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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10854
Non-Argument Calendar
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D.C. Docket No. 3:00-cr-00040-WHA-TFM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REID KELSEY BLACK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(August 7, 2012)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
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Reid Kelsey Black appeals the district court’s revocation of his supervised
release and imposition of a 24-month prison sentence, pursuant to 18 U.S.C.
§ 3583(e)(3). After review, we affirm.
I. BACKGROUND
A. Conviction and Sentence
In 2000, Black pled guilty to possession with intent to distribute
methamphetamine (Count 1) and to brandishing a firearm (Count 2). At
sentencing, the district court granted the government’s motion for a downward
departure based on Black’s substantial assistance. As a result of the downward
departure, Black received a 60-month sentence on Count 1, which represented a
91-month reduction from his guidelines range of 151 to 188 months.
As a result of the mandatory, consecutive sentence in 8 U.S.C.
§ 924(c)(1)(A)(ii), the district court imposed a consecutive 84-month sentence on
Count 2. The district court imposed a total 144-month sentence followed by five
years’ supervised release. As conditions of his supervised release, Black was
required, inter alia, to “work regularly at a lawful occupation unless excused by
the probation officer for schooling, training, or other acceptable reasons” and to
“notify the probation officer at least ten days prior to any change in residence or
employment.”
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B. Petition for Revocation of Supervised Release
After serving his 144-month sentence, Black began his term of supervised
release on March 17, 2011. On January 11, 2012, Black’s probation officer filed a
petition alleging that Black had violated the conditions of his supervised release
by: (1) failing to work regularly; and (2) failing to provide notification to the
probation officer prior to changing his employment status.1 According to the
probation officer’s Supervised Release Violation Report (the “Report”), Black had
held jobs with four different employers since beginning supervised release and had
quit each job. At the time the Report was filed, Black was unemployed.
C. Testimony at the Revocation Hearing
At a February 2, 2012 revocation hearing, the district court found that
Black’s alleged Grade C violations and his criminal history category of II yielded
a guidelines range of four to ten months and that the statutory maximum was five
years’ imprisonment. Black pled not guilty to the above two violations.
Probation Officer John Meredith testified that Black obtained his first job at
West Point Foundry, where he worked as a painter from May 23 to August 19,
2011, less than three months. Black did not notify Meredith before he quit the
West Point Foundry job, but later told Meredith he left because of insufficient pay,
1
The government later dismissed a third alleged violation of failing to pay restitution.
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inconvenient hours and the danger from chemical exposure. When Meredith told
Black to try to get his job back, Black said he had a second job at Autosport.
Meredith urged Black to return to West Point Foundry because it was steady work
and because Meredith had been informed Black was a good worker.
Against Meredith’s advice, Black began working at Autosport on September
12 and then quit on September 29, 2011, less than three weeks later. Again, Black
did not notify Meredith in advance. Black’s reason for quitting was the
uncertainty of pay due to working on commission.
On November 14, 2011, Black began working at Opelika Metal Fabricators.
Black obtained this job through an employment agency. Black quit on December
5, 2011, less than a month later. Black did not tell Meredith before he quit this
job. Black told Meredith he left because he did not like the job and the wages
were low. Black told the employment agency he left because he did not like the
manner in which the manager spoke to him.
On December 8, 2011, Black began work at Daewon, a car manufacturing
facility, and quit on December 24, 2011, less than three weeks later. Black did not
inform Meredith before he quit this job. Meredith found out that Black was not
working through another probation officer. Black told Meredith he quit because
“he refused to work with illegal Mexicans doing slave labor in an Asian
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sweatshop.” When Meredith reminded Black that steady, lawful employment was
a condition of his release, Black shouted that Meredith “better not threaten [him]
about getting a job,” and that the release conditions were “bullshit.” Black also
said that “if the government could afford to keep him locked up, then take him to
jail.” Meredith testified that he spoke with the employment agency through which
Black gained the Daewon job and learned that Black had given them a two-week
notice that he intended to quit.
