United States v. Abraham S. Gutterman

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 21, 2023
• Docket: 22-13795
• Status: Unpublished

Opinion

USCA11 Case: 22-13795 Document: 24-1 Date Filed: 08/21/2023 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 22-13795 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ABRAHAM S. GUTTERMAN, a.k.a. Abe Katz,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20373-CMA-1 USCA11 Case: 22-13795 Document: 24-1 Date Filed: 08/21/2023 Page: 2 of 4

2 Opinion of the Court 22-13795

Before NEWSOM, GRANT, and BRASHER, Circuit Judges. PER CURIAM: Abraham Gutterman appeals his thirty-five-month term of supervised release, imposed on revocation of his original term of supervised release. On appeal, he argues that the district court abused its discretion in imposing a substantively unreasonable sen- tence by failing to properly consider the 18 U.S.C. § 3553(a) factors. We disagree and therefore affirm Gutterman’s sentence. I.

We review the reasonableness of a sentence imposed on rev- ocation of supervised release for abuse of discretion. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). The party chal- lenging the sentence bears the burden to show that the sentence is unreasonable based on the record and the 18 U.S.C. § 3553(a) fac- tors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The district court may revoke a defendant’s term of super- vised release where it finds, by a preponderance of the evidence, that the defendant violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3). Then, after considering the factors in 18 U.S.C. § 3553(a), the court may require a defendant who originally com- mitted a Class C felony, like Gutterman, serve up to “two years in prison,” id., and “three years of supervised release” “less any term of imprisonment” imposed, id. § 3583(b)(2), (h). USCA11 Case: 22-13795 Document: 24-1 Date Filed: 08/21/2023 Page: 3 of 4

22-13795 Opinion of the Court 3

The district court must evaluate all Section 3553(a) factors, but the weight given to each factor is within the court’s sound dis- cretion. United States v. Ramirez-Gonzales, 755 F.3d 1267, 1272 (11th Cir. 2014). And the district court need not “state on the record that it has explicitly considered each of the [Section] 3553(a) factors.” United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). In- stead, the court’s acknowledgment that it considered the Section 3553(a) factors and the parties’ arguments is sufficient. United States v. Taylor, 997 F.3d 1348, 1354−55 (11th Cir. 2021). Without clear error, we will “not reweigh relevant factors,” substituting our judg- ment for that of the district court’s. United States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009). II.

Gutterman’s term of supervised release is reasonable. At the revocation hearing, Gutterman admitted violating a condition of his supervised release. The district court revoked Gutterman’s su- pervised release and acknowledged that the maximum sentence upon revocation was two years’ imprisonment, and three years’ supervised release less the term of imprisonment imposed. It noted that the Guidelines recommended six to twelve months’ imprison- ment. The court listened to argument and recommendations from the government, defense counsel, and Gutterman’s probation of- ficer. For its part, the government recommended one year of su- pervised release including six months in a halfway house. Then, having “considered the statutory factors in this case” and “the rec- ommendations of the parties and probation,” the court sentenced USCA11 Case: 22-13795 Document: 24-1 Date Filed: 08/21/2023 Page: 4 of 4

4 Opinion of the Court 22-13795

Gutterman to time served and thirty-five months’ supervised re- lease, including three months in a halfway house. The court’s acknowledgment that it considered the Section 3553(a) factors and the parties’ arguments suffices. Taylor, 997 F.3d at 1354−55. That the government recommended a shorter period of supervised release does not render the sentence substantively unreasonable. See United States v. Fox, 926 F.3d 1275, 1282 (11th Cir. 2019) (affirming the substantive reasonableness of a sentence above the government’s recommendation). Gutterman is asking this court to reweigh the Section 3553(a) factors, which we must decline. Langston, 590 F.3d at 1237. The district court did not err in weighing the relevant factors, nor is Gutterman’s sentence outside the reasonable range of sentences. Accordingly, the district court did not abuse its discretion in impos- ing a below-guidelines thirty-five-month term of supervised re- lease. III.

We AFFIRM.