Case: 22-60420 Document: 00516757134 Page: 1 Date Filed: 05/19/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
_____________ FILED
May 19, 2023
No. 22-60420
Lyle W. Cayce
consolidated with Clerk
No. 22-60421
_____________
United States of America,
Plaintiff—Appellee,
versus
Gurdy Farmer,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Southern District of Mississippi
USDC Nos. 3:19-CR-274-1, 4:13-CR-15-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Defendant-Appellant Gurdy Farmer challenges his statutory-
maximum 36-month term of imprisonment imposed on revocation of his two
terms of supervised release. Farmer contends that the district court
substantively and procedurally erred by (1) selecting sentences based on
clearly erroneous facts; (2) applying items of evidence to the sentencing
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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factors, and (3) relying on extrajudicial sources that revealed an unfair bias
towards Farmer. For the following reasons, we affirm the district court’s
sentence regarding the two revocations of release.
I. BACKGROUND
In 2013, Farmer pleaded guilty to one count of abusive sexual contact
in violation of 18 U.S.C. § 2244(a)(3). He was sentenced to 18 months of
imprisonment and five years of supervised release. In 2015, Farmer pleaded
true to violating conditions of his supervised release and was sentenced to
nine months of imprisonment and five years of supervised release. In 2019,
after he again violated his supervised release, he was sentenced to 10 months
of imprisonment and five years of supervised release. Those violations also
resulted in federal charges; in 2020, Farmer pleaded guilty to one count of
felon in possession of firearm in violation of 18 U.S.C. § 922(g)(1) and was
sentenced to a 12-month-and-one-day term of imprisonment and three years
of supervised release.
In 2021, the probation office petitioned for a warrant, alleging that
Farmer had violated the terms of his supervised release beginning in
November of 2020 by testing positive for methamphetamine on two
occasions. He also failed to notify his probation officer after he was
questioned twice by the Choctaw Police Department, and he failed to notify
his probation officer after moving from his reported address. At the
revocation hearing, Farmer pleaded true to all allegations against him. During
that hearing, the probation officer recommended a sentence of nine months
of imprisonment for revocation of the terms of supervised release related to
his initial 2013 conviction of abusive sexual contact (4:13-CR-15-HTW) and
11 months of imprisonment for revocation of supervised release related to his
2020 conviction of felon in possession (3:19-CR-274-HTW), to run
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consecutively. That resulted in a 20-month term of imprisonment. Farmer
agreed with the recommendation of the probation office.
At the revocation hearing, the district court found that Farmer had
violated his supervised release conditions as alleged and sentenced him to the
statutory maximum: a one-year term of imprisonment with five years of
supervised release in 4:13-CR-15-HTW, to run consecutively to the two-year
sentence with one year of supervised release imposed in 3:19-CR-274-HTW.
These two revocation judgments resulted in a combined term of
imprisonment of 36 months. At the end of the hearing, Farmer’s counsel
objected to the procedural and substantive reasonableness of the sentence
imposed, stating that “[w]e would for the record object to the reasonableness
of the sentence, both procedurally and substantively.” Farmer timely filed
notices of appeal.
II. STANDARD OF REVIEW
When a defendant preserves his objection for appeal, this court
reviews a sentence imposed on revocation under the plainly unreasonable
standard. United States v. Foley, 946 F.3d 681, 685 (5th Cir. 2020). Under that
standard, this court first “ensure[s] that the district court committed no
significant procedural error, such as failing to consider the [18 U.S.C.] §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence, including failing to explain
a deviation from the Guidelines range.” Id. at 685 (internal quotation marks
and citation omitted). “If the district court’s sentencing decision lacks
procedural error, this court next considers the substantive reasonableness of
the sentence imposed.” United States v. Kippers, 685 F.3d 491, 497 (5th Cir.
2012). A revocation sentence will be found substantively unreasonable if it
“(1) does not account for a factor that should have received significant
weight, (2) gives significant weight to an irrelevant or improper factor, or (3)
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represents a clear error of judgment in balancing the sentencing factors.”
United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013) (quoting United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007)).
III. ANALYSIS
Farmer first challenges the procedural reasonableness of his sentence,
alleging that the district court made two errors in its factual findings. He
asserts that the district court erred in finding that he would present a threat
to the public “if he’s out trying to drive from time to time.” Farmer claims
that the district court lacked any evidentiary support for this finding because
there was no evidence in the record to support the conclusion that Farmer is
ever likely to operate a vehicle. Farmer points out that he testified that he is
homeless and does not own a car. Farmer also takes issue with the district
court’s finding that he violated his probation by failing to report his changes
of address to his probation officer. He asserts that there is no way he could
have complied with this condition because he is homeless, which he alleges
is the result of a special condition imposed at his 2019 revocation hearing.
The district court considered Farmer’s recidivism and addiction in
determining his sentences, but Farmer’s repeated supervised release
violations, including his drug use and failure to report change of address, are
undisputed and supported by the evidence of record. The record also
demonstrates that Farmer was previously convicted for driving under the
influence in 2007 and had numerous arrests for intoxication. Moreover,
Farmer formally admitted that he violated the condition that he report any
changes of address, and he did not object to the special condition imposed in
2019 that allegedly led to his homelessness. Farmer did not contest any of
those facts during the instant revocation hearing and has not shown that the
district court relied on any erroneous information or that its factual findings
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were not plausible in light of the record as a whole. See Warren, 720 F.3d at
331; United States v. Alaniz-Alaniz, 38 F.3d 788, 790 & n.3 (5th Cir. 1994).
Farmer also challenges the substantive reasonableness of the
sentence, asserting that the district court erred by giving undue weight to
some sentencing factors and by relying on extrajudicial sources that resulted
in an unfair bias. At sentencing, the district court considered Farmer’s
repeated noncompliance with his supervised release conditions and
determined that another guidelines sentence would not adequately deter
Farmer or others from unlawful conduct. The court ultimately decided that
a sentence above the recommended sentencing range, but within the
statutory maximum, was proper to satisfy the sentencing goals of § 3553(a).
The record reflects that the district court undertook an individualized
assessment of the facts and that its justification for imposing the revocation
sentence was consistent with the 18 U.S.C. § 3553(a) sentencing factors.
Farmer is correct that the district court alluded to extrajudicial evidence by
opining on the efficacy of sober living facilities, yet he fails to show that the
district court gave this evidence significant weight or that it was a dominant
factor in the district court’s sentencing decision. See Warren, 720 F.3d at 332.
The remainder of Farmer’s argument amounts to a disagreement with the
district court’s balancing of the applicable § 3553(a) factors, which this court
will not reweigh. See Warren, 720 F.3d at 332. Farmer has failed to show that
his revocation sentences are plainly unreasonable. See id.
Farmer’s 36-month sentence is the statutory maximum, but the
district court could have imposed any sentence within the appropriate
statutory maximum term of imprisonment. United States v. Receskey, 699 F.3d
807, 809 (5th Cir. 2012). This court has “routinely affirmed revocation
sentences exceeding the advisory range, even where the sentence equals the
statutory maximum,” Warren, 720 F.3d at 332 (internal quotation marks and
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citation omitted); see also United States v. Mathena, 23 F.3d 87, 89, 93-94 (5th
Cir. 1994) (concluding sentence of 36 months of imprisonment was not
plainly unreasonable when the policy-statement range was 12 months of
imprisonment).
IV. CONCLUSION
The district court’s imposition of a 36-month term of imprisonment
was not plainly unreasonable. Its two revocation judgments are
AFFIRMED.
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