United States v. Gabriel Bush

Opinion

Case: 19-10741 Date Filed: 11/04/2019 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10741 Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cr-00004-TFM-B-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL BUSH,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(November 4, 2019)

Before BRANCH, GRANT, and FAY, Circuit Judges.

PER CURIAM: Case: 19-10741 Date Filed: 11/04/2019 Page: 2 of 11

Gabriel Bush appeals the 24-month term of imprisonment imposed

following the third revocation of his supervised release. On appeal, Bush does not

challenge the revocation of his supervised release but argues that his 24-month

sentence is procedurally and substantively unreasonable. We disagree and affirm.

I.

In 2013, Bush pleaded guilty to one count of access device fraud, in

violation of 18 U.S.C. § 1029(a)(2) (a Class C felony). The district court

sentenced him to five years’ probation and ordered him to make restitution in the

amount of $11,200. Less than four years later, the court found Bush to be in

violation of his probation and sentenced him to 3 months’ imprisonment followed

by 24 months’ supervised release. Just over a year after receiving his new

sentence, Bush violated the terms of his supervised release again, by testing

positive for cocaine, failing to report to his probation officer as required, and

purchasing a car with an altered driver’s license and failing to return the car once

the dealership discovered that he was ineligible for financing. The district court

revoked Bush’s supervised release and sentenced him to 10 months’ imprisonment

followed by 23 months’ supervised release.

In early 2019, Bush’s probation officer filed a petition for an arrest warrant,

alleging that Bush had violated his supervised release by (1) testing positive for

cocaine five times between October 9, 2018, and January 22, 2019; (2) leaving the

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judicial district (the southern district of Alabama) without permission; (3) changing

his residence without notifying the probation officer; (4) incurring new credit

charges without approval; (5) committing a state crime; and (6) failing to pay

restitution.

As to the second, fourth, and fifth violations, the petition alleged that Bush

had traveled to Ocean Springs, Mississippi, where he and his wife purchased a

Dodge Durango, mostly on credit. According to the owner of the car dealership,

Bush used the Social Security number of a dead man to obtain the car loan. He

also informed the dealership that he received $2,714.96 each month in veterans’

benefits, when in fact he received $246 per month. Bush had not made any

payments on the car loan since he purchased the Durango two months earlier.

When asked about the purchase, Bush told the probation officer that he was just the

co-signer. The petition stated that Bush had been charged in Mississippi with the

crime of “taking away of a motor vehicle” in connection with his fraudulent loan

application and failure to make loan payments.

At the revocation hearing, Bush admitted to all the allegations in the warrant

petition, except the allegation that he had been charged with a state crime—he

argued that authorities in Mississippi had not actually charged him with a crime,

although the investigation report indicated that he would be charged. After hearing

testimony from the owners of the car dealership, an officer of the Mississippi

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police department investigating the alleged crime (who said that he had prepared a

warrant for Bush’s arrest but was awaiting the outcome of the revocation hearing

before serving it), and Bush (who admitted that he had purchased the vehicle

jointly with his wife but testified that he had used his business tax identification

number, not a false Social Security number, to apply for financing), the district

court found that the allegations in the petition were “supported by more than ample

evidence” and that Bush had therefore violated the terms and conditions of his

supervision. The court revoked Bush’s supervised release and imposed a sentence

of 24 months’ imprisonment—the maximum allowed by law—with no further

supervised release to follow.

Before imposing sentence, the district court called the government’s

witnesses to the jury box and apologized that someone under court supervision had

committed another crime that had affected them directly. The court assured them

that it took “very seriously” the conditions imposed as part of supervised release

and the violation of those conditions.

