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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14109 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cr-00400-MHH-HNJ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRANDON KEITH LECROY,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(July 30, 2020)
Before WILSON, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-14109 Date Filed: 07/30/2020 Page: 2 of 18
Brandon Keith LeCroy appeals the revocation of his supervised release and
resulting 24-month prison sentence. At his revocation hearing, the district court
admitted into evidence hearsay statements regarding LeCroy’s role in a theft. On
appeal, LeCroy argues that because the only evidence of his involvement in the
theft were these unreliable statements, the evidence was insufficient for the district
court to find that he violated the terms of his supervised release. LeCroy also
contends that the district court erred by failing to make a statement as to the
evidence it relied upon and its reasons for revoking his supervised release and that
his sentence was procedurally and substantively unreasonable. After careful
consideration, we affirm.
I. BACKGROUND
LeCroy pled guilty to one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). He received a prison sentence to be followed
by three years of supervised release. As relevant here, the terms and conditions of
LeCroy’s supervised release prohibited him from committing a federal, state or
local crime; purchasing, possessing, using, distributing, or administering any
narcotic or other controlled substance; or associating with any person convicted of
a felony without the permission of his probation officer. The terms and conditions
also required LeCroy to follow his probation officer’s instructions and participate
in a drug and alcohol counseling program.
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LeCroy began serving the supervised release portion of his sentence in April
2019. Less than three months later, his probation officer reported that LeCroy had
been charged with a state theft offense, and the district court held a status
conference. The court, at the recommendation of the probation officer, chose not
to examine the circumstances behind the state theft charge at that time and instead
requested a mental health evaluation for LeCroy.
In September 2019, LeCroy’s probation officer petitioned the court for
revocation of LeCroy’s supervised release, alleging that LeCroy had committed
five violations of the terms of his supervised release. The probation officer alleged
the following violations: (1) LeCroy was arrested for theft of property, in violation
of Alabama Code § 13A-8-3, a class B felony; (2) he tested positive for
methamphetamine and later admitted to using methamphetamine; (3) after he was
identified as the suspect in a stabbing, his probation officer ordered him to report to
the Fyffe Police Department to meet with investigators within 45 minutes, yet
LeCroy did not arrive at the police department until the next day; and (4) officers
from the Fyffe Police Department performed a traffic stop of LeCroy’s car and
determined that one of the car’s passengers was a known convicted felon.
The district court held a revocation hearing on the petition. LeCroy admitted
to violating conditions of his supervised release by using controlled substances
(Violation (2)), failing to follow his probation officer’s instructions (Violation (3)),
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and associating with a known convicted felon who, he explained, was his coworker
(Violation (4)). The government presented evidence to establish that LeCroy had
also violated his supervised release conditions by committing a theft offense
(Violation (1)).1
The government called Chris McIllwain, a detective with the Scottsboro
Police Department, who testified to the following. McIllwain was investigating the
theft of an all-terrain vehicle (“ATV”) that had been reported stolen. A patrol
officer informed McIllwain that he had stopped a man riding a dirt bike with the
last name LeCroy in the area where the ATV had been stolen. The investigation
led McIllwain to LeCroy’s home address, where he discovered a trail in the woods
behind LeCroy’s house that led to the stolen ATV. The ATV had no key in it but
had crossed wires, a condition which, according to McIllwain, was consistent with
the vehicle having been hotwired.
After the ATV was found in the woods behind LeCroy’s house, LeCroy was
asked to come to the police station. When he arrived, he was accompanied by his
13 year-old stepson, C.W. LeCroy admitted that the address where the ATV had
been discovered was his house but stated that he had never seen the ATV and was
1 The government also attempted to establish that LeCroy had committed an assault (the stabbing referenced in Violation (3)); however, the district court found that the government had failed to prove that LeCroy committed the assault. The district court’s finding is not at issue in this appeal, so we do not discuss it further. 4 Case: 19-14109 Date Filed: 07/30/2020 Page: 5 of 18
unaware of its presence behind the house. C.W. was also interviewed. C.W. was
not considered a suspect because McIllwain did not think at his age he would know
how to hotwire a vehicle. C.W.’s interview was conducted without a parent
present and with multiple officers in the room. According to the interview report,
C.W. stated that he and a friend, S.J., were riding dirt bikes when they discovered
the ATV in the woods. The two attempted to find its owner but were unsuccessful.
