United States v. Branden Demontay Green

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 5, 2023
• Docket: 22-13677
• Status: Unpublished

Opinion

USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 1 of 11

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-13677 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRANDEN DEMONTAY GREEN,

Defendant- Appellant.

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 4:13-cr-00028-CDL-MSH-1 ____________________ USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 2 of 11

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Before JORDAN, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: Branden Green appeals his 24-month prison sentence im- posed upon revocation of his term of supervised release. He ar- gues that his sentence, above the applicable advisory sentencing guideline range of 8 to 14 months, is substantively unreasonable. After review of the parties’ briefs and the record, we affirm. I In December of 2013, Mr. Green pled guilty to one count of aiding and abetting in the distribution of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). In fashioning his sentence, the district court varied downward from an applicable guideline range of 151 to 188 months to a sentence of 87-months’ imprison- ment followed by 4 years of supervised release. After his release from custody on August 28, 2020, Mr. Green began to serve his supervised release term in the Northern District of Georgia. But in June of 2022, his probation officer filed a petition with the district court seeking a revocation of supervised release because Mr. Green had violated the terms of his release. The petition alleged that Mr. Green had traveled to Bay County, Florida without the requisite permission and that while he was there, police officers arrested him on charges of sexual battery against a 16-year-old female; the use of a deadly weapon; and pos- session of MDMA. Accordingly, the petition asserted two USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 3 of 11

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violations: the first, a Grade A violation for engaging in unlawful conduct, see U.S.S.G. § 7B1.1(a)(1), and the second, a Grade C vio- lation for leaving the Northern District of Georgia without permis- sion, see § 7B1.1(a)(3). For the two violations, the probation officer’s revocation re- port assigned an overall Grade A classification. This was in accord- ance with § 7B1.1(b). 1 Based on the Grade A classification and a criminal history category of VI, the report noted that the applicable advisory guide- line range was 33 to 41 months, but that because Mr. Green was on supervised release for a Class C felony, his advisory sentence was calculated at the statutory maximum of 24 months, pursuant to 18 U.S.C § 3583(e)(3). At the revocation hearing, the government informed the dis- trict court that Mr. Green agreed to admit to the Grade C violation in exchange for dismissal of the Grade A violation, and that the parties were jointly recommending a sentence at the top of the guideline range of 8 to 14 months for the Grade C violation. The district court stated, however, that it “may not be inclined to sen- tence [Mr. Green] to 14 months” on the Grade C violation and ex- plained to Mr. Green that although the advisory guideline range for

1 Under § 7B1.1(b), “[w] here there is more than one violation of the conditions

of supervision, or the violation includes conduct that constitutes more than one offense, the grade of the violation is determined by the violation having the most serious grade.” USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 4 of 11

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his Grade C violation was 8 to 14 months, it “would be authorized, depending on [its] findings . . . [to] sentence [him] up to 24 months.” See D.E. 59 at 5, 8. When asked whether he understood that he could receive a sentence of up to 24-months’ imprisonment, Mr. Green responded in the affirmative. He thereafter admitted to violating the conditions of his supervised release by traveling to Florida without the permission of his probation officer. The district court granted the government’s motion to dis- miss the Grade A violation and found, based on his admission, that Mr. Green violated the conditions of supervised release as outlined in the petition with respect to the Grade C violation. It then stated that it had considered the applicable guideline range of 8 to 14 months and Mr. Green’s criminal history category of VI, and that it found that an upward variance to the statutory maximum of 24 months’ imprisonment was “appropriate and necessary” under the § 3553(a) sentencing factors. See id. at 12. In explaining its decision, the district court recalled that when Mr. Green was first sentenced, he “was a career offender” who “got a substantial break in his original sentence” and that “he did not take advantage of that break.” See id. at 12–13. Instead, “he demonstrated . . . a complete disregard for the condition of his su- pervised release by leaving the state without obtaining the permis- sion of his probation officer.” See id at 13. The district court further explained that Mr. Green’s “disrespect for the law” and his criminal history required an upward variance to the statutory maximum of 24 months, with no supervised release to follow. See id. Based on USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 5 of 11