On January 5, 2012, Meredith met with Black in person to discuss the
violations. Meredith told Black that, rather than pursue revocation, he would try a
“graduated sanctions” option that would place Black in a federal halfway house
for six months. Black responded that he would not go to a halfway house. Black
again stated that if the government could afford to house him, it should take him to
jail. After the meeting concluded, Meredith escorted Black out of his office and
into the lobby, where Black’s parents waited. Meredith heard Black tell his
parents that Meredith was “an asshole.”
Meredith recommended that the district court revoke Black’s supervised
release and sentence him to serve an additional 24 months in prison with no
supervised release to follow. Meredith explained that he did not believe Black
was amenable to supervision due to his conduct while on supervised release and
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his poor record with the Bureau of Prisons (“BOP”). While in BOP custody,
Black was cited for, or disciplined for, threatening bodily harm, refusing to work,
being absent from assignment, assault without serious injury and being insolent to
a staff member. Meredith further testified that his contact with Black had become
increasingly confrontational. Black’s mother told Meredith that Black had no
respect for law enforcement or any authority figure. Meredith recommended a 24-
month sentence because of Black’s refusal to be placed in a halfway house, which
demonstrated he was not amenable to supervision and because Black received a
downward departure at sentencing.
Dennis Anglin, Black’s supervisor at Daewon, testified that Black worked
on a production machine, which required standing, bending and lifting and that
Black was a good employee. Black gave notice that he would be leaving the job
due to lower back problems.
Black’s mother, Murriel Black, testified that she and her husband were in
poor health and that Black helped them around their farm. Mrs. Black also
confirmed that Black has a back problem and explained that Black used a tractor
to lift things when working on their farm.
Black testified that he was a trained and certified automotive collision repair
specialist. Black applied to all the body shops in his area, but could not obtain a
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position with any of them. Black was promoted to supervisor while at West Point
Foundry, but left because of environmental dangers, including chemical exposure,
that higher management refused to address. Black called to tell Meredith he was
leaving West Point Foundry, but Meredith never called him back.
Black said he worked at Autosport as a subcontractor and left because they
would not offer him a full-time position, which his supervised release required.
Black then worked for Opelika Manufacturing. Black reported to the employment
agency that he was being exposed to chemicals there, and the agency told him not
to go back. Three days later, Black began working at Daewon, but quit because
the work was too physically demanding for his back problems. Black was
diagnosed by BOP doctors with degenerative disc disease and two bulging and
misaligned vertebrae. Black said that he had received an offer to begin working at
a collision center on February 6, 2012, four days after the revocation hearing.
Black said that Meredith’s instructions to return to his job at Daewon
frustrated him because he felt that Meredith would be happy only if Black worked
at a job that caused him physical pain. Black explained that he becomes frustrated
when someone is condescending and difficult “because they feel like they’re in a
position where they can impose their will and they don’t have to give.” Black felt
that Meredith did not want Black to better himself or rebuild his life financially
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and just wanted Black to get a temporary job. Black admitted that he has “some
anger issues sometimes” and that he was combative with Meredith at the January 5
meeting because he felt Meredith was ignoring Black’s best interests and trying to
hold Black down. When Black was asked whether he would do something
Meredith told him to do even though Black did not want to do it, Black responded,
“I’m going to do the right thing. I’m going to -- I mean if he’s being unreasonable
how can I? But I mean I -- I try to do everything that I’m expected to do.”
D. District Court’s Ruling
The district court found Black guilty of both violations and revoked his
supervised release. The district court further found that: (1) Black quit four jobs;
(2) the time between each of the jobs did not constitute engagement in a lawful
occupation; (3) Black did not notify Meredith before quitting any of the four jobs;
(3) Meredith excused Black for not notifying him before quitting the first three
jobs; (4) although Meredith warned Black that he needed to advise his probation
officer, Black left his fourth job at Daewon without notifying Meredith ten days
before the change; and (5) Meredith “had to find out about it from another source
after [Black] had already quit.” The district court rejected Black’s contention that
he complied with his condition to notify Meredith by notifying the employment
agency.
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With respect to the sentence, Black asked for a term of four months of home
confinement, where he paid for the confinement and attended anger management
classes. The government requested a 24-month sentence.