The ATV’s tires were flat when they found it. After returning home, C.W. told
LeCroy about the ATV and then brought LeCroy and his mother to the location of
the ATV. LeCroy filled the ATV’s tires with air, hotwired it, and drove it back to
his house, where he hid it in the wooded area behind the house.
S.J. had also told his mother, who informed McIllwain, that he and C.W.
discovered the stolen ATV in the woods with flat rear tires and no owner in sight.
At the close of the evidence, LeCroy argued that C.W.’s statements were
problematic because he was interviewed by police officers who knew that C.W.
could have incriminated himself, he did in fact incriminate himself, and he was
interviewed without a parent present. LeCroy argued that these facts raised a
question about the credibility of the statements. LeCroy did not object that
McIllwain’s testimony about what C.W. said in the interview was hearsay. The
district court rejected LeCroy’s arguments. It found that the government had
proven by a preponderance of the evidence that LeCroy had committed “a federal,
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state, or local crime with respect to the ATV incident.” Doc. 53 at 89.2 The court
then found that LeCroy had violated this and other conditions of his supervised
release.
In sentencing LeCroy, the district court noted that the ATV theft constituted
a Grade B violation of the terms of supervised release which, when combined with
LeCroy’s criminal history category of VI and statutory maximum sentence of 24
months, resulted in a guideline revocation range of 21 to 24 months’
imprisonment. The court sentenced LeCroy to 21 months’ imprisonment followed
by three months of supervised release. The court explained that it believed the
sentence was appropriate taking into consideration the guideline computations and
the 18 U.S.C. § 3553(a) factors. The court also stated that the sentence reflected
the nature and circumstances of the violations before the court, as well as LeCroy’s
significant criminal history. LeCroy requested that the court instead sentence him
to 24 months’ imprisonment without a supervised release term. The court
complied and revised its sentence to 24 months’ imprisonment. LeCroy made no
relevant objections.
LeCroy now appeals.
2 Citations in the form “Doc. #” refer to district court docket entries. 6 Case: 19-14109 Date Filed: 07/30/2020 Page: 7 of 18
II. ANALYSIS
LeCroy raises three arguments on appeal. First, he contends that the
government presented insufficient evidence to support the district court’s finding
that he stole the ATV. Second, he argues that the district court erred in failing to
make a statement identifying the evidence it relied upon and its reasons for
revoking his supervised release. Third, he asserts that his sentence was
procedurally and substantively unreasonable. We consider each argument in turn.
A. The District Court Did Not Clearly Err When It Found that LeCroy Had Committed a Theft Offense.
LeCroy first argues that the district court erred in finding that he had
violated the terms of his supervised release by committing a theft offense because
the government failed to prove by a preponderance of the evidence that he
committed the ATV theft. He argues that the only evidence supporting that he
stole the ATV came from C.W.’s statements, and those statements were
insufficient to carry the government’s burden of proof because they were
unreliable hearsay. LeCroy contends that the statements were unreliable because:
(1) C.W. was a minor who was interviewed without a parent present; (2) C.W. was
given no Miranda3 warnings; (3) C.W. could have incriminated, and did in fact
3 Miranda v. Arizona, 384 U.S. 436 (1966). 7 Case: 19-14109 Date Filed: 07/30/2020 Page: 8 of 18
incriminate, himself; and (4) the statements were offered at the revocation hearing
through double hearsay. 4
A district court may revoke a term of supervised release if 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). We review a district court’s
revocation of supervised release for an abuse of discretion. United States v.
Copeland, 20 F.3d 412, 413 (11th Cir. 1994). In reviewing a revocation
proceeding, we are bound by the district court’s findings of fact unless they are
clearly erroneous. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).
