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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11145
Non-Argument Calendar
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D.C. Docket No. 2:02-cr-00191-LSC-JHE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARON DIMITRIC PLAYER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(January 18, 2017)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Loran Player appeals his 24-month sentence following the revocation of his
supervised release pursuant to 18 U.S.C. § 3583(e)(3). On appeal, Player argues
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that the district court erred in finding by a preponderance of the evidence that he
knew or had reasonable grounds to know the vehicle he drove was stolen. Player
also argues that the district court abused its discretion in imposing a 24-month
sentence. The district court did not err in determining that Player knew or had
reasonable grounds to believe he operated a stolen vehicle. Additionally, the
district court imposed a sentence that was supported by the record and that satisfies
the requirements of 18 U.S.C. § 3353(a). Accordingly, Player’s sentence was
reasonable.
I.
First, Player argues that the district court erred in finding by a preponderance
of the evidence that he knew or had reasonable ground to know the vehicle he had
drove was stolen. Alabama Criminal Code 13A-8-7 states that “[t]he theft of lost
property which exceeds two thousand five hundred dollars ($2,500) in value
constitutes theft of lost property in the first degree,” and that “[t]heft of lost
property in the first degree is a Class B felony.” “Under an indictment for
receiving stolen property, the prosecution must prove that the accused actually
knew that the property was stolen or that he had reasonable grounds to believe that
it was stolen.” Ashurst v. State, 462 So. 2d 999, 1004 (Ala. Crim. App. 1984). In
revocation hearings, a district court must only find that the defendant violated a
condition of supervised release by a preponderance of the evidence. 18 U.S.C.
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§ 3583(e)(3). We afford great deference to a district court’s credibility
determinations. United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir. 1999).
We review a district court’s finding of a violation of a term of supervised release
for an abuse of discretion. United States v. Copeland, 20 F.3d 412, 413 (11th Cir.
1994) (per curiam).
The district court did not err in determining that Player knew or had
reasonable grounds to believe that the vehicle he drove was stolen. The record
reflects that a number of items of Player’s were found in the vehicle, indicating
that the car was in Player’s possession for some time. Player and his wife were
unable to provide basic information regarding the individual from whom they
claimed to have borrowed the car, including his address, occupation, and his last
name. We give the credibility determinations of the district court great weight.
Gregg, 179 F.3d 1316. Particularly given the lower standard of proof required at
revocation hearings, see § 3583(e)(3), we find that the district court did not abuse
its discretion in determining that Player knew or had reasonable grounds to believe
that the car he was driving was stolen. See Copeland, 20 F.3d at 413.
II.
Second, Player argues that the district court abused its discretion in imposing
a 24-month sentence. We generally review the reasonableness of a sentence under
the deferential abuse of discretion standard of review. Gall v. United States, 552
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U.S. 38, 51 (2007). We first ensure that the district court did not improperly
calculate the guidelines range, treat the guidelines range as mandatory, fail to
consider the § 3553(a) factors, select a sentence based on clearly erroneous facts,
inadequately explain the chosen sentence, or commit any other significant
procedural error. Id. We then examine if, in light of the totality of the
circumstances, the sentence imposed was substantively reasonable. Id. The party
challenging the sentence bears the burden of showing the unreasonableness of the
sentence in light of the record and the § 3553(a) factors. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
Upon determining that a defendant violated a condition of supervised
release, the district court may revoke the term of supervision and impose a term of
imprisonment after considering: (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, protect the public, and effectively provide
the defendant with needed training, medical care, or other correctional treatment;
(3) relevant policy statements by the Sentencing Commission; (4) the need to avoid
unwarranted sentence disparities; and (5) the need to provide restitution. See 18
U.S.C. §§ 3583(e), 3553(a); see also United States v. Campbell, 473 F.3d 1345,
1348 (11th Cir. 2007) (per curiam). A district court need not state explicitly that it
considered the § 3553(a) factors if the record indicates that the court indeed
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considered the factors. United States v. Dorman, 488 F.3d 936, 944 (11th Cir.
2007).
We ordinarily expect a sentence falling within the guideline range is
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence
well below the statutory maximum may be considered another indicator of
reasonableness. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
However, we may not assume that a sentence outside the guidelines is necessarily
unreasonable. United States v. Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (en
banc). All sentences, whether inside, outside or significantly outside the
Guidelines range, are reviewed for an abuse of discretion. Gall, 552 U.S. at 51.
Nevertheless, significant variations from the Sentencing Guidelines require the
district court to identify significant justifications. Irey, 612 F.3d at 1186–1187.
If an error is not timely objected to, we usually review for plain error.
United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). However, after
imposing a sentence, a district court must give both parties an opportunity to object
to its ultimate findings of fact, conclusions of law, and the manner in which the
sentence was pronounced. United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.
1990) overruled in part on other grounds by United States v. Morrill, 984 F.2d
1136, 1137 (11th Cir. 1993) (en banc). Failure to elicit objections after imposition
of a sentence usually results in vacating and remanding a sentence to allow the
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parties an opportunity to present their objections. Id. at 1103. Merely inquiring
whether there is “anything further?” or “anything else” is insufficient. Campbell,
473 F.3d at 1348. If the record on appeal is sufficient to enable review, remand
may be unnecessary. Id. at 1347. When imposing a sentence for the violation of a
condition of supervised release, there must be some indication that the district
court considered the sentencing range established by the guidelines. Id. at 1348–
49. The Jones rule applies to supervised release revocation proceedings. Id. at
1348. If a Jones violation is found but the record is sufficient to enable review, we
review the legality of the sentence imposed de novo. Id.
