Case: 12-11398 Date Filed: 11/13/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11398
Non-Argument Calendar
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D.C. Docket No. 2:01-cr-00067-JES-DNF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED DOUGLAS SHACKLEFORD,
a.k.a. Fred Shackle,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 13, 2012)
Before MARTIN, JORDAN and FAY, Circuit Judges.
PER CURIAM:
After Fred Shackleford admitted that he violated the terms of his supervised
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release by selling marijuana and testing positive for cocaine, the district court
sentenced him to 24 months of imprisonment. On appeal, Mr. Shackleford challenges
his sentence as substantively unreasonable. After reviewing the parties’ briefs and the
record, we affirm.
We review Mr. Shackleford’s sentence for substantive reasonableness under
the deferential abuse of discretion standard. See Gall v. United States, 552 U.S. 38,
41 (2007). In doing so, we must examine the totality of the circumstances, including
whether the factors set forth in 18 U.S.C. § 3553(a) support the sentence. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Reversal is warranted 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. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal
quotation marks omitted).
When sentencing a defendant upon revocation of supervised release, a district
court must consider: (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 to criminal conduct, to protect the public from further crimes of
the defendant, and to provide the defendant with needed educational or vocational
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training, medical care, or other correctional treatment; (3) the kinds of sentences
available; (4) the Sentencing Guidelines’ range; (5) any pertinent Sentencing
Commission policy statements; (6) the need to avoid unwarranted sentencing
disparities among defendants with similar records who have been found guilty of
similar conduct; and (7) the need to provide restitution to victims. See 18 U.S.C. §
3583(e) (providing that a court must consider the factors set forth in § 3553(a)(1),
(a)(2)(B)–(D), and (a)(4)–(7)).
After reviewing the record, we cannot say that the 24-month sentence was
substantively unreasonable. First, the sentence was below the advisory guideline
range of 27-33 months. See United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005) (“[O]rdinarily we would expect a sentence within the Guidelines range to be
reasonable.”). Second, although Mr. Shackleford was originally convicted of serious
drug and firearm offenses and sentenced to approximately nine years of
imprisonment, he continued to engage in unlawful behavior following his release.
Third, Mr. Shackleford was eligible for an upward departure because he had received
a downward departure at his original sentencing. See U.S.S.G. § 7B1.4, cmt. n.4.
Fourth, the 24-month sentence is significantly less than the 5-year statutory maximum
penalty applicable to Mr. Shackleford. See Gonzalez, 550 F.3d at 1324 (comparing
the sentence imposed to the applicable statutory maximum). Contrary to Mr.
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Shackleford’s argument on appeal that the district court did not consider the fact that
his violations were the result of a serious accident he was involved in, the district
court explicitly considered Mr. Shackleford’s argument but determined that it did not
outweigh his violations. See R2:11 (“I have no reason to believe that was not initiated
by the accident that you referred to; but, nonetheless, you were selling drugs out of
your residence, and using drugs as well.”). Finally, the district court explicitly
considered the § 3553(a) factors, see R2:10, and we are not left with a “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.” Irey, 612 F.3d at 1190.
In sum, Mr. Shackleford has not met his burden to show that his 24-month
sentence is substantively unreasonable. See Talley, 431 F.3d at 788 (“the party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable”). Accordingly, Mr. Shackleford’s 24-month sentence is affirmed.
AFFIRMED.
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