First, LeCroy asserts that C.W.’s statements were the only evidence
supporting the district court’s finding that he committed the ATV theft. The
district court, however, heard other testimony from McIllwain, beyond C.W.’s
statements, connecting LeCroy to the theft. McIllwain’s testimony also indicated
that LeCroy had been riding a dirt bike in the area where the ATV was stolen, the
ATV was found in the woods behind LeCroy’s house by following a trail that led
from the house to the ATV, and S.J. had told his mother that he and C.W had
discovered the ATV in the woods, without an owner, and with flat tires. Although
4 Although LeCroy argues in his initial brief that the critical evidence against him— McIllwain’s testimony about C.W.’s statements—was “double hearsay” and “bore no indicia of reliability,” Appellant’s Br. at 1516, he clarifies in his reply brief that he is not asserting a challenge to the admission of the evidence; rather, he is arguing only that the evidence was insufficient to prove that he committed the theft, see Reply Br. at 23. 8 Case: 19-14109 Date Filed: 07/30/2020 Page: 9 of 18
LeCroy suggests that C.W. stole the ATV, McIllwain stated that the fact that the
ATV was hotwired suggested that it was not stolen by C.W., who was 13 years old
and unlikely to know how to hotwire an ATV. It was within the district court’s
discretion as the factfinder to credit McIllwain’s testimony. Jeffries v. United
States, 748 F.3d 1310, 1313 (11th Cir. 2014) (“Because credibility determinations
are the province of the factfinder, we give them substantial deference.” (internal
citation omitted)).
Second, LeCroy argues that C.W.’s statements were unreliable and therefore
insufficient to establish that he stole the ATV. We are unpersuaded. Even though
LeCroy asserts, and McIllwain confirmed, that C.W. was questioned by multiple
police officers without his parents present and without the benefit of Miranda
warnings, LeCroy points to no evidence showing that C.W.’s statements actually
were unreliable because of these circumstances. Similarly, LeCroy offers no
evidence demonstrating that C.W.’s statements were false. In fact, the reliability
of C.W.’s statements are supported by the record, which corroborates his account.
See United States v. Docampo, 573 F.3d 1091, 1098 (11th Cir. 2009) (explaining
that where hearsay statements were corroborated by other evidence in the record,
the hearsay evidence was reliable). C.W. informed officers that he observed
LeCroy hotwire the ATV and take it back to his house before hiding it in the
woods. This account is consistent with McIllwain’s testimony that the ATV was
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discovered hidden behind LeCroy’s house with crossed wires. Because LeCroy
offers no evidence that C.W.’s account was false and C.W.’s statements were
supported by other evidence in the record, we conclude that the district court did
not clearly err in finding that LeCroy committed theft of property and thus violated
one of his supervised release conditions. See Copeland, 20 F.3d at 413; 18 U.S.C.
§ 3583(e)(3).
B. The District Court Did Not Err When It Stated Its Finding that LeCroy Had Violated His Supervised Release Conditions by Committing a Theft.
LeCroy also argues that the district court erred by failing to make a
statement identifying the evidence it relied upon in finding that LeCroy violated
the conditions of his supervised release, as is required by Morrissey v. Brewer,
408 U.S. 471, 489 (1972). The district court’s statements, LeCroy contends, were
merely conclusory and thus insufficient to satisfy Morrissey. The government
disagrees and argues that the district court sufficiently explained its reasoning,
which was supported by the record.
Defendants in revocation proceedings are entitled to due process rights,
though not the full set of trial rights. Morrissey, 408 U.S. at 482. Relevant here,
principles of due process require that a defendant facing revocation of his
supervised release receive a written statement by the factfinder as to the evidence
relied on and the reasons for revocation. See id. at 48889.
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Oral findings can satisfy Morrissey’s requirements when those findings
“create a record sufficiently complete to advise the parties and the reviewing court
of the reasons for the revocation of supervised release and the evidence the
decision maker relied upon.” Copeland, 20 F.3d at 414. Moreover, “general
conclusory reasons . . . do not meet [the] due process requirement that the revoking
judge state the factual findings and the reasons relied upon for revocation.” United
States v. Lacey, 648 F.2d 441, 445 (5th Cir. 1981). When a court has provided
only a conclusory statement about a supervised release violation, Lacey can
nevertheless be satisfied if there was only one incident at issue and “the evidence
and the reasons for revoking supervised release were clear.” United States v.
