Case: 17-14917 Date Filed: 07/09/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14917 Non-Argument Calendar ________________________
D.C. Docket No. 9:08-cr-80034-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES THOMAS WITHROW,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 9, 2018)
Before WILSON, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 17-14917 Date Filed: 07/09/2018 Page: 2 of 7
James Withrow appeals his 36-month imprisonment sentence, imposed upon
revocation of his supervised release. In December 2016, Withrow finished serving
a 120 month term of imprisonment and began serving a five year term of
supervised release. In March 2017, Withrow was arrested for grand theft after he
withdrew $4,600 from his Wells Fargo bank account, where $9,600 in counterfeit
checks had recently been deposited. He pleaded guilty in state court to a charge of
petty theft and was ordered to pay $4,600 in restitution. Thereafter, the probation
office charged him with two violations of his supervised release. At his final
revocation hearing, Withrow pleaded guilty to a charge of petty theft and admitted
to violating the conditions of his supervised release. Withrow’s violation produced
a guideline range of 8 to 14 months of imprisonment and—because Withrow’s
original offense was a Class A felony—a maximum sentence of five years’
imprisonment. The district court sentenced him to 36 months of imprisonment and
a new term of 24 months of supervised release.
On appeal, Withrow argues that his sentence was procedurally unreasonable
because the district court (1) failed to adequately explain its upward variance; (2)
considered an improper factor in 18 U.S.C. § 3553(a); and (3) considered clearly
erroneous facts about the circumstances of his violation. He also argues that the
sentence was substantively unreasonable because the district court improperly
2 Case: 17-14917 Date Filed: 07/09/2018 Page: 3 of 7
weighed the § 3553(a) factors. Upon thorough review of the briefs and the record,
we affirm.
I.
We review the procedural and substantive reasonableness of a sentence for
abuse of discretion. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
We review a defendant’s claim that the district court failed to explain the reasons
for imposing a sentence above the defendant’s guideline range de novo, regardless
of whether the defendant objected on those grounds below. United States v. Parks,
823 F.3d 990, 996–97 (11th Cir. 2016). In general, however, if a party does not
raise a procedural sentencing argument before the district court, we review only for
plain error. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). For a
defendant to preserve an objection to his sentence for appeal, he must raise that
point in such clear and simple language that the trial court may not misunderstand
it. United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006). We may correct a
plain error only when (1) an error has occurred; (2) the error was plain; (3) the
error affected substantial rights; and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. McNair, 605 F.3d at 1222.
A sentence is procedurally unreasonable if the district court miscalculated
the guideline range, treated the Sentencing Guidelines as mandatory, failed to
3 Case: 17-14917 Date Filed: 07/09/2018 Page: 4 of 7
consider the 18 U.S.C. § 3553(a) factors, based the sentence on clearly erroneous
facts, or failed to adequately explain the sentence. United States v. Trailer, 827
F.3d 933, 936 (11th Cir. 2016) (per curiam). The district court is required to “state
in open court the reasons for its imposition of the particular sentence, and if the
sentence is outside the applicable guideline range the specific reason for the
imposition of that sentence.” Parks, 823 F.3d at 992 (internal quotation marks
omitted and alteration adopted). The district court should also consider “the
extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.” Gall v. United States, 552 U.S. 38, 50, 128 S.
Ct. 586, 597 (2007).
We examine whether the sentence was substantively reasonable in light of
the totality of the circumstances and the § 3553(a) factors. Trailer, 827 F.3d at
936. The weight given to each § 3553(a) factor is committed to the sound
discretion of the district court, and we will not substitute our judgment in weighing
the relevant factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007).
Nevertheless, a court can abuse its discretion if it (1) fails to consider relevant
factors that were due significant weight; (2) gives an improper or irrelevant factor
significant weight; or (3) commits a clear error of judgment by balancing the
proper factors unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (en banc). Under the abuse-of-discretion standard, we will reverse only if
4 Case: 17-14917 Date Filed: 07/09/2018 Page: 5 of 7
we are left with the firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case. Id. at
1190. We do not presume that a sentence outside of the guideline range is
unreasonable, and we give deference to the district court’s decision that the
§ 3553(a) factors support its chosen sentence. Id. at 1187.