The district court stated that Black had proven that he was unwilling to be
supervised and observed that Black’s violations were not technical or inadvertent,
but intentional violations of conditions imposed by the court and that Black “felt
that [he was] the one to decide what was reasonable and what [he] should do and
what [he] shouldn’t do, not the probation officer.” The district court stated to
Black:
The Court didn’t impose on you conditions that you could decide
on and come in after you had been charged with violations and after
blowing up at your probation officer at least twice and then make
suggestions of other things that you could do. The Court ordered you
to do that while you were on supervised release. You flagrantly
disobeyed that.
One of the things that the Court has to look at is how what
happens to you affects other people who are on supervised release. And
if other people can act as you did in this case, come out from under it
with simply going home and getting a job and going on about it, it
destroys the whole authority of supervised release.
The district court noted that, although the advisory range was four to ten months,
the sentence could be increased because Black had received a downward departure
at his original sentencing. The district court said it was satisfied the probation
office had “done the best they could with [Black] and [could not] do any more.”
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The district court stated it had considered the factors in 18 U.S.C. § 3553,
“particularly the necessity to promote respect for the conditions of supervision
ordered by the Court, to reflect the seriousness of the defendant’s conduct, and to
provide just punishment, to set an example for others.” The district court imposed
a 24-month sentence, without further supervised release. Black appealed.
II. DISCUSSION
A. Sufficiency of the Evidence
A district court may revoke a defendant’s term of supervised release if the
court finds by a preponderance of the evidence that the defendant violated a
condition of his supervised release. 18 U.S.C. § 3583(e)(3); U.S.S.G.
§ 7B1.3(a)(2) (providing that district court may revoke supervised release if court
finds defendant committed a Grade C violation); see also United States v. Trainor,
376 F.3d 1325, 1331 (11th Cir. 2004). We review for abuse of discretion a district
court’s finding that a defendant violated a term of supervised release. United
States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994). Furthermore, we are bound
by the district court’s findings of fact unless they are clearly erroneous. United
States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).
Here the district court did not abuse its discretion in finding by a
preponderance of the evidence that Black had violated the conditions of his
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supervised release. Probation Officer Meredith testified that he repeatedly warned
Black that he needed to maintain employment as a condition of his supervised
release. Nonetheless, during almost eight months of supervision (May 23, 2011 to
January 11, 2012), Black quit four jobs and worked a total of only about 20 weeks.
Moreover, Black repeatedly quit jobs without giving Meredith the required ten
days’ advance notice, even though Black was able to give two weeks’ notice to his
employment agency. At the revocation hearing, Black admitted that he was
unemployed for periods of up to six weeks and that he did not try to notify
Meredith before quitting three of his four jobs.
This evidence is sufficient to support a finding by a preponderance of the
evidence that Black failed to work regularly unless excused by his probation
officer and failed to notify his probation officer ten days before changing his
employment. Further, the district court’s fact finding that Black’s violations were
intentional, rather than inadvertent, is not clearly erroneous. Accordingly, the
district court did not abuse its discretion when it revoked Black’s supervised
release.
B. Reasonableness of Sentence
Black contends his 24-month sentence is substantively unreasonable. If the
district court finds that the defendant violated a condition of supervised release,
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the court may revoke the term of supervised release and impose a prison term after
considering certain factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C.
§ 3583(e)(3).2 The district court must also consider the policy statements in
Chapter 7 of the Sentencing Guidelines, one of which, U.S.S.G. § 7B1.4, provides
recommended, non-binding ranges of imprisonment. United States v. Silva, 443
F.3d 795, 799 (11th Cir. 2006); U.S.S.G. § 7B1.4. In addition, the commentary to
U.S.S.G. § 7B1.4 states that “an upward departure may be warranted” if the
defendant’s “original sentence was the result of a downward departure (e.g., as a
reward for substantial assistance).” U.S.S.G. § 7B1.4, cmt. n.4.
Here, the parties do not dispute that, with a Grade C violation and a criminal
history category of II, Black’s recommended guidelines range under advisory
Chapter 7 was four to ten months’ imprisonment. See U.S.S.G. § 7B1.4(a).