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Mr. Green’s history and characteristics, the sentence was “appro- priate,” “complie[d]” with the factors to be considered under 18 U.S.C §§ 3553(a) and 3583(e), and “adequately addresse[d] the total- ity of the circumstances.” See id. Mr. Green objected to the substantive reasonableness of the sentence, arguing that his violation was only a Grade C violation, that it was his first violation in the two years since his release, and that he and the government had agreed to a joint recommendation at the top of the guideline range of 14 months. In response, the district court reiterated its rationale in even more detail, stating: This defendant is a career offender. This defendant was given a substantial break on his original sentence. This defendant should have understood that given his career offender status and the break that he got, that when he was released on supervised release, he should do everything in his power to demonstrate re- spect for the law. That includes following the condi- tions of his supervised release. He should have un- derstood with his criminal history that there are con- sequences to not following the law, that there are con- sequences to not following the rules. And he should, more than any other person, perhaps, have fully un- derstood that he needed to make sure that he com- plied with that law and those conditions in every re- spect. And although it was absolutely clear that the defendant was prohibited from leaving the district without obtaining permission from his probation of- ficer, he, nevertheless, given all of that background, given his criminal history, just determined that he was USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 6 of 11

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going to flout the law and was not going to respect the law and was going to do whatever he wanted to do, so he took off and went to Florida. And for that reason, under all of these circum- stances, the Court finds that the slight upward vari- ance that the Court has made in this particular case of 10 months is absolutely necessary to promote re- spect for the law and to take into consideration the history—criminal history of this defendant before he came into this Court and also the circumstances of his sentence in this Court. And for all of those rea- sons, a 24-month sentence is certainly reasonable in this Court's view and justifies a variance upward even though the guidelines and statute may classify this as a Class C violation, which the Court finds is still a se- rious violation, particularly given the history and cir- cumstances in this particular case. See id. at 15–16. On appeal, Mr. Green argues that the district court imposed a substantively unreasonable sentence by (1) giving primary focus to only two of the § 3553(a) factors—his criminal history and his respect for the law—and by (2) considering his dismissed Grade A violation. II We review the substantive reasonableness of a sentence im- posed upon revocation of supervise release for abuse of discretion, and in doing so, consider the totality of the circumstances. See United States v. King, 57 F. 4th 1334, 1337 (11th Cir. 2023). The party USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 7 of 11

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challenging the sentence bears the burden of establishing that the sentence is unreasonable according to the facts of the case and the § 3553(a) factors. See id. at 1337–78. A A district court abuses its discretion and imposes a substan- tively unreasonable sentence when it “(1) fails to afford considera- tion to relevant [§ 3553(a)] factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal quotation marks omitted). Under this frame- work, we will vacate a sentence as substantively unreasonable “only if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that is outside the range of reasonable sentences dictated by the facts of the case.” United States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020). Where the district court imposes a sentence outside of the guideline range, we do not presume that the sentence is unreason- able and “give due deference to the district court’s decision that the § 3553(a) factors, as a whole, justify the extent of the variance.” See id. When imposing an upward variance, the district court must provide compelling enough justifications to support the degree of the variance. See United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009). B USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 8 of 11

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Mr. Green argues the district court “failed to properly weigh” the § 3553(a) factors by placing “primary focus on only two of the factors,” namely, his criminal history and the need to pro- mote respect for the law. 2 See Appellant’s Br. at 9, 13. He contends that as a result, the district court’s 10-month upward variance to the 24-month statutory maximum was substantively unreasonable. We disagree for two reasons.

