USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-12471 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FERRELL WALKER,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:07-cr-00030-HL-TQL-1 ____________________ USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 2 of 7
2 Opinion of the Court 21-12471
Before LUCK, LAGOA, and ANDERSON, Circuit Judges. PER CURIAM: Ferrell Walker appeals his sentence of imprisonment for vi- olating conditions of his supervised release. He argues that the dis- trict court violated his right against double jeopardy because the conduct that formed the basis of the sentence also formed the basis of a separate prosecution. He argues in the alternative that the sen- tence is unreasonable. Because the first argument is foreclosed by precedent and the second is unsupported by the record, we affirm. I.
In 2007, Walker pleaded guilty to one count of possessing child pornography. During the term of supervised release included in his sentence, the government searched his home and discovered a cell phone containing more than one thousand images of child pornography, a photograph of his driver’s license, a nude photo- graph that he had taken of himself, and a sexually explicit messag- ing thread with photographs of Walker’s face and unidentified male genitalia. Upon finding that Walker violated conditions of his supervised release by possessing these materials, the district court revoked his supervised release and sentenced him to sixty months’ imprisonment, the statutory minimum under section 3583(k), fol- lowed by twenty-five years’ supervised release. In a separate crim- inal action, Walker was convicted of possessing child pornography and was sentenced to 168 months’ imprisonment and a lifetime USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 3 of 7
21-12471 Opinion of the Court 3
term of supervised release to be served consecutively and concur- rently with his revocation sentence, respectively. Walker appealed both sentences. After consolidating the cases, we affirmed his sentence for possession but remanded his revocation sentence on ex post facto grounds because the sixty- month mandatory minimum provision of section 3583(k) was not in effect when Walker was sentenced in 2007. On remand, the dis- trict court resentenced Walker under section 3583(e)(3)—the stat- ute in effect in 2007—to the statutory maximum sentence of twenty-four months’ imprisonment followed by twenty-five years’ supervised release. Walker appeals the district court’s revocation sentence. First, he argues that, under Haymond,1 the district court violated the Double Jeopardy Clause by basing his revocation sentence on the same set of facts used in his prosecution for possessing child pornography. Second, he argues that his statutory maximum sen- tence is substantively unreasonable. II.
We review “claims of double jeopardy de novo.” United States v. Campo, 840 F.3d 1249, 1267 (11th Cir. 2016) (emphasis omitted). The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy
1 United States v. Haymond, 139 S. Ct. 2369 (2019). USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 4 of 7
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of life or limb.” U.S. Const. amend. V. “This guarantees against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). Walker argues that his sentences were based on “the same conduct” and thus “he was twice placed in jeopardy and twice pun- ished for the same offense . . . in violation of the Fifth Amend- ment.” He bases this argument on the proposition that “[t]he facts in Haymond are almost identical to the facts presented in [this] case.” However “identical” the facts of these cases may be, the cor- responding law is dissimilar. Haymond dealt only with section 3583(k), under which Walker originally was sentenced for violating the conditions of his supervised release. See 139 S. Ct. at 2386 (Breyer, J., concurring). But Haymond did not disturb our prece- dent that a sentence for violating supervised release under section 3583(e)(3), under which Walker was resentenced, doesn’t violate the Double Jeopardy Clause because it isn’t a successive punish- ment for the same offense but rather is a part of the penalty for the initial offense. See Johnson v. United States, 529 U.S. 694, 700 (2000); United States v. Woods, 127 F.3d 990, 992–93 (11th Cir. 1997). Haymond has no bearing on this case. See 139 S. Ct. at 2383 (plurality opinion) (“As we have emphasized, our decision is lim- ited to [section] 3583(k) . . . and the Alleyne problem raised by its [five]-year mandatory minimum term of imprisonment.”). USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 5 of 7
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III.
