United States v. Byron Sherrod Rainner

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13200 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 23, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:11-tp-60001-WJZ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BYRON SHERROD RAINNER,

Defendant-Appellant.

________________________

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

(February 23, 2012)

Before DUBINA, Chief Judge, BARKETT, and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant Byron Rainner appeals the district court’s order revoking his
supervised release and imposing a 22-month sentence pursuant to that revocation,

which resulted in an upward variance from the sentence suggested under the

Guidelines. The revocation petition filed by Rainner’s probation officer, Steven

Aasterud, alleged five violations of the conditions of his release. Violation One

alleged that Rainner had conspired with Othel Turner to violate the law by

fraudulently obtaining approximately $127,000 from Lois Rhodes, in violation of

18 U.S.C. § 1349. Violation Two alleged that Rainner had violated the law by

having knowingly and fraudulently obtained Rhodes’s property in the form of two

personal checks totaling $2,000, in violation of Fla. Stat. § 812.014(1). Violation

Three alleged that Rainner had violated the law by driving with a suspended

license, in violation of Fla. Stat. § 322.34(2)(c). Violation Four alleged that

Rainner violated a condition of his release by failing to report to the probation

officer the $2,000 in income he obtained as a result of Violation Two. Violation

Five alleged that Rainner violated the condition of his release that required him to

be truthful to his probation officer, by presenting Aasterud with copies of money

orders Rainner claimed he was using to make restitution payments but, instead,

was altering those money orders and using them for personal gain. On appeal,

Rainner alleges that the district court abused its discretion in revoking his

supervised release and in varying upward from the suggested guideline sentence.

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 A. Revocation of Supervised Release

Rainner argues that the district court abused its discretion in revoking his

supervised release based on Violations Two and Four, as the $2,000 in checks that

Rainner may have cashed were for services Rhodes actually received, and no

evidence showed that Rainner kept the money.1 With regard to Violation Three,

Rainner asserts that there was insufficient evidence to show that his license was

suspended on the date of his arrest. Finally, Rainner maintains that Violation

Five, to which he admitted, is not a violation of state or federal law and therefore

not a basis for revoking his release.

We review the district court’s conclusion that the defendant violated the

terms of his supervised release for an abuse of discretion. United States v.

Cunningham, 607 F.3d 1264, 1266 (11th Cir.), cert. denied, 131 S. Ct. 482 (2010).

A district court's findings of fact made at a revocation proceeding are binding

unless clearly erroneous. United States v. Almand, 992 F.2d 316, 318 (11th Cir.

1993).

A district court may revoke a defendant’s term of supervised release if the

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Rainner also contends that, in discussing its decision to revoke his release, the court’s
statement that it did not doubt that Rainner defrauded Rhodes out of approximately $127,000, was
erroneous and not a reasonable inference from the evidence. However, it is clear from the context
that Rainner only argues that the court’s belief in this regard affected its sentencing decision, which
is discussed infra, not its revocation decision.

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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); see also United States

v. Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004) (explaining that the

preponderance of the evidence standard requires only that the trier of fact believe

that “the existence of a fact is more probable than its nonexistence”) (internal

quotation marks omitted). If the court finds that the defendant committed a

violation categorized by the Sentencing Guidelines as a Grade B, the court shall

revoke the defendant’s supervised release. U.S.S.G. § 7B1.3(a)(1). If the court

finds the defendant committed a Grade C violation, the court may revoke the

supervised release. U.S.S.G. § 7B1.3(a)(2). A Grade B violation is found where

there is conduct constituting a federal or state offense punishable by a term of

imprisonment exceeding one year. U.S.S.G. § 7B1.1(a)(2). A Grade C violation

exists for conduct constituting either: (1) a federal or state offense punishable by a

year or less in prison; or (2) a violation of any other condition of supervision.

U.S.S.G. § 7B1.1(a)(3). Theft of property valued at more than $300 but less than

$5,000 is a third-degree felony under Florida law and punishable by a term of

imprisonment not exceeding five years. Fla. Stat. §§ 812.014(2)(c)1.

775.082(3)(d).

We conclude from the record that the district court did not abuse its

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discretion in finding a basis to revoke Rainner’s supervised release. Violation

Two, which alleged a theft of property exceeding $300 but less than $5,000,

constituted a state offense punishable by a term of imprisonment exceeding one

year and, as such, represents a Grade B violation. See U.S.S.G. § 7B1.1(a)(2), Fla.

Stat. §§ 812.014(2)(c)1., 775.082(3)(d). Because Violation Two was a Grade B

violation, if the court properly found that Rainner committed Violation Two, then

such a finding required the revocation of his supervised release. See U.S.S.G.