II.
A. Procedural Reasonableness
As an initial matter, Withrow did not clearly object to the procedural
reasonableness of his sentence before the district court. Accordingly—aside from
our review of whether the district court adequately explained its reason for
imposing a sentence above the guideline range—we review Withrow’s procedural
claims for plain error. McNair, 605 F.3d at 1222.
First, we find that the district court adequately explained why it sentenced
Withrow above the guideline range. The district court remarked at length upon
Withrow’s extensive criminal history; expressed its concern that he had not been
deterred by his previous 120 month sentence and that he had only been out of
prison for a few months before engaging in a significant fraud scheme; and
stressed that the sentence needed to protect the public and to deter Withrow from
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Case: 17-14917 Date Filed: 07/09/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14917 Non-Argument Calendar ________________________
D.C. Docket No. 9:08-cr-80034-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES THOMAS WITHROW,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 9, 2018)
Before WILSON, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 17-14917 Date Filed: 07/09/2018 Page: 2 of 7
James Withrow appeals his 36-month imprisonment sentence, imposed upon
revocation of his supervised release. In December 2016, Withrow finished serving
a 120 month term of imprisonment and began serving a five year term of
supervised release. In March 2017, Withrow was arrested for grand theft after he
withdrew $4,600 from his Wells Fargo bank account, where $9,600 in counterfeit
checks had recently been deposited. He pleaded guilty in state court to a charge of
petty theft and was ordered to pay $4,600 in restitution. Thereafter, the probation
office charged him with two violations of his supervised release. At his final
revocation hearing, Withrow pleaded guilty to a charge of petty theft and admitted
to violating the conditions of his supervised release. Withrow’s violation produced
a guideline range of 8 to 14 months of imprisonment and—because Withrow’s
original offense was a Class A felony—a maximum sentence of five years’
imprisonment. The district court sentenced him to 36 months of imprisonment and
a new term of 24 months of supervised release.
On appeal, Withrow argues that his sentence was procedurally unreasonable
because the district court (1) failed to adequately explain its upward variance; (2)
considered an improper factor in 18 U.S.C. § 3553(a); and (3) considered clearly
erroneous facts about the circumstances of his violation. He also argues that the
sentence was substantively unreasonable because the district court improperly
2 Case: 17-14917 Date Filed: 07/09/2018 Page: 3 of 7
weighed the § 3553(a) factors. Upon thorough review of the briefs and the record,
we affirm.
I.
We review the procedural and substantive reasonableness of a sentence for
abuse of discretion. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
We review a defendant’s claim that the district court failed to explain the reasons
for imposing a sentence above the defendant’s guideline range de novo, regardless
of whether the defendant objected on those grounds below. United States v. Parks,
823 F.3d 990, 996–97 (11th Cir. 2016). In general, however, if a party does not
raise a procedural sentencing argument before the district court, we review only for
plain error. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). For a
defendant to preserve an objection to his sentence for appeal, he must raise that
point in such clear and simple language that the trial court may not misunderstand
it. United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006). We may correct a
plain error only when (1) an error has occurred; (2) the error was plain; (3) the
error affected substantial rights; and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. McNair, 605 F.3d at 1222.
A sentence is procedurally unreasonable if the district court miscalculated
the guideline range, treated the Sentencing Guidelines as mandatory, failed to
3 Case: 17-14917 Date Filed: 07/09/2018 Page: 4 of 7
consider the 18 U.S.C. § 3553(a) factors, based the sentence on clearly erroneous
facts, or failed to adequately explain the sentence. United States v. Trailer, 827
F.3d 933, 936 (11th Cir. 2016) (per curiam). The district court is required to “state
in open court the reasons for its imposition of the particular sentence, and if the
sentence is outside the applicable guideline range the specific reason for the
imposition of that sentence.” Parks, 823 F.3d at 992 (internal quotation marks
omitted and alteration adopted). The district court should also consider “the
extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.” Gall v. United States, 552 U.S. 38, 50, 128 S.
