USCA11 Case: 21-10991 Document: 66-1 Date Filed: 12/29/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10991
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACE MILTON BLACK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:15-tp-20087-KMM-1
____________________
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2 Opinion of the Court 21-10991
Before ROSENBAUM, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
Horace Milton Black appeals the revocation of his term of
supervised release and the 36-month sentence the district court im-
posed upon revocation. He argues that there was insufficient evi-
dence to support the district court’s finding that he violated a con-
dition of his supervised release and also that the district court im-
posed a substantively unreasonable sentence. After careful consid-
eration, we affirm.
I.
After Black pled guilty to committing an armed bank rob-
bery, in violation of 18 U.S.C. § 2113(a), the district court imposed
a sentence of 140 months’ imprisonment followed by five years of
supervised release. The conditions of Black’s supervised release re-
quired that he “not commit another federal, state[,] or local crime”
and “not unlawfully possess a controlled substance” while on su-
pervised release. Doc. 1 at 10. 1 In addition, while on supervised re-
lease, Black was required to receive permission from his probation
officer to leave the judicial district.
After Black completed his prison sentence, he began to serve
his term of supervised release in the Southern District of Florida.
During the first four years of his term of supervised release, Black
1 “Doc.” numbers refer to the district court’s docket entries.
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21-10991 Opinion of the Court 3
violated the terms of his supervised release at least three times by
(1) traveling outside the judicial district where he was on super-
vised release without first securing the permission of his probation
officer, (2) violating the law by driving with a suspended license,
and (3) testing positive for marijuana. In proceedings related to
each of these violations, the district court did not revoke Black’s
term of supervised release.
Shortly before Black’s term of supervised release expired, he
was arrested and the United States Probation Office filed a petition
in the district court charging him with new violations of the condi-
tions of his supervised release. The petition alleged that Black had
violated the law by, among other things, possessing cocaine with
intent to sell. Black was arrested and detained so that the district
court could decide whether to revoke his supervised release.
The district court referred the case to a magistrate judge to
determine whether Black had violated the terms of his supervised
release. At a revocation hearing, the government introduced evi-
dence showing that Black was arrested after being found with half
a kilogram of cocaine.
The testimony at the evidentiary hearing reflected that dur-
ing a narcotics investigation that involved multiple wiretaps, law
enforcement officers intercepted a phone call in which two targets
discussed their plan to sell half a kilogram of cocaine. On the call,
Roosevelt Lewis and another individual, whom law enforcement
designated as “Unidentified Male 9,” planned the transaction in
which Unidentified Male 9 would sell the cocaine. At the time law
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4 Opinion of the Court 21-10991
enforcement officers intercepted the call, they did not know the
identity of “Unidentified Male 9,” but they knew the phone num-
ber he used, which had a 321 area code. Earlier in the investigation,
officers observed a meeting between Lewis and Unidentified Male
9. From the surveillance, the officers were unable to ascertain Un-
identified Male 9’s identity, but they learned that he used the phone
number with the 321 area code and drove a Jeep Liberty. During
the surveillance, the officers identified the Jeep Liberty’s license
plate number.
On the evening of the transaction when Unidentified Male 9
planned to sell the cocaine, law enforcement officers surveilled a
residence where they believed he was staying. When officers on
the surveillance team saw the Jeep Liberty depart, they followed
the vehicle. Other members of the surveillance team monitored lo-
cation data captured from the cell phone with the 321 area code
phone number that belonged to Unidentified Male 9. The location
data reflected that the movements of the cell phone were con-
sistent with the movements of the Jeep Liberty.
Officers on the surveillance team directed two Florida State
Troopers, Ricky Zigler and Eddie Rivera, to watch for the Jeep Lib-
erty and provided them with the vehicle’s description and license
plate number. Zigler spotted the Jeep Liberty traveling on the in-
terstate and followed it. After observing the vehicle commit traffic
infractions, he initiated a traffic stop.
As Zigler signaled for the Jeep to pull over, an officer on the
surveillance team intercepted a phone call from Unidentified Male
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21-10991 Opinion of the Court 5
9, using the phone number with the 321 area code, to Lewis. On
the call, Unidentified Male 9, stated, “Bro[,] they got me pulled[,]
bro.” Doc. 57-2 at 8.