§ 7B1.3(a)(1). The court’s finding was supported in the record.

The evidence presented at the revocation hearing established that the $2,000

in checks had been cashed in Rainner’s name, using his identification. Rhodes left

the “pay to the order of” line on both checks blank, believing that the funds would

be used for legal work and not to pay Rainner personally. Although Probation

Officer Aasterud was not able to provide evidence that Rainner had kept the funds,

Rainner failed to produce evidence to support his claim that the funds had gone to

pay for legal work for Rhodes. Therefore, the district court’s finding that Rainner

committed Violation Two was not clearly erroneous. See Almand, 992 F.2d at

318; Trainor, 376 F.3d at 1331. Although a finding that Violation Two had been

committed was sufficient to trigger the court’s obligation to revoke Rainner’s

release, it is worth noting that, assuming Rainner committed Violation Two, he

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necessarily committed Violation Four as well, as undisputed evidence showed that

Rainner had not reported the $2,000 as income to his probation officer.

Alternatively, the court was permitted to exercise its discretion to revoke

Rainner’s supervised release based on his admission to Violation Five, failing to

be truthful when answering the probation officer’s inquiries. See U.S.S.G.

§ 7B1.1(a)(3).

II. Sentencing

Rainner argues that the district court’s belief that he defrauded Rhodes out

of the $127,000, despite its findings that a conspiracy had not been proven, was

the principle reason for the upward variance imposed by the court. Rainner

contends that the court’s stated reasons for the variance–the need to reflect the

seriousness of the offense and ensure just punishment–reflected, at least in part, its

belief that Rainner was guilty of Violation One. Rainner reiterates his argument

that Violation One was not proven and, thus, maintains that the court erred by

imposing an upward variance based in part on an unproven offense.

“We review the sentence imposed upon the revocation of supervised release

for reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008). This review is akin to that conducted under an abuse-of-

discretion standard. United States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir.

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2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011). In reviewing the

reasonableness of a sentence, we conduct a two-step inquiry. Gall v. United

States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). First, we

must ensure that the sentence was procedurally reasonable, meaning the district

court (1) properly calculated the guidelines range, (2) treated the guidelines as

advisory, (3) considered the § 3553(a) factors, (4) did not rely on clearly erroneous

facts, and (5) adequately explained the chosen sentence. Id. Once we determine

that a sentence is procedurally sound, we must examine whether the sentence was

substantively reasonable in light of the record and the § 3553(a) factors. Id.

The justification for a variance from the guidelines range “must be

sufficiently compelling to support the degree of the variance.” Irey, 612 F.3d at

1186-87 (internal quotation marks omitted). We may not presume that a sentence

outside the guidelines is unreasonable and “must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” Id. at 1187 (internal quotation marks omitted).

“Chapter 7 of the Sentencing Guidelines governs violations of [supervised

release] and contains policy statements, one of which provides recommended

ranges of imprisonment applicable upon revocation.” United States v. Silva, 443

F.3d 795, 799 (11th Cir. 2006) (citing U.S.S.G. § 7B1.4). The policy statements

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of Chapter 7 are merely advisory and not binding. Id.

We conclude from the record that the district court did not abuse its

discretion in varing upward from the suggested guidelines sentence. Despite the

contentions of the parties, a review of the sentencing transcript does not reveal any

reason to believe that the court relied on the unproven conspiracy in Violation One

as a basis for its sentencing decision, as the court nowhere references the

circumstances of that violation in rendering its sentencing decision. The court’s

sentence was procedurally sound as it is clear that the court properly calculated the

advisory guidelines range, considered the proper evidence and the § 3553(a)

factors, and explained its sentence. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.

The court’s sentence was also substantively reasonable. The court particularly

emphasized at sentencing its hope that the above-guidelines sentence would serve

to promote in Rainner a greater respect for the law and for the seriousness of what

he had done. See 18 U.S.C. § 3553(a)(2)(A). Given the relatedness of Violations

Two, Four, and Five to Rainner’s original fraud conviction, for which the instant

term of supervised release was imposed, the court’s finding–that Rainner’s

continued conduct evinced a lack of respect for the law and an insufficient

appreciation for the seriousness of his offenses–was reasonable. In this case, the

22-month sentence represented a variance from the guidelines range of 4 to 10

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months. However, the degree of the variance, while significant, was justified by

the conduct necessitating revocation. See Irey, 612 F.3d at 1186-87.

For the aforementioned reasons, we affirm the district court’s revocation of

Rainner’s supervised release and the sentence it imposed pursuant to that

revocation.

AFFIRMED.

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