The court then addressed Bush and told him that it did not credit his

testimony that he had not used a false Social Security number on the loan

application, but even if his testimony was true, he had still violated the conditions

of his release by going to Mississippi and obtaining the car loan. The court

explained its 24-month sentence by stating that “I think allowing somebody who

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has your record to test positive this many times and then engage in further

violations, felony violations of the law, it would just be completely irresponsible to

not give you the maximum sentence that the law allows.” The court further stated

that it was “a shame” that state prosecutors sometimes chose not to bring a case

against a defendant once his federal supervised release was revoked. The court

explained that, by violating the law while he was on supervised release, Bush was

“basically spitting on that release and the law again. And those two things ought to

be punished separately, in my opinion. And as long as I sit on the bench, they will,

when it’s a person under my supervision.”

The court then stated that it had “considered the chapter seven provisions of

the sentencing guidelines, the Sentencing Reform Act of 1984,” and the § 3553(a)

sentencing factors. The court explained that it considered the applicable

Guidelines imprisonment range to be “ineffective to impose the proper amount of

punishment.” After imposing sentence and hearing Bush’s objections, the court

further stated that “this was in my opinion an inadequate sentence, but it’s all I

could do, based on what the law allows. If I could give you more time, I would. I

feel, based upon Mr. Bush’s sentence, he’s been granted too much leniency. Mr.

Bush is a man who I don’t think the truth is in him and he’s somebody who

punishment is the only thing the Court can do.”

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Bush now appeals his sentence, arguing that the district court improperly

considered retribution, as embodied in 18 U.S.C. § 3553(a)(2)(A), in determining

the length of his post-revocation sentence. He also argues that the court failed to

consider his need for drug treatment under 18 U.S.C. § 3553(a)(2)(D).

II.

We review the sentence imposed by the district court upon the revocation of

supervised release for reasonableness, using an abuse-of-discretion standard. See

United States v. Trailer, 827 F.3d 933, 935 (11th Cir. 2016) (per curiam); United

States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). “The party

challenging the sentence bears the burden of showing that it is unreasonable.”

Trailer, 827 F.3d at 936. In reviewing a sentence for reasonableness, we first

determine whether the district court committed any significant procedural error—

by, for example, considering an improper sentencing factor. See Trailer, 827 F.3d

at 936; Vandergrift, 754 F.3d at 1308. Then we review the sentence for

substantive reasonableness, “in light of the totality of the circumstances and the

§ 3553(a) factors.” Trailer, 827 F.3d at 936.

III.

When a term of supervised release is imposed as part of a defendant’s

sentence, district courts have discretionary authority to terminate, modify, extend,

or revoke the term of supervised release, or to impose partial home confinement,

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under specified circumstances. See 18 U.S.C. § 3583(e). Before exercising this

discretion, courts are required to consider specific § 3553(a) sentencing factors: the

nature and circumstances of the offense and the history and characteristics of the

defendant, § 3553(a)(1); the need for deterrence, protection of the public, and

correctional treatment, § 3553(a)(2)(B)–(D); the applicable Sentencing Guidelines

and policy statements, § 3553(a)(4)–(5); the need to avoid sentencing disparities,

§ 3553(a)(6); and the need to provide restitution to any victims, § 3553(a)(7).

Notably omitted from this list is § 3553(a)(2)(A), which instructs courts initially

imposing sentence to consider the need for the sentence imposed “to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense.” This Court has not yet decided whether this omission

effectively prohibits the consideration of that sentencing factor in discretionary

revocations, and other circuits are split on the issue. See Vandergrift, 754 F.3d at

1308 (detailing the circuit split and holding that the district court’s consideration of

the omitted factor was not plain error). But we need not answer that question

today, because the revocation of Bush’s supervised release was not discretionary.

Where, as here, a defendant “tests positive for illegal controlled substances

more than 3 times over the course of 1 year,” the district court “shall revoke the

term of supervised release and require the defendant to serve a term of

imprisonment” within certain statutory limits. 18 U.S.C. § 3583(g)(4) (emphasis

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added). If the offense that resulted in the term of supervised release is a Class C or

D felony (as Bush’s was), a district court imposing a prison sentence after a

mandatory revocation of supervised release may not impose a sentence of more

than 24 months’ imprisonment. See id. § 3583(g) (cross-referencing 18 U.S.C.