At the traffic stop, Zigler approached the Jeep Liberty and
asked the driver, who was the sole occupant of the vehicle, for his
license and registration. Black was the driver of the vehicle. When
Zigler approached the vehicle, he smelled marijuana and saw
crumbs of what he believed was marijuana residue in the center
console of the car. Zigler told Black that he could smell marijuana
and directed him to exit the vehicle.
While Zigler spoke to Black, Rivera arrived on the scene
with a dog trained to detect narcotics. The dog alerted to the front
passenger side of the Jeep Liberty.
Zigler and Rivera searched the vehicle. Underneath the pas-
senger seat closest to the center console, Zigler found a plastic
shopping bag. According to Zigler, the bag was within reach of the
driver’s seat. Inside the bag were two smaller bags that contained a
white powdery substance that appeared to be cocaine. Field tests
confirmed that the substances in both bags were cocaine. To-
gether, the two bags had a combined weight of 537 grams. Accord-
ing to Rivera, based on his training and experience, this quantity
was inconsistent with personal use and instead indicative of distri-
bution.
The officers found one cell phone on Black the night of his
arrest. During the hearing, Zigler and Rivera both testified that
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6 Opinion of the Court 21-10991
they did not know the telephone number or area code for the cell
phone that they had seized.
After the hearing, the magistrate judge issued a recommen-
dation that the district court find that Black violated the conditions
of his supervised release, revoke his supervised release, and hold a
sentencing hearing. The magistrate judge concluded that the gov-
ernment had shown by a preponderance of the evidence that Black
had violated the law by “possess[ing] the cocaine that was in the
vehicle he was driving at the time of the traffic stop with the intent
to sell it.” Doc. 59 at 9. The magistrate judge explained that the
cocaine was in Black’s possession because the bags were found “un-
der the front passenger seat” and “within the reach of the driver”
and that Black was the only person in the vehicle at the time of the
stop. Id. at 10. The magistrate judge also found that the intercepted
phone calls between Lewis and Black provided further evidence
that Black was aware of the cocaine in the car and thus knowingly
possessed it. In addition, the magistrate judge found by a prepon-
derance of the evidence that Black intended to sell the cocaine. The
magistrate judge explained that the discussion on the recorded
phone calls along with the amount of cocaine seized supported
finding that Black intended to sell the cocaine.
Black had argued that there was insufficient evidence that he
knowingly possessed the cocaine with intent to sell because the
government had not shown that he was Unidentified Male 9 and
thus could not rely on the recorded phone calls. He pointed out
that there was no evidence that the cell phone with the 321 area
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21-10991 Opinion of the Court 7
code phone number had been recovered during the search of the
car. Still, the magistrate judge concluded that the government es-
tablished by a preponderance of the evidence that Black was Uni-
dentified Male 9. The magistrate judge found “[i]t would be highly
unlikely that [Unidentified Male 9] was somewhere else being
stopped at the same time and that the GPS system that identified
the movement of [Unidentified Male 9] consistent with the move-
ment of [Black’s] vehicle would have also been incorrect.” Id. at 11.
The magistrate judge continued on explaining that the court
did not need to rely on the recorded phone call evidence. “[E]ven
if one were to assume that [Unidentified Male 9] was being stopped
at the same time somewhere else, that the GPS information was
incorrect, and that [Black] was not the person on the earlier calls
with Lewis,” the magistrate judge concluded, there was still suffi-
cient evidence that Black possessed cocaine. Id. at 11–12. The mag-
istrate judge emphasized that Black was “stopped in a car with half
a kilogram of cocaine” that was within his reach and found that it
was “unlikely that cocaine in that amount and of that value would
be in the car that [Black] was driving without his knowledge.” Id.
at 12. The magistrate judge further concluded that the court could
find Black intended to sell the cocaine based solely on the quantity
of cocaine found in the vehicle.
Black objected to the recommendation. After considering
Black’s objection, the district court adopted the magistrate judge’s
recommendation and found that Black had violated the conditions
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8 Opinion of the Court 21-10991
of his supervised release. The court revoked Black’s supervised re-
lease.
The district court then considered an appropriate sentence
for the violation. The court calculated Black’s guidelines range as
33 to 36 months’ imprisonment. Black requested that the court
grant a downward variance and impose a sentence below this
range. He pointed to the ongoing COVID-19 pandemic and that he
faced a 15-year mandatory minimum sentence in a state prosecu-
tion arising out of the same incident. He also urged the court to
consider other mitigating factors including that he had kept a job
while on supervised release, paid his child support, and was raising
his family.