We review a “sentence imposed upon the revocation of su- pervised release for reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). To this end, we must ensure that the district court didn’t commit a “significant pro- cedural error,” Gall v. United States, 552 U.S. 38, 51 (2007), “fail[] to afford consideration to relevant factors that were due significant weight, give[] significant weight to an improper or irrelevant fac- tor, or commit[] a clear error of judgment in considering the proper factors,” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (cleaned up). “On appeal, [Walker] bears the burden to show that his sen- tence is unreasonable.” United States v. Carpenter, 803 F.3d 1224, 1232 (11th Cir. 2015). “Given the broad sentencing discretion that district courts have,” United States v. Rosales-Bruno, 789 F.3d 1249, 1261 (11th Cir. 2015), we do not overturn a sentencing decision un- less we are “left with the definite and firm conviction that the dis- trict court committed a clear error of judgment . . . by arriving at a sentence that lies outside the range of reasonable sentences dic- tated by the facts of the case,” Irey, 612 F.3d at 1190 (internal quo- tation omitted). Walker hasn’t carried his burden to show such “clear error of judgment.” He doesn’t argue that the district court committed any procedural error. Instead, he argues only that “the applicable [guidelines] range of imprisonment is [four] to [ten] months.” USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 6 of 7
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But the record lacks any indication that the district court failed to treat the guidelines as advisory, selected a sentence based on clearly erroneous facts, or failed to explain the chosen sentence adequately.
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USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-12471 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FERRELL WALKER,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:07-cr-00030-HL-TQL-1 ____________________ USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 2 of 7
2 Opinion of the Court 21-12471
Before LUCK, LAGOA, and ANDERSON, Circuit Judges. PER CURIAM: Ferrell Walker appeals his sentence of imprisonment for vi- olating conditions of his supervised release. He argues that the dis- trict court violated his right against double jeopardy because the conduct that formed the basis of the sentence also formed the basis of a separate prosecution. He argues in the alternative that the sen- tence is unreasonable. Because the first argument is foreclosed by precedent and the second is unsupported by the record, we affirm. I.
In 2007, Walker pleaded guilty to one count of possessing child pornography. During the term of supervised release included in his sentence, the government searched his home and discovered a cell phone containing more than one thousand images of child pornography, a photograph of his driver’s license, a nude photo- graph that he had taken of himself, and a sexually explicit messag- ing thread with photographs of Walker’s face and unidentified male genitalia. Upon finding that Walker violated conditions of his supervised release by possessing these materials, the district court revoked his supervised release and sentenced him to sixty months’ imprisonment, the statutory minimum under section 3583(k), fol- lowed by twenty-five years’ supervised release. In a separate crim- inal action, Walker was convicted of possessing child pornography and was sentenced to 168 months’ imprisonment and a lifetime USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 3 of 7
21-12471 Opinion of the Court 3
term of supervised release to be served consecutively and concur- rently with his revocation sentence, respectively. Walker appealed both sentences. After consolidating the cases, we affirmed his sentence for possession but remanded his revocation sentence on ex post facto grounds because the sixty- month mandatory minimum provision of section 3583(k) was not in effect when Walker was sentenced in 2007. On remand, the dis- trict court resentenced Walker under section 3583(e)(3)—the stat- ute in effect in 2007—to the statutory maximum sentence of twenty-four months’ imprisonment followed by twenty-five years’ supervised release. Walker appeals the district court’s revocation sentence. First, he argues that, under Haymond,1 the district court violated the Double Jeopardy Clause by basing his revocation sentence on the same set of facts used in his prosecution for possessing child pornography. Second, he argues that his statutory maximum sen- tence is substantively unreasonable. II.