2 We note that a district court must consider certain of the § 3553(a) factors

when imposing a prison sentence upon revocation of a defendant’s supervised release. See 18 U.S.C. § 3583(e)(3). The need for the sentence to promote respect for the law, see § 3553(a)(2)(A), is not one of those factors. See §3583(e)(3) (providing that when revoking a term of supervised release and imposing a sentence upon revocation, a district court must consider the factors set forth in §§ 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7)). We have stated that “[t]he text of § 3583(e) does not, however, explicitly forbid a district court from con- sidering § 3553(a)(2)(A).” United States v. Vandergrift, 754 F.3d 1303, 1308 (11th Cir. 2014) (emphasis in original). Whether the district court considered an improper sentencing factor when de- termining a defendant’s sentence raises a question of procedural reasonable- ness. See United States v. Alberts, 859 F.3d 979, 985 (11th Cir. 2017). To the extent Mr. Green challenges the procedural reasonableness of his sentence on the ground that the district court improperly considered the need to promote respect for the law, we review the issue for plain error because he did not ob- ject to the procedural reasonableness of his sentence in the district court. See United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Because no prec- edent from the Supreme Court or this Court, or the language of § 3583(e) di- rectly resolves the issue, we conclude that the district court did not plainly err by considering this factor when sentencing Mr. Green. See Vandergrift, 754 F.3d at 1308–09. USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 9 of 11

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First, a district court’s primary reliance on one or two of the §3553(a) factors does not render a sentence per se unreasonable. See United States v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013) (“[S]ignificant reliance on a single factor does not necessarily render a sentence unreasonable.”). District courts have wide discretion in weighing the factors and therefore, “[are] permitted to attach great weight to one factor over others.” United States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021) (quotation marks and internal citation omitted). We have also held that placing substantial weight on a defendant’s criminal history—especially where, as here, the defend- ant is placed at a criminal history of category VI—is “entirely con- sistent with § 3553(a)” because many of the other factors relate to a defendant’s criminal history. See United States v. Rosales-Bruno, 789 F.3d 1249, 1263 (11th Cir. 2015). Therefore, given Mr. Green’s crim- inal history and the wide discretion given to district courts in weighing the relevant factors when imposing a sentence, we can- not say that the district court abused its discretion in giving greater weight to Mr. Green’s criminal history and the need to promote respect for the law. Second, the district court similarly “has considerable discre- tion in deciding whether the § 3553(a) factors justify a variance and the extent of one that is appropriate.” Shaw, 560 F.3d at 1238 (in- ternal quotation marks omitted). And Mr. Green has not shown that the district court’s 10-month upward variance was otherwise unreasonable. USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 10 of 11

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Though the district court imposed the statutory maximum of 24 months in prison, the variance was only 10 months above the top end of the applicable guideline range of 8 to 14 months and was supported by a sufficient and compelling justification. The dis- trict court explicitly stated that in varying upward it had considered the applicable guideline range for Mr. Green; the Grade C classifi- cation of his violation; the factors under § 3553(a), including Mr. Green’s history and characteristics; and the totality of the circum- stances. In doing so, it particularly noted the fact that (1) Mr. Green is a career offender who was given a substantial break on his origi- nal sentence, and (2) that despite the break and his criminal history, he failed to show respect for the law by blatantly violating the con- ditions of his supervised release. “It is enough when the [district] court considers the defendant’s arguments at sentencing and states that it has taken the § 3553(a) factors into account.” United States v. Isaac, 987 F.3d 980, 995 (11th Cir. 2021) (internal quotation marks omitted). Here, the district court did more than simply state that it had considered the relevant factors and provided compelling jus- tifications for its determination. We are thus satisfied that the dis- trict court adequately considered the § 3553(a) factors and the to- tality of the circumstances in imposing the 10-months upward var- iance. Mr. Green’s additional argument, that the district court im- properly considered the dismissed Grade A violation, lacks merit. Mr. Green speculates that, since his sentence would have been capped at the 24-month statutory maximum had he admitted to the Grade A violation, the district court necessarily took into USCA11 Case: 22-13677 Document: 20-1 Date Filed: 09/05/2023 Page: 11 of 11

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account the dismissed violation when varying upward and sentenc- ing him to 24 months in prison. But the district court explained its reasoning for varying upwards on two separate occasions and both times its reasoning was clear and specific. Notably, the district court at no point mentioned the alleged Grade A violation or the facts surrounding it. We therefore reject Mr. Green’s claim as lack- ing support in the record. III We affirm Mr. Green’s sentence. AFFIRMED.