Ct. 586, 597 (2007).
We examine whether the sentence was substantively reasonable in light of
the totality of the circumstances and the § 3553(a) factors. Trailer, 827 F.3d at
936. The weight given to each § 3553(a) factor is committed to the sound
discretion of the district court, and we will not substitute our judgment in weighing
the relevant factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007).
Nevertheless, a court can abuse its discretion if it (1) fails to consider relevant
factors that were due significant weight; (2) gives an improper or irrelevant factor
significant weight; or (3) commits a clear error of judgment by balancing the
proper factors unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (en banc). Under the abuse-of-discretion standard, we will reverse only if
4 Case: 17-14917 Date Filed: 07/09/2018 Page: 5 of 7
we are left with the firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case. Id. at
1190. We do not presume that a sentence outside of the guideline range is
unreasonable, and we give deference to the district court’s decision that the
§ 3553(a) factors support its chosen sentence. Id. at 1187.
II.
A. Procedural Reasonableness
As an initial matter, Withrow did not clearly object to the procedural
reasonableness of his sentence before the district court. Accordingly—aside from
our review of whether the district court adequately explained its reason for
imposing a sentence above the guideline range—we review Withrow’s procedural
claims for plain error. McNair, 605 F.3d at 1222.
First, we find that the district court adequately explained why it sentenced
Withrow above the guideline range. The district court remarked at length upon
Withrow’s extensive criminal history; expressed its concern that he had not been
deterred by his previous 120 month sentence and that he had only been out of
prison for a few months before engaging in a significant fraud scheme; and
stressed that the sentence needed to protect the public and to deter Withrow from
engaging in future criminal conduct. The court then stated that “for all of these
5 Case: 17-14917 Date Filed: 07/09/2018 Page: 6 of 7
reasons . . . I find that a sentence in excess of the advisory guideline range is
appropriate.” We find that the district court satisfied its responsibility under 18
U.S.C. § 3553(c)(2).
Second, the district court did not plainly err in considering the need to
promote respect for the law and provide just punishment for the offense under 18
U.S.C. § 3553(a)(2)(A), because the Supreme Court has not held that it is error to
consider a factor listed in § 3553(a)(2)(A) when imposing a sentence after
revoking supervised release, and neither has our circuit. See United States v.
Vandergrift, 754 F.3d 1303, 1308–09 (11th Cir. 2014). Accordingly, any alleged
error cannot be plain. Id. at 1309.
Third, there is no indication from the record that the district court plainly
erred in considering any clearly erroneous facts surrounding Withrow’s violation.
It was undisputed that Withrow withdrew $4,600 from his bank account; that
$9,600 in fraudulent checks was deposited into the account; and that Withrow
pleaded down to petty theft from grand theft. The district court did not plainly err
in refusing to believe Withrow’s version of the events at the revocation hearing—
that a loan company he found online deposited the money into his account, which
he did not know came from counterfeit checks.
B. Substantive Reasonableness
6 Case: 17-14917 Date Filed: 07/09/2018 Page: 7 of 7
Withrow’s sentence was also substantively reasonable. The district court
considered Withrow’s limited mitigating circumstances and determined that his
significant criminal history, the need for deterrence, and the seriousness of his
violation outweighed them. The district court expressed particular concern over
the fact that Withrow committed a significant violation so recently after he was
released from prison, and cited a special need to deter future criminal behavior and
protect the public. After reviewing the district court’s thorough consideration of
the sentencing factors and justification for its upward variance, we are not “left
with the definite and firm conviction that the district court committed a clear error
of judgment” in sentencing Withrow to 36 months in prison and 24 months of
supervised release. Irey, 612 F.3d at 1190.
AFFIRMED.