Johnson, 678 F.3d 1210, 1211 (11th Cir. 2012).
As an initial matter, the parties disagree as to the appropriate standard of
review. LeCroy, citing Federal Rule of Criminal Procedure 51(b), 5 argues that
although he did not object to the district court’s statement, we should review his
claim de novo rather than for plain error because the district court gave him no
opportunity to object. But we need not decide the correct standard here because
LeCroy’s claim fails under either standard.
5 Rule 51(b) provides that “[i]f a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” Fed. R. Crim. P. 51(b). 11 Case: 19-14109 Date Filed: 07/30/2020 Page: 12 of 18
We agree with LeCroy that the district court’s statement was conclusory. In
announcing its finding, the district court stated only that “the United States ha[d]
prove[n] by a preponderance of the evidence the charge from June 25, 2019, that
Mr. LeCroy committed a federal, state, or local crime with respect to the ATV
incident.” Doc. 53 at 89. Despite the conclusory nature of the district court’s
statement, we nonetheless conclude that it satisfied the requirements under
Morrisey and Lacey because, here, as in Johnson, “the evidence and the reasons for
revoking supervised release were clear.” See Johnson, 678 F.3d at 1211.
Although the district court evaluated two potential violations—LeCroy
admitted to all violations of his supervised release conditions except the allegations
that he committed a theft and an assault—the only evidence concerning the theft,
which, unlike the alleged assault, ultimately served as a basis for the revocation,
came from McIllwain’s testimony. The record demonstrates that the court listened
closely to that testimony, clarifying parts of McIllwain’s testimony by asking
questions, and considered the parties’ arguments regarding the theft, interrupting
the government’s argument to clarify with LeCroy what his argument was. On its
own, the district court’s statement appears to be conclusory; however, when
considered in light of the evidence presented as to the theft, the record was
“sufficiently complete to advise the parties and the reviewing court of the reasons
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for the revocation of supervised release and the evidence the decision maker relied
upon.” See Copeland, 20 F.3d at 414.
Accordingly, we reject LeCroy’s argument that the district court erred in
failing to make a statement as to the evidence it relied upon and its reasons for
revoking LeCroy’s supervised release based on the court’s finding that LeCroy
committed a theft offense and the record evidence supporting that finding.
C. The District Court Did Not Impose an Unreasonable Sentence.
LeCroy also asserts that his sentence is both procedurally and substantively
unreasonable. As to procedural reasonableness, LeCroy contends that the district
court failed to properly calculate his guideline range because it erred in finding that
LeCroy had committed a new offense—the ATV theft. As to substantive
reasonableness, LeCroy argues the district court erred because his circumstances
had not materially changed from the time of his status conference and the court did
not provide time for its prior modifications to the terms and conditions of his
supervised release, specifically its mental health evaluation, to take effect before
imposing its sentence.6
6 LeCroy also argued that the court’s sentence was greater than necessary considering the statutory sentencing factors. LeCroy asserted this argument only in one line of his brief. Because a passing reference in a brief without substantive legal argument is insufficient to preserve an issue, LeCroy has abandoned this argument. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). 13 Case: 19-14109 Date Filed: 07/30/2020 Page: 14 of 18
Because we concluded that the district court did not err in finding that
LeCroy committed the ATV theft, we likewise conclude that the district court did
not err when it calculated his guideline range based on the inclusion of the ATV
theft. We thus only address LeCroy’s argument that his sentence was substantively
unreasonable.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard, considering the totality of the circumstances and the
sentencing factors set forth in § 3553(a). Gall v. United States, 552 U.S. 38, 41
(2007). Under § 3553(a), the district court is required to impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes” of
§ 3553(a)(2)—the need to reflect the seriousness of the offense; promote respect
for the law; provide just punishment; deter criminal conduct; protect the public
from the defendant’s future criminal conduct; and effectively provide the
defendant with educational or vocational training, medical care, or other
correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the
nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the applicable guideline range, the
pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
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Although we do not automatically presume a within-guidelines sentence to
be reasonable, ordinarily we expect it to be. United States v. Asante, 782 F.3d 639,
648 (11th Cir. 2015). That a sentence falls at the low end of the guideline range
and well below the statutory maximum are two indications of reasonableness. See
United States v. Cubero, 754 F.3d 888, 898 (11th Cir. 2014).
