USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12264 Non-Argument Calendar ________________________
D.C. Docket No. 8:19-cr-00205-VMC-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLENN HOYT HARRISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(August 23, 2021)
Before JORDAN, GRANT, and LAGOA, Circuit Judges.
PER CURIAM: USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 2 of 8
Glenn Hoyt Harrison appeals his 41-month sentence, imposed at the low end
of the advisory sentencing guidelines range, for theft of government property, in
violation of 18 U.S.C. § 641, related to Harrison withdrawing and spending monthly
Social Security benefits that his deceased mother received from the government into
her bank account for more than a decade after she passed away. On appeal, Harrison
argues that the district court committed plain error by imposing a sentence
conditioned on his inability to pay restitution, in violation of his Fifth Amendment
equal protection rights. He also argues that his sentence is substantively
unreasonable because the district court gave significant weight to his inability to pay
restitution, an impermissible sentencing factor. For the reasons below, we affirm,
addressing each of Harrison’s points in turn.
I.
A constitutional challenge raised for the first time on appeal is reviewed for
plain error. United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). Plain error
occurs where: (1) there is an error; (2) that is plain; (3) that affects the defendant’s
substantial rights; and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. United States v. Moriarty, 429 F.3d 1012, 1019
(11th Cir. 2005). An error is not plain unless the explicit language of a statute or
rule specifically resolves the issue or there is precedent from the Supreme Court or
2 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 3 of 8
Eleventh Circuit directly resolving it. United States v. Lejarde-Rada, 319 F.3d 1288,
1291 (11th Cir. 2003).
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. Although
the Fifth Amendment does not contain an equal protection clause, the Supreme Court
has recognized that discrimination may be so unjustifiable as to violate due process.
Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
“[I]t violates equal protection principles to incarcerate a person ‘solely
because he lacked the resources to pay’ a fine or restitution.” United States v. Plate,
839 F.3d 950, 955–56 (11th Cir. 2016) (quoting Bearden v. Georgia, 461 U.S. 660,
668 (1983), and citing Williams v. Illinois, 399 U.S. 235 (1970), and Tate v. Short,
401 U.S. 395 (1971)). To establish that a substantial right was violated, a defendant
must show a reasonable probability that he would have received a lesser sentence in
absence of the issue, i.e., “a probability ‘sufficient to undermine confidence in the
outcome.’” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
Consideration of an improper sentencing factor does not affect a defendant’s
substantial rights when proper factors were the “primary considerations” driving a
sentence and the improper consideration was “only a minor fragment of the court’s
reasoning.” United States v. Vandergrift, 754 F.3d 1303, 1312 (11th Cir. 2014)
3 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 4 of 8
(quoting United States v. Bennett, 698 F.3d 194 (4th Cir. 2012)). Furthermore, if the
effect of an error “is uncertain” and we cannot assess which, if either, side it helped,
then the party with the burden loses. See Rodriguez, 398 F.3d at 1300 (discussing a
defendant’s failure to satisfy prejudice prong of plain error test).
For example, in Plate, the defendant argued that the district court violated her
constitutional rights by conditioning her liberty on her ability to pay restitution in
full. 839 F.3d at 956. At sentencing, the district court stated that it would have
sentenced the defendant to probation but for her inability to pay restitution prior to
sentencing. Id. at 954. After imposing a sentence, the district court also stated that
if her restitution is paid, the district court would “immediately convert” the prison
term to probation. Id. at 954–55. In analyzing the defendant’s constitutional claim,
we acknowledged that the defendant was treated more harshly in her sentence than
if she had access to more money, which is unconstitutional. Id. at 956 (noting the
“well established” principle that “the Constitution forbids imposing a longer term of
imprisonment based on a defendant’s inability to pay restitution” (quoting United
States v. Burgum, 633 F.3d 810 (9th Cir. 2011))). We ultimately held that the
defendant’s sentence was substantively unreasonable because the district court gave
“significant (indeed dispositive) weight to [the defendant’s] inability to pay
restitution” at sentencing. 839 F.3d at 957 (emphasis in original).
4 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 5 of 8
Here, we review Harrison’s Fifth Amendment-based claim for plain error
because Harrison did not object before the district court that his sentence was
unconstitutional. Bobb, 577 F.3d at 1371. Reviewing the record, we conclude that
the district court did not err because it did not base Harrison’s sentence solely on his
inability to pay restitution. See Plate, 839 F.3d at 955–56. While the district court
did comment on Harrison’s inability to pay, it also discussed other matters relating
to Harrison in its sentencing decision, including his extensive criminal history, his
repeated violations of probation or community control, how long his present offense
conduct continued, and the large amount of funds he received.
