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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15006
Non-Argument Calendar
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D.C. Docket No. 4:10-cr-00059-HLM-WEJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES LAMAR THOMAS,
a.k.a. Chugalug Thomas,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
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(March 23, 2017)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Charles Lamar Thomas appeals the 10-year term of supervised release he
received from the district court for violating the conditions of his previous term of
supervised release. After careful review, we affirm.
I.
In 2010, a grand jury indicted Thomas on one count of failing to register as a
sex offender in violation of 18 U.S.C. § 2250(a). Thomas pleaded guilty to this
count in 2011. According to the presentence investigation report (“PSR”), on
October 13, 2010 the Bartow County Sheriff’s Office confirmed Thomas had never
updated his registration to reflect his 2008 move from Wisconsin to Georgia,
which he was required to do by § 2250(a). Thomas was taken into custody later
that day. After being read his Miranda rights, Thomas confirmed he had moved to
Georgia in November 2008.
The PSR also said Thomas was first required to register as a sex offender
following his 1983 conviction for first-degree sexual assault in Wisconsin, for
which he was sentenced to 10-years imprisonment. After Thomas was released,
his parole was revoked four times for violations that included contact with minors,
leaving Wisconsin without a permit, and absconding. In 2000, Thomas was
convicted of third-degree sexual assault, robbery, and false imprisonment. He was
released after serving six years in prison, but his parole was revoked three times
after his release.
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For his 2011 conviction, Thomas was sentenced to 7-months imprisonment,
to run concurrently with a Kenosha County Circuit Court sentence that was also
imposed in 2011. He also received 10 years of supervised release. The conditions
of Thomas’s supervised release included a provision requiring him to comply with
the Sex Offender Registration and Notification Act (“SORNA”). 42 U.S.C. §
16911 et seq. He was also required to notify his probation officer within 72 hours
of changing his residence. After completing his prison sentence, Thomas began
his supervised release term in 2012.
In 2014, Thomas’s federal probation officer filed a petition to revoke
Thomas’s supervised release. The petition sought revocation on the grounds that
Thomas: (1) moved his residence from Bartow County to Floyd County, Georgia
on May 21, 2014 without notifying either county’s sheriff’s department or his state
or federal probation officers, in violation of O.C.G.A. § 42-1-12 and 18 U.S.C. §
3583(d); (2) failed to follow his probation officer’s instructions; (3) failed to
maintain employment; (4) failed to notify his probation officers within 72 hours of
changing his residence; (5) failed to abide by a special condition of his sex
offender compliance contract; and (6) associated with a convicted felon without
permission. The petition mentioned that the Bartow County Sheriff’s Department
issued a warrant for Thomas’s arrest on May 28, 2014 because he violated
Georgia’s Sex Offender Registry statute, O.C.G.A. § 42-1-12. It also said
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Thomas’s federal probation officer had issued written reprimands to Thomas on
three separate occasions in 2013 and 2014.
At Thomas’s revocation hearing on July 5, 2016, the government said it was
primarily proceeding on the allegation that Thomas failed to notify state and
federal law enforcement and his probation officers when he moved from Bartow
County to Floyd County. 1 Thomas acknowledged that he pleaded guilty to a
related state offense in Bartow County arising out his failure to notify state
officials of his move, and he expressly declined to dispute that he violated the law.
For that state conviction, he was given a 15-year sentence that included a 2-year
prison sentence. After completing the 2-year prison sentence, Thomas was
transferred to federal custody for the proceeding that resulted in this appeal.
Thomas argued there were “significantly mitigating aspects” of his failure to
notify officials of his move. He said he had been evicted from an extended-stay
motel in Bartow County where he was living because he could not pay the rent, so
his wife took him to the neighboring Floyd County in an attempt to find him a
place in a homeless shelter. He also noted that he still had to serve 13 years of
probation on his state conviction in addition to the remainder of his 10-year
supervised release term in the federal system. Finally, Thomas said he had
significant health problems, including asthma, emphysema, and congestive heart
1
The government said it was not pursuing revocation on the allegation that Thomas
failed to maintain employment.
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failure, and was not receiving proper treatment at his current place of confinement.
The government responded that the court should revoke Thomas’s
supervised release and impose an 18-month prison sentence followed by an
additional 10 years of supervised release. Thomas replied that his violations were
not blatant or willful, and were instead driven by his need to find a place to stay
after he was evicted. Thomas’s wife also testified in corroboration of his account.
Kathy Shields, Thomas’s supervising probation officer during the events relevant
to this revocation petition, testified for the government. Shields said she conducted
a home visit at the hotel where Thomas was living on May 21, 2014. According to
Shields, Thomas told her he would be not be able to continue living at the hotel,
but he did not tell her that he had to leave immediately or that he would become
homeless. Shields instructed Thomas to report to her office the following day if he
could not find another place to live, but he never did. After Shields’s testimony,
Thomas addressed the court, acknowledging that he had committed the violations
raised in the revocation petition and apologizing for his actions.
