United States v. Jackson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 24, 2011
• Docket: 10-13019
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-13019 FEB 24, 2011 JOHN LEY Non-Argument Calendar CLERK ________________________

D.C. Docket No. 5:07-cr-00024-HL-CWH-1

UNITED STATES OF AMERICA,

llllllllllllllllllll Plaintiff - Appellee,

versus

CHRISTOPHER JACKSON,

lllllllllllllllllllll Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(February 24, 2011)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM: Christopher Jackson pleaded guilty to violating 18 U.S.C. §§ 371, 545, and

2320(a) and was sentenced to 30 months’ imprisonment to be followed by 3 years

of supervised release. After he was released from prison, Jackson violated several

conditions of his supervised release. Jackson failed to comply with the orders of

his probation officer, admitted to smoking marijuana, and made threats to an

official at the Georgia Department of Revenue and his probation officer. Based on

these violations, the probation office petitioned the district court to revoke

Jackson’s supervised release. At the revocation hearing Jackson stipulated to the

violations and explained that the more serious violations–his threats against state

and federal officers–were the result of his anger management problems. The

district court revoked Jackson’s supervised release and remanded him to prison for

a term of 21 months. Jackson appeals from the revocation and argues that the

district court erred by not verifying that he and his counsel had read and discussed

the probation office’s revocation report and that his term of imprisonment is

substantively unreasonable.

I.

We review a term of imprisonment imposed following revocation for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.

2006). We first look to whether the district court committed any significant

2 procedural error. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We then examine the substantive reasonableness of the term of imprisonment. Id.

II.

Jackson argues that his “sentence” is procedurally unreasonable because the

district court erred by not verifying that he and his counsel had read and discussed

the probation office’s revocation report.1 The crux of Jackson’s argument is this:

the Federal Rule of Criminal Procedure that governs an initial sentencing also

applies to supervised-release-revocation hearings. We disagree.

Rule 32, which governs sentencing procedure, requires that the probation

office create a presentence report and, at sentencing, a district court must verify

that the defendant and his counsel have read and discussed that report. Fed. R.

Crim. P. 32. Rule 32.1—the rule of criminal procedure that governs revocation

hearings—does not require that the district court verify that the defendant and his

counsel have reviewed the probation officer’s revocation report. Indeed, it does

not even require that the probation office produce such a report. Fed. R. Crim. P.

32.1

1 Because Jackson raises this argument for the first time on appeal, we review for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). To prevail, Jackson must establish (1) that there was error; (2) that it was plain; and (2) that it affected his substantial rights. Id.

3 It is clear from the language of Rule 32 that it does not apply to revocation

hearings. When a defendant is imprisoned upon revocation of supervised release,

he is still serving part of his original sentence. Cf. United States v. Woods,

127 F.3d 990, 993 (11th Cir. 1997) (holding that revocation of probation is part of

defendant’s original sentence). What Rule 32 requires is that, at sentencing, the

district judge verify that the defendant and his lawyer have reviewed and discussed

the presentence report. Because supervised release is part of a defendant’s

original sentence, a revocation hearing occurs after sentencing. Furthermore,

because a revocation hearing occurs after sentencing, a revocation report cannot

be a presentence report. Rule 32(i)(1)(A) does not apply to revocation hearings.

And we can find no support for transplanting Rule 32’s requirements to revocation

hearings held under Rule 32.1. Accordingly, the district court did not err.

III.

Jackson also argues that the term of imprisonment imposed by the court

following revocation was substantively unreasonable. Whether a term of

imprisonment is substantively unreasonable is essentially a question whether the

district court abused its discretion. Pugh, 515 F.3d at 1179. Terms of

imprisonment, like this one, that are within the properly calculated guidelines

range are presumptively reasonable. Rita v. United States, 551 U.S. 338, 341

4 (2007); United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007). But

even if a term of imprisonment is within the guidelines, it must also, considering

the totality of the circumstances, achieve the purposes of 18 U.S.C. § 3553(a).2

Gall v. United States, 552 U.S. 38, 51 (2007); Pugh, 515 F.3d at 1191. The party

challenging a sentence bears the burden of establishing its unreasonableness.

Pugh, 515 F.3d at 1189.

Jackson argues that the sentence is unreasonable because it fails to account

for or to address the root of his problems—his inability to control his anger.

Jackson suggests that a more lenient sentence would help alleviate his anger

management problem or that, in any case, the district court should have imposed a

condition that he receive anger management treatment.

At the revocation hearing, the district judge considered and addressed

Jackson’s arguments about his anger management problem. Jackson does not

2 The purposes of § 3553(a) are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.

18 U.S.C. § 3553(a).

5 offer any explanation how a lesser term of imprisonment would address his anger

management problem. And he has not established that the district court’s

revocation order has denied him the ability to participate in anger management

programs during his incarceration. Accordingly, we conclude that the district

court did not abuse its discretion in revoking Jackson’s supervised release and

imposing a 21-month term of imprisonment.

Because we conclude that the district court committed no procedural error

and that it did not abuse its discretion, we affirm.

AFFIRMED.