Additionally, even if the district court erred, we conclude that the error was
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USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12264 Non-Argument Calendar ________________________
D.C. Docket No. 8:19-cr-00205-VMC-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLENN HOYT HARRISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(August 23, 2021)
Before JORDAN, GRANT, and LAGOA, Circuit Judges.
PER CURIAM: USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 2 of 8
Glenn Hoyt Harrison appeals his 41-month sentence, imposed at the low end
of the advisory sentencing guidelines range, for theft of government property, in
violation of 18 U.S.C. § 641, related to Harrison withdrawing and spending monthly
Social Security benefits that his deceased mother received from the government into
her bank account for more than a decade after she passed away. On appeal, Harrison
argues that the district court committed plain error by imposing a sentence
conditioned on his inability to pay restitution, in violation of his Fifth Amendment
equal protection rights. He also argues that his sentence is substantively
unreasonable because the district court gave significant weight to his inability to pay
restitution, an impermissible sentencing factor. For the reasons below, we affirm,
addressing each of Harrison’s points in turn.
I.
A constitutional challenge raised for the first time on appeal is reviewed for
plain error. United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). Plain error
occurs where: (1) there is an error; (2) that is plain; (3) that affects the defendant’s
substantial rights; and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. United States v. Moriarty, 429 F.3d 1012, 1019
(11th Cir. 2005). An error is not plain unless the explicit language of a statute or
rule specifically resolves the issue or there is precedent from the Supreme Court or
2 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 3 of 8
Eleventh Circuit directly resolving it. United States v. Lejarde-Rada, 319 F.3d 1288,
1291 (11th Cir. 2003).
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. Although
the Fifth Amendment does not contain an equal protection clause, the Supreme Court
has recognized that discrimination may be so unjustifiable as to violate due process.
Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
“[I]t violates equal protection principles to incarcerate a person ‘solely
because he lacked the resources to pay’ a fine or restitution.” United States v. Plate,
839 F.3d 950, 955–56 (11th Cir. 2016) (quoting Bearden v. Georgia, 461 U.S. 660,
668 (1983), and citing Williams v. Illinois, 399 U.S. 235 (1970), and Tate v. Short,
401 U.S. 395 (1971)). To establish that a substantial right was violated, a defendant
must show a reasonable probability that he would have received a lesser sentence in
absence of the issue, i.e., “a probability ‘sufficient to undermine confidence in the
outcome.’” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
Consideration of an improper sentencing factor does not affect a defendant’s
substantial rights when proper factors were the “primary considerations” driving a
sentence and the improper consideration was “only a minor fragment of the court’s
reasoning.” United States v. Vandergrift, 754 F.3d 1303, 1312 (11th Cir. 2014)
3 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 4 of 8
(quoting United States v. Bennett, 698 F.3d 194 (4th Cir. 2012)). Furthermore, if the
effect of an error “is uncertain” and we cannot assess which, if either, side it helped,
then the party with the burden loses. See Rodriguez, 398 F.3d at 1300 (discussing a
defendant’s failure to satisfy prejudice prong of plain error test).
For example, in Plate, the defendant argued that the district court violated her
constitutional rights by conditioning her liberty on her ability to pay restitution in
full. 839 F.3d at 956. At sentencing, the district court stated that it would have
sentenced the defendant to probation but for her inability to pay restitution prior to
sentencing. Id. at 954. After imposing a sentence, the district court also stated that
if her restitution is paid, the district court would “immediately convert” the prison
term to probation. Id. at 954–55. In analyzing the defendant’s constitutional claim,
we acknowledged that the defendant was treated more harshly in her sentence than
if she had access to more money, which is unconstitutional. Id. at 956 (noting the
“well established” principle that “the Constitution forbids imposing a longer term of
imprisonment based on a defendant’s inability to pay restitution” (quoting United
States v. Burgum, 633 F.3d 810 (9th Cir. 2011))). We ultimately held that the
defendant’s sentence was substantively unreasonable because the district court gave
“significant (indeed dispositive) weight to [the defendant’s] inability to pay
restitution” at sentencing. 839 F.3d at 957 (emphasis in original).
