United States v. Ashanti Sweeting

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 26, 2006
No. 05-11062 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 99-10029-CR-JCP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ASHANTI SWEETING,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(January 26, 2006)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
 I.

Appellant Ashanti Sweeting appeals his 24-month sentence imposed upon

the revocation of his supervised release, pursuant to 18 U.S.C. § 3583(e).

Sweeting was on supervised release based on his conviction for distributing a

detectable amount of cocaine base, for which he was sentenced to 100 months

imprisonment to be followed by a four-year term of supervised release (hereinafter

referred to as “case no. 99-10029”). Sweeting was convicted in another unrelated

case for distributing a detectable amount of cocaine base (hereinafter referred to as

“case no. 99-10019”), for which he was sentenced to a 100-month term of

imprisonment to run concurrent with the sentence in case no. 99-10029.

Sweeting’s sentences were reduced to 26 months, pursuant to Fed. R. Crim. P.

35(b) motions filed in both cases, to reflect his substantial assistance in other

government prosecutions. While out on supervised release in both cases, Sweeting

was indicted and convicted of two counts of distributing crack cocaine and was

sentenced to ten years imprisonment (hereinafter referred to as “case no. 03-

10010”). As a result, his supervised release was revoked in case no. 99-10029 and

case no. 99-10019. The district court judge in case no. 99-10019 imposed a three-

year term of imprisonment, to run consecutive to the ten-year term imposed in case

no. 03-10010. The district court in case no. 99-10029 imposed a two-year term of

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imprisonment, to run consecutive to the thirteen-year sentences for the other two

cases. Sweeting now appeals that consecutive two-year term.

II.

On appeal, Sweeting argues that the district court’s decision to impose a

second consecutive sentence for the same violation of supervised release

constitutes an abuse of discretion. Sweeting asserts that by imposing a consecutive

instead of a concurrent sentence, the court has in essence added an additional five

years to his sentence for identical violations, which is double the applicable

Guideline recommendation and, therefore, is plainly unreasonable.

III.

Prior to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d

621 (2005), we reviewed a federal sentence imposed upon revocation of supervised

release under the “plainly unreasonable” standard set forth in 18 U.S.C. §

3742(e)(4). See United States v. Scroggins, 910 F.2d 768, 769 (11th Cir. 1990)

(per curiam). In Booker, however, the Supreme Court excised § 3742(e) and

replaced it with a reasonableness standard. See Booker, 125 S. Ct. at 764-66. In

the wake of Booker, numerous circuits applying the reasonableness standard

prescribed in Booker to sentences imposed upon revocation of supervised release

have concluded that the reasonableness standard of Booker is essentially the same

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as the “plainly unreasonable” standard of § 3742(e)(4). See United States v.

Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005); United States v. Cotton, 399 F.3d

913, 916 (8th Cir. 2005); United States v. Fleming, 397 F.3d 95, 99 (2d Cir.

2005).1 We agree and review Sweeting’s sentence for reasonableness.

Under 18 U.S.C. § 3583(e), a district court may, upon finding by a

preponderance of the evidence that a defendant has violated a condition of

supervised release, revoke the term of supervised release and impose a term of

imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).

Section 3553(a) provides that district courts imposing a sentence must first

consider, inter alia, (1) the nature and circumstances of the offense; (2) the history

and characteristics of the defendant; (3) the need for the sentence to reflect the

seriousness of the offense, promote respect for the law, and provide just

punishment for the offense; and (4) the kinds of sentences and sentencing range

established by the Guidelines, and in the case of a violation of supervised release,

the applicable Guidelines or policy statements issued by the Sentencing

Commission. See 18 U.S.C. § 3553(a).

1
Various panels of this circuit have also concluded as much, albeit in unpublished opinions.
See, e.g., United States v. Livingston, No. 04-16287 (11th Cir. July 22, 2005) (per curiam); United
States v. Powell, No. 04-15706 (11th Cir. June 28, 2005) (per curiam); United States v. Turner, No.
04-15161 (11th Cir. June 7, 2005) (per curiam); United States v. Fayne, No. 04-15296 (11th Cir.
Dec. 21, 2005) (per curiam); United States v. Pina, No. 05-11815 (11th Cir. Dec. 23, 2005) (per
curiam).

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 We cannot say that the district court acted unreasonably when, after

Sweeting violated his supervised release by committing a controlled substance

offense punishable by a term of imprisonment exceeding one year, the court

sentenced him to two years imprisonment. First, Sweeting admitted that he

violated the conditions of his supervised release, therefore the district court acted

within its discretion when it revoked his release. See 18 U.S.C. § 3583(e).

Second, the district court sentenced Sweeting to 24 months imprisonment, which is

below the recommended Guideline imprisonment range of 33 to 41 months and

within the statutory maximum sentence for a Class B or C felony. U.S.S.G.

§ 7B1.4(a); 18 U.S.C. § 3583(e). Third, the district court adequately considered

the § 3553(a) factors in arriving at Sweeting’s sentence, including his criminal

history and his threat to the public. Fourth, the district court acted within its

discretion when it imposed a consecutive sentence. See United States v. Quinones,

136 F.3d 1293, 1295 (11th Cir. 1998) (Whether terms of supervised release are to

be served concurrently or consecutively is “a question that [18 U.S.C.] § 3584(a)

entrusts to the [district] court’s discretion.”). In sum, Sweeting’s 24 month

consecutive sentence was within the applicable statutory maximum, the

recommended Guideline range, and was reasonable in light of the evidence of his

conduct while on supervised release. Accordingly, we affirm Sweeting’s sentence.

AFFIRMED.

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