United States v. James Bradshaw

416 F. App'x 894
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 4, 2011
Docket10-13254
StatusUnpublished

This text of 416 F. App'x 894 (United States v. James Bradshaw) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Bradshaw, 416 F. App'x 894 (11th Cir. 2011).

Opinion

PER CURIAM:

James Bradshaw appeals his 24-month sentence imposed upon revocation of supervised release pursuant to 18 U.S.C. § 3583(e)(3). On appeal, Bradshaw argues that: (1) the district court plainly erred when it failed to inquire whether Bradshaw had read and discussed his revocation report with counsel; and (2) his sentence was unreasonable. After careful review, we affirm.

When a party raises a sentencing challenge for the first time on appeal, we review only for plain error. United States v. Beckles, 565 F.3d 832, 842 (11th Cir.), cert. denied, — U.S. —, 130 S.Ct. 272, 175 L.Ed.2d 183 (2009). When reviewing for plain error, we will reverse only if the defendant meets his burden of proving that: (1) there is an error; (2) the error is plain or obvious; (3) the error affects the defendant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of a judicial proceeding. Id. We review for reasonableness the ultimate sentence a district court imposes upon revocation of supervised release. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.2006).

First, we are unpersuaded by Bradshaw’s claim that the district court plainly erred when it failed to inquire whether Bradshaw had read and discussed his revocation report with counsel. The rules governing revocations of supervised *896 release are found in Fed.R.Crim.P. 32.1, and provide that a defendant in such proceedings is entitled to:

(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear;
(D) notice of the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and
(E) an opportunity to make a statement and present any information in mitigation.

Fed.R.Crim.P. 32.1(b)(2). Rule 32.1 is silent on whether the court must ensure that the defendant has read and discussed the revocation report with counsel. See Fed. R.Crim.P. 32.1. However, Rule 32, Sentencing and Judgment — upon which Bradshaw relies — provides that, at sentencing, the court “must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.” Fed. R.Crim.P. 32(i)(l)(A).

Applying plain error review here — -since, as Bradshaw concedes, he did not object in the district court to this claim — we conclude that the court did not violate Fed. R.Crim.P. 32(i)(l)(A) when it failed sua sponte to ask whether Bradshaw had read and discussed the revocation report with counsel. As an initial matter, in United States v. Frazier, we held that Rule 32.1 did not incorporate additional provisions from Rule 32, including the right to allocute. 283 F.3d 1242, 1244 (11th Cir.2002), opinion vacated and appeal dismissed, 324 F.3d 1224 (11th Cir.2003) (granting defendant’s motion to dismiss appeal in light of sentence completion). In United States v. Carruth, we recognized that “Rule 32. 1(b)(2)(E) was subsequently amended to address this gap in the rule by explicitly recognizing the right to allocution at Rule 32.1(b)(2) revocation hearings.” 528 F.3d 845, 846 (11th Cir.2008) (quotations and brackets omitted). Thus, we recognized that Rule 32 provisions can be incorporated into Rule 32.1 via amendments to the text of Rule 32.1. See id. Nevertheless, there has been no amendment to Rule 32.1 that requires the court to ask whether the defendant had read and discussed the revocation report with counsel, and as a result, the district court did not plainly err in failing sua sponte to inquire with Bradshaw.

But even if the court had erred in failing to inquire, it was not plain error because Bradshaw has not shown that it affected his substantial rights. To show an error affected his substantial rights, Bradshaw must demonstrate that, but for the error, there was a reasonable probability of a different result at sentencing. See United States v. Underwood, 446 F.3d 1340, 1343-44 (11th Cir.2006). Although the court sentenced Bradshaw above the guideline range, the court acknowledged that the sentence was outside the range, and Bradshaw has not shown that an inquiry into whether he read the revocation report would have resulted in a different sentence.

We also reject Bradshaw’s argument that his sentence was unreasonable because the court focused too much on his previous supervised release violations, failed to weigh the nature and circumstances of the offense and Bradshaw’s history and characteristics, failed to take into account his substance abuse problems, ignored the fact that drug addiction is a factor routinely warranting consideration *897 as a basis for a downward variance at sentencing, and failed to consider that a more lenient sentence would have adequately protected society. In reviewing sentences for reasonableness, we perform two steps. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.2008). First, we must “ ‘ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). 1 The district court need not discuss each § 3553(a) factor. United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005).

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Related

United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Ashanti Sweeting
437 F.3d 1105 (Eleventh Circuit, 2006)
United States v. Darin Underwood
446 F.3d 1340 (Eleventh Circuit, 2006)
United States v. Pugh
515 F.3d 1179 (Eleventh Circuit, 2008)
United States v. Carruth
528 F.3d 845 (Eleventh Circuit, 2008)
United States v. Beckles
565 F.3d 832 (Eleventh Circuit, 2009)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Irey
612 F.3d 1160 (Eleventh Circuit, 2010)
United States v. Frazier
283 F.3d 1242 (Eleventh Circuit, 2002)

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416 F. App'x 894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-bradshaw-ca11-2011.