4 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 5 of 8
Here, we review Harrison’s Fifth Amendment-based claim for plain error
because Harrison did not object before the district court that his sentence was
unconstitutional. Bobb, 577 F.3d at 1371. Reviewing the record, we conclude that
the district court did not err because it did not base Harrison’s sentence solely on his
inability to pay restitution. See Plate, 839 F.3d at 955–56. While the district court
did comment on Harrison’s inability to pay, it also discussed other matters relating
to Harrison in its sentencing decision, including his extensive criminal history, his
repeated violations of probation or community control, how long his present offense
conduct continued, and the large amount of funds he received.
Additionally, even if the district court erred, we conclude that the error was
not plain because there is no case from the Supreme Court or Eleventh Circuit
directly on point holding that the sentence the district court imposed violated
Harrison’s equal protection rights. Lejarde-Rada, 319 F.3d at 1291; Moriarty, 429
F.3d at 1019. Harrison also cannot show that any error, even if plain, affected his
substantial rights because there is no indication that the district court would have
imposed a lesser sentence if he had, if fact, been able to make restitution. Rodriguez,
398 F.3d at 1299. Indeed, the district court, when sentencing Harrison, noted that it
considered all the sentencing guidelines and all of the factors in 18 U.S.C. § 3553(a),
that Harrison had not complied with his conditions of pretrial supervision, that
Harrison committed the offense while he was on probation, that the offense had
5 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 6 of 8
occurred for “a significant period of time,” and that Harrison had 21 criminal history
points. Thus, unlike Plate, the district court did not solely base its sentencing
decision on Harrison’s inability to pay restitution, and the district court did not
plainly err.
II.
We review a sentence’s substantive reasonableness under the deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). A
criminal defendant preserves the issue of the substantive reasonableness of his
sentence for review by advocating for a less severe sentence. Holguin-Hernandez
v. United States, 140 S. Ct. 762, 766–67 (2020).
The district court must issue a sentence that is “sufficient, but not greater than
necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2). 18 U.S.C. §
3553(a). “A district court abuses its discretion when it (1) fails to afford
consideration to relevant 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) (quoting United States v. Campa, 459 F.3d 1121,
1174 (11th Cir. 2006) (en banc)).
A defendant’s inability to pay restitution is an impermissible sentencing
factor, insofar as it is not listed among the factors listed in § 3553(a). Plate, 839
6 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 7 of 8
F.3d at 957. In Plate, we held that the defendant’s sentence was substantively
unreasonable because the district court gave significant, indeed dispositive, weight
to the defendant’s inability to pay restitution at sentencing. Id. The district court
also admitted on a prior remand that the outstanding restitution was a motivating
factor in its original sentencing decision. Id. We explained that restitution is not
irrelevant under § 3553 because the district court must consider the “need to provide
restitution to any victims of the offense.” Id. at n.6. (quoting 18 U.S.C.
§ 3553(a)(7)). This consideration, however, “is not the same thing as saying the
court may sentence the defendant to prison solely because she was unable to pay the
restitution in full.” Id. (emphasis in original). While the district court emphasized
the seriousness of the defendant’s offense and saw no reason to depart from the
guidelines, we found that the record unambiguously showed the district court would
have imposed a sentence of no further incarceration if the defendant had been able
to pay the restitution at or before the sentencing hearing. Id. at 958. As such, we
concluded that the district court abused its discretion in giving significant weight to
the defendant’s inability to pay as a factor in the sentence imposed and, indeed,
imposing a prison term based solely on that factor. Id.
Procedurally, Harrison sought a lesser sentence from the district court prior to
sentencing—home confinement—and at sentencing, he asked for only thirteen
months, if the district court was inclined to require incarceration. He also objected
7 USCA11 Case: 20-12264 Date Filed: 08/23/2021 Page: 8 of 8
to consideration of his inability to pay restitution. Thus, we will deem his
substantive reasonableness challenge preserved. Holguin-Hernandez, 140 S. Ct. at
766–67.
Nevertheless, the district court here did not abuse its discretion because it did
not give significant weight to Harrison’s inability to pay restitution at sentencing.
As noted above, the district court, in sentencing Harrison, stated that (1) it had
considered all the sentencing guidelines and all of the factors in 18 U.S.C. § 3553(a),
(2) Harrison had not complied with his conditions of pretrial supervision, (3)
Harrison committed the subject offense while he was on probation, (4) the offense
had occurred for “a significant period of time,” and (5) Harrison had 21 criminal
history points, i.e., an extensive criminal history. We thus conclude that Harrison’s
41-month sentence is not substantively unreasonable. Irey, 612 F.3d at 1189; Plate,
839 F.3d at 958.
Accordingly, we affirm.
AFFIRMED.