Because Black was on supervised release for a Class A felony, the statutory
maximum sentence upon revocation was five years. See 18 U.S.C. § 3583(e)(3).3
2
Specifically, in a revocation proceeding, the relevant factors the district court must
consider are: (1) the nature and circumstances of the offense and the history and characteristics of
the defendant; (2) the need for the sentence imposed to afford adequate deterrence, protect the
public and provide the defendant with needed educational or vocational training or medical care;
(3) the Sentencing Guidelines range and pertinent policy statements of the Sentencing
Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide
restitution. See 18 U.S.C. § 3583(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),
(a)(4)-(7)).
3
Black does not argue that the district court committed any procedural error at the
revocation hearing.
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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). Our reasonableness review applies the deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 41, 46, 128 S. Ct. 586, 591, 594
(2007). The party challenging the sentence has the burden to show it is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). If the district court decides to impose
an upward variance, “it must ‘consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree of the variance.’”
United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quoting Gall,
552 U.S. at 50, 128 S. Ct. at 597). However, we will vacate such a sentence “only
if we are left with the definite and firm conviction that the district court committed
a clear error of judgment in weighing the § 3553(a) factors by arriving at a
sentence that lies outside the range of reasonable sentences dictated by the facts of
the case.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (internal
quotation marks omitted).
Black has not shown that his 24-month sentence was substantively
unreasonable. The district court found that Black’s violations were intentional and
flagrant and constituted a refusal to accept the authority of the court and the
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probation officer. As such, the district court believed that Black was not willing to
be supervised. This view is supported by the evidence. When Meredith met with
Black to discuss Black’s repeated failures to comply with his supervised release
conditions, Black was argumentative with Meredith and dismissive of the court’s
conditions of supervised release. Black also rejected Meredith’s proposed
“graduated sanction” of six months in a halfway house, essentially daring the
government to re-imprison him if it could afford it. Then, at his revocation
hearing, Black admitted he would be unable to follow his probation officer’s
instructions if Black deemed those instructions unreasonable.
In varying upward, the district court cited the need to promote respect for
the conditions of supervised release imposed by the court and to deter others. The
district court also emphasized that a sentence above the advisory range was
warranted given that Black had received a significant downward departure at his
original sentencing. Contrary to Black’s assertion, the district court’s explanation
for the variance is sufficiently compelling to justify the 14-month variance. As the
district court explained, Black’s violations were not merely “technical” because
they were willful and thus tended to undermine the system of supervised release.
Moreover, although Black’s 24-month sentence was above the recommended
range, it was well below the five-year statutory maximum. See United States v.
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Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Black also argues that the district court’s 24-month sentence created an
unwarranted disparity with other defendants in two other cases. However, the
cases Black cites are not published and are not binding precedent. See 11th Cir.
R. 36-2. In any event, to be unwarranted, a disparity must be between similarly
situated defendants with similar records. See United States v. Spoerke, 568 F.3d
1236, 1252 (11th Cir. 2009). Black has not shown that the defendant in either
case he cites was similarly situated. The only similarities to Black are that both
defendants committed Grade C violations and had a criminal history category of
II, which resulted in an advisory guidelines range of 4 to 10 months, and both
defendants received sentences above that range. Beyond that, the nature of the
defendants’ Grade C violations and the circumstances surrounding them were
different. Additionally, the cases Black cites do not require a finding of
unreasonableness here. Rather, they merely demonstrate the broad range of
discretion a district court has in imposing a reasonable sentence.
Finally, Black points out that he did not commit any new crimes or test
positive for illegal drugs, that he constantly sought work, and that he was a good
worker and helped his elderly parents. The district court considered these
mitigating facts at the revocation hearing and concluded that they were
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outweighed by the willfulness of Black’s violations and his unwillingness to be
supervised. In short, Black asks us to substitute our judgment for the district
court’s and to reweigh the factors on appeal, which is something we do not do.
See United States v. Saac, 632 F.3d 1203, 1214-15 (11th Cir.), cert. denied, 132 S.
Ct. 139 (2011).
Under the totality of the circumstances, we cannot say the district court’s
decision to vary upward and impose a 24-month sentence was an abuse of
discretion.
AFFIRMED.
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