), overruled on other grounds by United States v. Morrill, 984
F.2d 1136 (11th Cir. 1993). Because the existence of a Jones violation impacts
whether and how we review Campbell’s other grounds for appeal, we address this
issue first.
A. The Objection-Elicitation Requirement of Jones
Campbell argues that the district court failed to elicit objections after
imposing sentence as required by Jones and that this court should vacate and
remand for resentencing. The Government argues that Jones is inapplicable to
supervised release revocation hearings, the district court nonetheless complied with
Jones, and even if it did not, the record is sufficient to enable appellate review of
Campbell’s other grounds for appeal.
In Jones, this court held that after imposing a sentence, the district court
must give the parties an opportunity to object to the court’s ultimate findings of
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fact, conclusions of law, and the manner in which the sentence is pronounced, and
must elicit a full articulation of the grounds upon which any objection is based.
Jones, 899 F.2d at 1102. Under this rule, when a district court fails to elicit
objections after imposing a sentence, we normally vacate the sentence and remand
to the district court to give the parties an opportunity to present their objections.
Id. at 1103. A remand is unnecessary, however, when the record on appeal is
sufficient to enable review. United States v. Cruz, 946 F.2d 122, 124 n.1 (11th Cir.
1991).
This court has applied the Jones rule to a probation revocation proceeding.
United States v. Milano, 32 F.3d 1499, 1503 (11th Cir. 1994) (holding that there
was no Jones violation in a probation revocation hearing where the district court
elicited objections), superseded on other grounds by statute, Violent Crime Control
and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat 1796, as
recognized in United States v. Cook, 291 F.3d 1297, 1300 n.3 (11th Cir. 2002).
And this court has held that probation revocation proceedings are “conceptually the
same” as supervised release revocation proceedings. United States v. Frazier, 26
F.3d 110, 113 (11th Cir. 1994); see also United States v. Mitsven, 452 F.3d 1264,
1266 n.1 (11th Cir. 2006) (noting that the analysis of the revocation proceedings
relating to probation is “essentially the same” as the analysis of the revocation
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proceedings relating to supervised release). Accordingly, we hold that the
objection-elicitation requirement of Jones is applicable to supervised release
revocation proceedings.
In applying the Jones rule, this court has held that when the district court
merely asks if there is “anything further?” or “anything else?” and neither party
responds with objections, then the court has failed to elicit fully articulated
objections and has therefore violated Jones. United States v. Holloway, 971 F.2d
675, 681 (11th Cir. 1992); United States v. Snyder, 941 F.2d 1427, 1428 (11th Cir.
1991); cf. United States v. Ramsdale, 179 F.3d 1320, 1324 (11th Cir. 1999)
(holding that the district court’s inquiry of “anything else?” satisfied Jones where
defense counsel stated an objection in response, thereby demonstrating that he
understood the court to be eliciting objections). Here, at the conclusion of
Campbell’s sentencing hearing, the district court informed Campbell of his right to
appeal and asked, “Is there anything further?” In response, neither side raised a
“fully articulated objection.” Defense counsel requested the court to recommend
drug treatment and the Government said that it had nothing further. Based on this
exchange, there is no indication that defense counsel understood the court to be
eliciting objections. See Snyder, 941 F.2d at 1428. Therefore, we hold that the
district court failed to comply with the procedure announced in Jones. Moreover,
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as discussed below, we conclude that the record is insufficient to allow this court to
meaningfully review Campbell’s remaining grounds for appeal.
B. Calculation and Consideration of the Guidelines Range
Campbell next argues that the district court failed to consider the Guidelines
and his advisory sentencing range under the Guidelines. The Government counters
that the district court did consider the Guidelines, and that, in any event, Campbell
waived this argument on appeal by failing to raise it during the revocation hearing.
Because we conclude that the district court violated Jones by failing to elicit
objections after imposing the sentence, we conclude that Campbell has not waived
this argument, and we consider de novo the legality of his sentence. United States
v. Aimufa, 122 F.3d 1376, 1378 (11th Cir. 1997).
In United States v. White, 416 F.3d 1313, 1318 (11th Cir. 2005), this court
stated that upon determining that a defendant violated a condition of supervised
release, the district court may revoke the term of supervision and impose a term of
imprisonment after considering various factors set out in 18 U.S.C. § 3553(a). Id.
(citing 18 U.S.C. § 3583(e)(3)). “One of the factors a court must consider . . . is
. . . the sentencing range established [by] . . . the applicable guidelines or policy
statements issued by the Sentencing Commission.” White, 416 F.3d at 1318
(citing18 U.S.C. § 3553(a)(4)) (emphasis added). For sentences imposed upon
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revocation of supervised release, the recommended sentencing range is based on
the classification of the conduct that resulted in the revocation and the criminal
history category applicable at the time the defendant originally was sentenced to
the term of supervision. U.S.S.G. §§ 7B1.1, 7B1.4. But because the Guidelines
have always been advisory for sentences imposed upon revocation of supervised
release, White, 416 F.3d at 1318, it is sufficient that there be “some indication” that
“the district court was aware of and considered” the Guidelines, United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000), which requires the court to
consider “the sentencing range established” under the Guidelines. White, 416 F.3d
at 1318 (emphasis added).
Here, the district court never explicitly mentioned Campbell’s advisory
Guidelines range during the revocation hearing.2 Indeed, the district court never
said the word “Guidelines” during the entire hearing. Moreover, although the
advisory range is based on, inter alia, the classification of the revocation-
producing conduct, see U.S.S.G. § 7B1.1, the district court never mentioned the
criminal classification of the crime for which Campbell’s supervised release was
revoked. Hence, we cannot determine from the record whether the district court
2
Although defense counsel briefly mentioned that Campbell’s Guidelines range was “21
months and up,” and the Government stated that it recommended a sentence of “24 months
within the guideline range,” the district court itself never made any on-the-record conclusion
regarding the Guidelines or the applicable sentencing range.
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considered the “sentencing range” established by the Guidelines or the policy
statements issued by the Sentencing Commission. See White, 416 F.3d at 1318.
C. Reasonableness of the Sentence
Campbell also argues that because the district court never made an on-the-
record consideration of his Guidelines range, this court cannot adequately
determine whether the sentence is reasonable under Booker. He further contends
that even if the record enables this court to review the reasonableness of the
sentence, the sentence is not reasonable in light of the factors set forth in § 3553(a).
As discussed in White, neither this court nor the Supreme Court has
determined in a published opinion that Booker’s reasonableness standard applies to
sentences imposed upon revocation of supervised release. White, 416 F.3d at
1319. But even assuming, without deciding, that Booker’s reasonableness standard
is applicable, we do not reach the issue of whether Campbell’s total sentence is
reasonable because the district court failed to make an on-the-record consideration
of the Guidelines range. “Before we conduct a reasonableness review of the
ultimate sentence imposed, we first determine whether the district court correctly
interpreted and applied the appropriate advisory Guidelines range.” United States
v. Martin, 455 F.3d 1227, 1235 (11th Cir. 2006) (citations omitted); see also
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). Here, however,
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we cannot determine whether the district court “correctly interpreted and applied
the Guidelines to calculate the appropriate advisory Guidelines range” because, as
discussed above, the district court never stated the Guidelines range and never even
mentioned the word “Guidelines.” Accordingly, we do not reach the issue of
reasonableness.
III. CONCLUSION
For the foregoing reasons, we VACATE Campbell’s sentence and
REMAND to the district court for resentencing in accordance with Jones and
White.
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