The party challenging a sentence bears the burden of proving the sentence is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A
district court imposes a substantively unreasonable sentence when it fails to afford
consideration to relevant factors that were due significant weight, gives significant
weight to an improper or irrelevant factor, or 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); see United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.
2006) (explaining that a sentencing court’s “single-minded[ ]” focus on one factor
to the detriment of other relevant sentencing factors “is a symptom of an
unreasonable sentence” (internal quotation marks omitted)).
Although generally the weight to be accorded any § 3553(a) factor is a
matter committed to the sound discretion of the district court, United States v.
Williams, 526 F.3d 1312, 1322 (11th Cir. 2008), a district court commits a clear
error of judgment when it “considers the proper factors but balances them
unreasonably” and imposes a sentence that “does not achieve the purposes of
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sentencing as stated in § 3553(a),” Irey, 612 F.3d at 1189 (internal quotation marks
omitted). We will vacate a sentence 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 lies outside the range of
reasonable sentences dictated by the facts of the case.” Id. at 1190 (internal
quotation marks omitted).
The guideline range for a post-revocation sentence is based on the
classification of the conduct that resulted in the revocation and the criminal history
category applicable during the defendant’s original sentencing. See U.S.S.G.
§§ 7B1.1(a), 7B1.4(a); United States v. Campbell, 473 F.3d 1345, 134849 (11th
Cir. 2007). A Grade B violation for a defendant in criminal history category VI
results in a guideline range of 21 to 27 months’ imprisonment. U.S.S.G.
§ 7B1.4(a). Because the statutory maximum sentence was 24 months’
imprisonment based on LeCroy’s original offense, the resulting guideline range
was 21 to 24 months. See 18 U.S.C. § 3583(e)(3).
LeCroy contends that there were no material changes between his initial
status conference, at which the district court ordered a mental health evaluation,
and his revocation hearing; thus, he argues, the sentence the district court imposed
was substantively unreasonable in light of his need for drug abuse treatment. We
disagree with LeCroy that there were no material changes between his status
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conference and revocation hearing and that the district court did not adequately
consider his need for drug treatment. LeCroy admitted to committing several
violations of his supervised release conditions, in addition to the ATV theft, at his
revocation hearing. Some of these violations, including that he used controlled
substances, failed to follow the instructions of his probation officer, and associated
with a known convicted felon, occurred after his initial status conference.
Moreover, the district court’s decision to sentence LeCroy despite requesting
at his status conference a mental health evaluation for him was not an abuse of
discretion. The court heard arguments from both LeCroy and the government
regarding the § 3553(a) factors, including mitigating factors like LeCroy’s drug
addiction and mental health issues and aggravating factors like LeCroy’s
significant criminal history and disrespect for the law. The court’s choice to place
more weight on the nature and circumstances of the offenses and LeCroy’s
significant criminal history was within its sound discretion. See Williams, 526
F.3d at 1322. Further, the sentence imposed was within the guideline range, which
we ordinarily expect to be reasonable, see Asante, 782 F.3d at 648. Also, the
district court’s initial sentence was for 21 months, at the bottom of the guideline
range, another indicator of reasonableness, Cubero, 754 F.3d at 898. The district
court imposed a sentence at the statutory maximum, 24 months, only upon
LeCroy’s request that the court do so. Accordingly, we cannot conclude that the
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district court abused its discretion because the 24-month prison sentence was
procedurally and substantively reasonable.
AFFIRMED.