§ 3583(e)(3)). The mandatory-revocation section of the supervised release statute

does not contain any reference to the § 3553 sentencing factors. See generally id.

We have interpreted this distinction to mean that when the mandatory-revocation

provisions apply, “the statute does not require consideration of the § 3553(a)

factors.” United States v. Brown, 224 F.3d 1237, 1241 (11th Cir. 2000) (emphasis

in the original) (citation omitted), abrogated in part on other grounds by Tapia v.

United States, 564 U.S. 319, 327–28 (2011). The converse must also be true—that

is, the mandatory-revocation statute does not prohibit consideration of any of the

§ 3553(a) factors, either. Consequently, if the district court failed to consider

Bush’s need for correctional treatment under § 3553(a)(2)(D) or considered the

sentencing factors referenced in § 3553(a)(2)(A) in determining the appropriate

length of imprisonment, it did not err in doing so.*

* The district court stated that it had considered “the statutory sentencing factors that are set out at 18 U.S. Code section 3553(a).” And although it indicated that “the proper amount of punishment” was also a consideration, the court made it perfectly clear that its sentence was intended to punish Bush’s repeated violations of the conditions of his supervised release, as a separate matter from whether one or more of the violations also constituted a state or federal offense. 8 Case: 19-10741 Date Filed: 11/04/2019 Page: 9 of 11

Furthermore, even assuming that the court considered “the seriousness of the

offense” and the need “to promote respect for the law, and to provide just

punishment for the offense,” and even if that consideration were error, any such

error would be harmless because the district court made it clear that it would have

imposed the same sentence in the absence of such considerations. See Williams v.

United States, 503 U.S. 193, 203 (1992) (providing that “in determining whether a

remand is required under § 3742(f)(1), a court of appeals must decide whether the

district court would have imposed the same sentence had it not relied upon the

invalid factor or factors”). Specifically, the court stated that given Bush’s history

of repeated violations and the number of times he had tested positive for cocaine

while on release, “it would just be completely irresponsible to not give [him] the

maximum sentence that the law allows.” And because we conclude, as discussed

below, that Bush’s 24-month sentence was substantively reasonable, “it would

make no sense to set aside this reasonable sentence and send the case back to the

district court since it has already told us that it would impose exactly the same

sentence, a sentence we would be compelled to affirm.” United States v. Keene,

470 F.3d 1347, 1350 (11th Cir. 2006).

IV.

We review the substantive reasonableness of a sentence for an abuse of

discretion, which means that we will reverse only if we are “left with the definite

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and firm conviction that the district court arrived at a sentence falling outside the

range of reasonable sentences.” United States v. McQueen, 727 F.3d 1144, 1156

(11th Cir. 2013).

If the sentence is a variance from the advisory Sentencing Guidelines range,

as it is here, the district court must provide a justification that is “sufficiently

compelling to support the degree of the variance.” United States v. Irey, 612 F.3d

1160, 1196 (11th Cir. 2010) (en banc) (quoting Gall v. United States, 552 U.S. 38,

50 (2007)). In the revocation context, however, the Guidelines “are merely

advisory, and it is enough that there is some indication the district court was aware

of and considered them.” United States v. Aguillard, 217 F.3d 1319, 1320 (11th

Cir. 2000) (per curiam).

Chapter 7 of the Sentencing Guidelines, which contains policy statements,

governs sentencing following violations of supervised release. See, e.g., U.S.S.G.

§ 7B1.4 (providing recommended ranges of imprisonment applicable upon

revocation). Here, the district court specifically stated that it had considered

Chapter 7 of the Guidelines, and it explained its upward variance by pointing to

Bush’s numerous positive drug-test results and repeated violations of the

conditions of his supervised release. Given that Bush had not been deterred from

violating his supervised release conditions by two previous, shorter terms of

imprisonment, and that he continued to engage in fraudulent transactions despite

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being given second and third chances at supervised release, the district court did

not abuse its discretion in imposing the statutory maximum sentence of 24 months’

imprisonment. Bush’s sentence is substantively reasonable.

AFFIRMED.