The government requested a sentence of 36 months. It ar-
gued that Black had committed a “very serious felony offense . . .
while he was still under supervision for an even more serious of-
fense of armed robbery.” Doc. 77 at 11. The government also
pointed out that while on supervised release Black had previously
violated the conditions of his supervised release three times with-
out receiving any additional jail time.
The district court rejected Black’s request for a downward
variance and sentenced Black to 36 months’ imprisonment with
two years of supervised release to follow. The court directed that
the sentence would run consecutive to any sentence imposed in
state proceedings. The court explained that when Black committed
the earlier violations of the conditions of his supervised release, it
had given him “a break” by not imposing a custodial sentence. Id.
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21-10991 Opinion of the Court 9
at 15. Because Black “didn’t get the message” that he needed to
comply with the terms of his supervised release, the court deter-
mined that a longer sentence was necessary to “promote respect
for law.” Id. at 15–16. The district court also explained that a 36-
month sentence was reasonable given the “underlying offense
here,” Black’s “background and criminal history,” and “the need to
promote deterrence.” Id. at 16.
This is Black’s appeal.
II.
“We review the district court’s conclusion that [a defendant]
violated the terms of his supervised release for abuse of discretion.”
United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994). We
review a sentence imposed upon revocation of supervised release
for reasonableness under the deferential abuse-of-discretion stand-
ard. United States v. Moore, 22 F.4th 1258, 1269 (11th Cir. 2022).
III.
On appeal, Black argues that the district court abused its dis-
cretion when it (1) found that he violated the conditions of his su-
pervised release and (2) imposed a 36-month sentence for his viola-
tion. We address each issue in turn.
A.
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10 Opinion of the Court 21-10991
We begin with Black’s argument that the district court
abused its discretion in finding that he violated the conditions of
supervised release. He says that there was insufficient evidence to
show that he had committed the crime of possessing with intent to
sell cocaine.
There is no dispute in this case that one condition of Black’s
supervised release was that he not commit a violation of the law.
Here, it was alleged that while on supervised release Black violated
the Florida law prohibiting possession of cocaine with intent to sell.
See Fla. Stat. § 893.13(1)(a). The elements of this offense are that
(1) the defendant possessed with intent to sell a certain substance;
(2) the substance was cocaine; and (3) the defendant had
knowledge of the presence of the substance. See Driver v. State,
288 So. 3d 716, 719 (Fla. Dist. Ct. App. 2020).
To revoke Black’s supervised release, the district court had
to find by a preponderance of the evidence that Black committed
this offense. See 18 U.S.C. § 3583(e)(3). “A preponderance of the
evidence is evidence which is more convincing than the evidence
offered in opposition to it.” United States v. Watkins, 10 F.4th 1179,
1184 (11th Cir. 2021) (en banc) (internal quotation marks omitted).
This standard “simply requires the trier of fact to believe that the
existence of a fact is more probable than its nonexistence.” Id. (in-
ternal quotation marks omitted). To satisfy the standard in this
case, the government had to persuade the trier of fact that it was
more likely than not that Black committed the offense of posses-
sion of cocaine with intent to sell.
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21-10991 Opinion of the Court 11
Here, Black argues that the evidence was insufficient in two
ways. He says that there was “no proof” that (1) he had knowledge
of the presence of the cocaine in the car or (2) he intended to sell
the cocaine. Appellant’s Br. at 15. We disagree.
First, there was sufficient evidence to support a finding that
Black knew the cocaine was in the Jeep Liberty. The record reflects
that Black was the sole occupant of the vehicle while a valuable and
substantial quantity of cocaine was inside it. And Zigler’s testimony
established that the plastic bag containing the cocaine was under
the passenger seat in a place that was within Black’s arms reach
when he was sitting in the driver seat. This evidence was sufficient
to support an inference that Black knew the cocaine was in the ve-
hicle. See United States v. Howard, 742 F.3d 1334, 1341–42 (11th
Cir. 2014) (concluding there was sufficient evidence that defendant
knowingly possessed contraband found in glovebox of car when he
had been “in the driver’s seat just before the search”); State v.