The district court did not abuse its discretion by imposing a 24-month
sentence. Player’s argument that the district court was required to renew its offer
of a 14-month sentence is contradicted by the record, which demonstrates that
Player, through counsel, indicated his agreement to having a hearing regarding the
stolen property charge. Player agreed after the district court plainly explained that
holding a new hearing would render the offer of a 14-month sentence with 3 years’
supervised release unavailable. Compare United States v. Jernigan, 341 F.3d
1273, 1290 (11th Cir. 2003) (holding that an affirmative stipulation may invite
error in the case of the admission of evidence). Player offers no meaningful
support for his argument that he should have been provided a later opportunity to
accept the district court’s offer of a 14-month sentence, even given his explicit
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agreement to a new hearing on the stolen property charge. Additionally, an
independent review of the caselaw discloses none. See Mabry v. Johnson, 467
U.S. 504, 511 (1984) overruled on separate grounds by Puckett v. United States,
556 U.S. 129, 138 (U.S. 2009) (holding that a defendant’s acceptance of a
prosecutor’s proposed plea agreement does not create a constitutional right to have
that bargain enforced). Since the party challenging the reasonableness of a
sentence bears the burden of proof, Player’s claim fails. Tome, 611 F.3d at 1378.
Player next argues that the district court’s refusal to impose a 14-month
sentence as opposed to a 24-month sentence was substantively unreasonable. As
Player did not object to the substantive reasonableness of his sentence at the
revocation hearing, we would usually review for plain error. Turner, 474 F.3d at
1275. However, under our ruling in United States v. Jones, the district court was
required to give both parties an opportunity to object to its ultimate findings of
fact, conclusions of law, and the manner in which the sentence was pronounced.
899 F.2d at 1102. The record reflects that the district court did not do so in this
case. The district court did ask if there was “[any]thing that I have missed.”
However, as previously stated, our case law makes clear that such limited inquiries
are insufficient. See Campbell, 473 F.3d at 1348. Such an omission normally
requires vacating and remanding the sentence, see Jones, 899 F.2d at 1103, unless
the record on appeal is sufficient to enable review, Campbell, 473 F.3d at 1347.
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Upon careful review, we hold that the record here is sufficient to not require
vacating and remanding the case. Campbell, 473 F.3d at 1347. In determining
whether the record is sufficient to enable review, one factor we consider is whether
the district court considered the applicable guidelines range. Id. at 1348–49 (“[I]t
is sufficient for there to be some indication that the district court was aware of and
considered the Guidelines, which requires the court to consider the sentencing
range established.”) (quotations and citation omitted). At the first revocation
hearing, the district court specifically articulated the applicable guidelines range
and statutory maximum. The district court did not recalculate the guidelines range
at the second revocation hearing following its finding that Player was guilty of the
stolen property charge. But, the new range and statutory maximum were provided
by the government. Ultimately, the district court sentenced Player in the middle of
the new guidelines range. The record reflects that district court was sufficiently
aware of and considered the applicable guidelines range. Compare Campbell, 473
F.3d at 1348–49.
In addition to the applicable guidelines range, the record also reflects that the
district court considered other relevant § 3553(a) factors. Specifically, court
considered “the nature and circumstances of the offense and the history and
characteristics of the defendant” pursuant to § 3553(a)(1). At the first revocation
hearing, the court noted that Player had “one of the worst records [he had] ever
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seen.” The district court also noted Player’s failure to respond to several
rehabilitative programs in which he participated. Although the district court did
not mention § 3553(a) specifically, it was not required to so long as the record
reflects that the court did indeed consider the other § 3553(a) factors. United
States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). Finally, the record reflects
that the district court heard argument from Player regarding sentencing at the first
revocation hearing. While player did not re-make his sentencing arguments
following the court’s determination that he was guilty of the stolen property
charge, he had the opportunity to do so. These acts create a record sufficient to
avoid the need to vacate and remand. We therefore proceed to review the
reasonableness of Player’s sentence de novo. Id. at 1348.
Player failed to articulate the way in which the court’s refusal to re-extend a
sentencing offer rendered the imposition of a later sentence, based upon a new
charge, is plain error. As explained above, the district court correctly determined
by a preponderance of the evidence that Player knew or had reasonable grounds to
know that the vehicle he drove was stolen. With the addition of the Receiving
Stolen Property charge, the applicable guidelines range increased to 21–27 months.
Player admitted to the initial three offenses for which his supervised release was
revoked and the district court found him guilty of the fourth. While Player did
offer uncontradicted testimony indicating that he used the vehicle to take his wife
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to a doctor’s appointment, the district court also stated that he had “one of the
worst records I have ever seen.” The sentence imposed also fell squarely within
the applicable guidelines range and well below the statutory maximum, two factors
that we ordinarily consider to be indicators of reasonableness. Hunt, 526 F.3d at
746; Gonzalez, 550 F.3d at 1324. On this record, the district court did not err in
imposing a 24-month sentence.
AFFIRMED.
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