The district court found Thomas guilty of violating the terms of his
supervised release. It sentenced Thomas to (1) a 12-month term of imprisonment,
to be served consecutively to his state sentence; and (2) 10 years of supervised
release following his prison sentence. The district court said it had considered the
provisions of 18 U.S.C. § 3553(a) to determine Thomas’s sentence, including (1)
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“the nature and circumstances of the offense”; (2) “the history and characteristics
of the defendant”; (3) “the need for the sentence imposed to reflect the seriousness
of the offense and to promote respect for the law and to provide just punishment
for the offense”; and (4) “the need for the defendant to receive medical treatment
and other correctional treatment.” Thomas objected to the substantive
reasonableness of his sentence.
II.
On appeal, Thomas argues the district court abused its discretion by ordering
him to serve an additional 10 years of supervised release. He says this new term of
supervised release is not substantively reasonable in light of the record and the
factors set forth in 18 U.S.C. § 3553(a).
When a district court revokes a defendant’s supervised release and imposes a
new sentence, we review the sentence for reasonableness. United States v.
Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008) (per curiam). The
party that challenges the sentence bears the burden of showing the sentence is
unreasonable. United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). We
examine whether a sentence is substantively reasonable in light of the totality of
the circumstances. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007).
Under 18 U.S.C. § 3583(h):
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When a term of supervised release is revoked and the defendant is
required to serve a term of imprisonment, the court may include a
requirement that the defendant be placed on a term of supervised
release after imprisonment. The length of such a term of supervised
release shall not exceed the term of supervised release authorized by
statute for the offense that resulted in the original term of supervised
release, less any term of imprisonment that was imposed upon
revocation of supervised release.
18 U.S.C. § 3583(h). The permissible range of supervised release for failing to
register as required by SORNA is five years to life. See id. § 3583(k).
A district court must consider certain factors set forth in 18 U.S.C. § 3553(a)
when it determines a defendant’s sentence upon revocation of supervised release.
Id. § 3583(e)(3). These factors include: (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant”; (2) the need for the
sentence imposed to deter criminal conduct; (3) the need to protect the public from
further crimes of the defendant; (4) the need to provide the defendant with
education or vocational training, medical care or other correctional treatment in the
most effective manner; (5) the applicable guideline range; (6) pertinent policy
statements; (7) the need to avoid unwarranted sentence disparities among
defendants with similar records; and (8) the need to provide restitution to any
victims of the offense. Id. § 3553(a). “[T]he district court does not need to discuss
or state each factor explicitly.” United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008) (per curiam). “An acknowledgment the district court has
considered the defendant's arguments and the § 3553(a) factors will suffice.” Id.
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The weight given to any specific § 3553(a) factor is committed to the
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). However, a district court abuses its discretion when it (1) fails to consider
all factors that were due significant weight; (2) gives an improper or irrelevant
factor significant weight; or (3) commits a clear error of judgment by balancing the
proper factors unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (en banc). Unjustified reliance upon any one of the § 3553(a) factors may
also indicate an unreasonable sentence. See United States v. Crisp, 454 F.3d 1285,
1292 (11th Cir. 2006). On the other hand, the fact that a sentence is well below the
statutory maximum penalty suggests that the sentence is reasonable. See
Gonzalez, 550 F.3d at 1324 (holding that a sentence was reasonable in part because
it was well below the statutory maximum).
In this case, Thomas has failed to demonstrate that his sentence is
substantively unreasonable. First, the statutory maximum punishment Thomas
faced for his failure to register as a sex offender was lifetime supervision, so the
fact that his actual term of supervised release (10 years) fell well below the
statutory maximum penalty (life) indicates that his sentence was reasonable. See
Gonzalez, 550 F.3d at 1324; 18 U.S.C. § 3583(k). Second, Thomas’s term of
supervised release meets the goals encompassed within § 3553(a). See 18 U.S.C. §
3583(e)(3). Thomas’s criminal history reveals repeated violations during his
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earlier terms of parole, resulting in revocation of his parole at least seven times.
Further, before his supervised release was revoked in this case, Thomas’s federal
probation officer had reprimanded him on three separate occasions. Beyond that,
Thomas has a number of convictions for failing to comply with sex offender
registration requirements. This record suggests a need for long-term supervision.
Finally, although the district court arguably weighed Thomas’s repeated criminal
conduct more heavily than his mitigating circumstances, the weight given to each
of these factors was within the district court’s discretion. See Clay, 483 F.3d at
743. As a result, the district court did not abuse its discretion by sentencing
Thomas to 10 years of supervised release.
AFFIRMED.
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