Odom, 862 So. 2d 56, 58–59 (Fla. Dist. Ct. App. 2003) (concluding
there was sufficient evidence that defendant knowingly possessed
cocaine when defendant was the “sole occupant and driver of the
vehicle” and contraband was found close to driver’s seat).
Second, there was sufficient evidence that Black intended to
sell the cocaine because of the quantity of cocaine found in the car.
Rivera testified that based on his training and experience, the quan-
tity of cocaine found—over half a kilogram—was inconsistent with
personal use and instead indicative of distribution. See United
States v. Thomas, 676 F.2d 531, 535 (11th Cir. 1982) (recognizing
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12 Opinion of the Court 21-10991
that a factfinder may infer that a defendant intended to sell or dis-
tribute drugs based on the quantity of drugs found). 2
For these reasons, we conclude that the district court did not
abuse its discretion in concluding that Black violated the conditions
of his supervised release and revoking his supervised release. 3
B.
Black also challenges the 36-month sentence that the district
court imposed as substantively unreasonable. He says that the dis-
trict court gave too much weight to his criminal history and did not
2 In addition to the evidence about the quantity of cocaine found, the phone
calls between Lewis and Unidentified Male 9 showed that Black intended to
sell the drugs. Although Black argues there was insufficient evidence to show
that he was Unidentified Male 9, the record included testimony that location
data from the cell phone with the 321 area code showed that it was moving
consistently with the Jeep Liberty, a vehicle for which Black was the sole oc-
cupant. But, as we explained above, even without the recorded phone calls,
there was sufficient evidence to show that it was more likely than not that
Black committed the offense.
3 Black also suggests in passing that the magistrate judge and district court
should have suppressed evidence found during the search of the Jeep Liberty
because Black’s constitutional rights were violated when Zigler stopped and
searched the vehicle. Even assuming that Black adequately raised this argu-
ment on appeal, we cannot say that the district court erred in considering the
evidence found during the search of the Jeep Liberty because we have held
that the exclusionary rule does not apply to supervised release revocation pro-
ceedings. See United States v. Hill, 946 F.3d 1239, 1242 (11th Cir. 2020).
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sufficiently consider other relevant factors, such as his “individual
history and the nature of the charges.” Appellant’s Br. at 15.
Before imposing a sentence of imprisonment upon revoca-
tion, the district court must consider certain sentencing factors out-
lined in 18 U.S.C. § 3553(a). 4 See 18 U.S.C. § 3583(e). The weight
given to each § 3553(a) factor “is committed to the sound discretion
of the district court.” United States v. Butler, 39 F.4th 1349, 1355
(11th Cir. 2022).
We will vacate a district court’s sentence imposed upon rev-
ocation of supervised release 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 sen-
tence that lies outside the range of reasonable sentences dictated
by the facts of the case.” Moore, 22 F.4th at 1269 (internal quotation
marks omitted). We ordinarily expect a sentence falling within the
4 Section 3553(a) states that a court should “impose a sentence sufficient, but
not greater than necessary” to reflect the seriousness of the offense, promote
respect for the law, provide just punishment for the offense, afford adequate
deterrence to criminal conduct, protect the public from further crimes of the
defendant, and provide the defendant with needed educational or vocational
training or medical care. 18 U.S.C. § 3553(a)(2). In imposing a sentence, a court
also should consider: the nature and circumstances of the offense, the history
and characteristics of the defendant, the kinds of sentences available, the sen-
tencing range established under the guidelines, any pertinent policy statement
issued by the Sentencing Commission, the need to avoid unwarranted sen-
tencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(1), (3)–(7).
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14 Opinion of the Court 21-10991
guidelines range to be reasonable. See United States v. Croteau, 819
F.3d 1293, 1309–10 (11th Cir. 2016). “The fact that [we] might rea-
sonably have concluded that a different sentence was appropriate
is insufficient to justify reversal of the district court.” Gall v. United
States, 552 U.S. 38, 51 (2007).
After considering the facts of the case, we are not left with a
definite and firm conviction that the district court committed an
error of judgment when it imposed a 36-month sentence. This sen-
tence was within the guidelines range, which is an indicator of rea-
sonableness. See Croteau, 819 F.3d at 1309–10. Given that Black’s
violation involved arranging to sell a significant quantity of cocaine
while on supervised release and that he had previously violated
several other conditions of supervised release, we cannot say that
the sentence was unreasonable.
AFFIRMED.