We review “claims of double jeopardy de novo.” United States v. Campo, 840 F.3d 1249, 1267 (11th Cir. 2016) (emphasis omitted). The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy
1 United States v. Haymond, 139 S. Ct. 2369 (2019). USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 4 of 7
4 Opinion of the Court 21-12471
of life or limb.” U.S. Const. amend. V. “This guarantees against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). Walker argues that his sentences were based on “the same conduct” and thus “he was twice placed in jeopardy and twice pun- ished for the same offense . . . in violation of the Fifth Amend- ment.” He bases this argument on the proposition that “[t]he facts in Haymond are almost identical to the facts presented in [this] case.” However “identical” the facts of these cases may be, the cor- responding law is dissimilar. Haymond dealt only with section 3583(k), under which Walker originally was sentenced for violating the conditions of his supervised release. See 139 S. Ct. at 2386 (Breyer, J., concurring). But Haymond did not disturb our prece- dent that a sentence for violating supervised release under section 3583(e)(3), under which Walker was resentenced, doesn’t violate the Double Jeopardy Clause because it isn’t a successive punish- ment for the same offense but rather is a part of the penalty for the initial offense. See Johnson v. United States, 529 U.S. 694, 700 (2000); United States v. Woods, 127 F.3d 990, 992–93 (11th Cir. 1997). Haymond has no bearing on this case. See 139 S. Ct. at 2383 (plurality opinion) (“As we have emphasized, our decision is lim- ited to [section] 3583(k) . . . and the Alleyne problem raised by its [five]-year mandatory minimum term of imprisonment.”). USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 5 of 7
21-12471 Opinion of the Court 5
III.
We review a “sentence imposed upon the revocation of su- pervised release for reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). To this end, we must ensure that the district court didn’t commit a “significant pro- cedural error,” Gall v. United States, 552 U.S. 38, 51 (2007), “fail[] to afford consideration to relevant factors that were due significant weight, give[] significant weight to an improper or irrelevant fac- tor, or commit[] a clear error of judgment in considering the proper factors,” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (cleaned up). “On appeal, [Walker] bears the burden to show that his sen- tence is unreasonable.” United States v. Carpenter, 803 F.3d 1224, 1232 (11th Cir. 2015). “Given the broad sentencing discretion that district courts have,” United States v. Rosales-Bruno, 789 F.3d 1249, 1261 (11th Cir. 2015), we do not overturn a sentencing decision un- less we are “left with the definite and firm conviction that the dis- trict court committed a clear error of judgment . . . by arriving at a sentence that lies outside the range of reasonable sentences dic- tated by the facts of the case,” Irey, 612 F.3d at 1190 (internal quo- tation omitted). Walker hasn’t carried his burden to show such “clear error of judgment.” He doesn’t argue that the district court committed any procedural error. Instead, he argues only that “the applicable [guidelines] range of imprisonment is [four] to [ten] months.” USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 6 of 7
6 Opinion of the Court 21-12471
But the record lacks any indication that the district court failed to treat the guidelines as advisory, selected a sentence based on clearly erroneous facts, or failed to explain the chosen sentence adequately. The district court articulated the section 3553(a) fac- tors used to support its sentence, including the need “to reflect the seriousness of the offense, to promote respect for the law, to pro- vide just punishment for the violation offenses, and to protect the public from further crimes of” Walker. It noted that Walker was “intentionally deceptive” about his “possession and use of inter- net[-]capable devices which allowed [him] to commit further crimes of possession of child pornography.” It heard the parties’ arguments at length and explicitly stated that it considered the ad- visory guidelines range and the totality of the circumstances. The record therefore shows that the district court “considered the par- ties’ arguments and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority.” United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (internal quotation omitted). As to supervised release, for a defendant convicted for pos- sessing child pornography, such as Walker, a district court may im- pose “any term of years or life” under section 3583(k). 2 Walker’s twenty-five-year term of supervised release, which is well below
2 Unlike the sixty-month mandatory minimum, this provision was in effect in 2007 and was unaffected by Haymond. See 139 S. Ct. at 2379 n.4 (“Because we hold that this mandatory minimum rendered Mr. Haymond’s sentence un- constitutional . . . we need not address the constitutionality of the statute's ef- fect on his maximum sentence under Apprendi.” (citations omitted)). USCA11 Case: 21-12471 Document: 28-1 Date Filed: 01/06/2023 Page: 7 of 7
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this statutory maximum, is reasonable for all the reasons the dis- trict court gave under section 3553(a). See United States v. Gonza- lez, 550 F.3d 1319, 1324 (11th Cir. 2008). CONCLUSION
Binding precedent forecloses Walker’s argument that his revocation sentence violated his right against double jeopardy, and the record does not support his argument that it is unreasonable. Thus, we affirm the sentence. AFFIRMED.