United States v. Jason Lamar Chisolm

559 F. App'x 800
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 11, 2014
Docket12-15447
StatusUnpublished

This text of 559 F. App'x 800 (United States v. Jason Lamar Chisolm) 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. Jason Lamar Chisolm, 559 F. App'x 800 (11th Cir. 2014).

Opinion

PER CURIAM:

Jason Lamar Chisolm appeals his 51-month sentence, which he received upon revocation of his supervised release pursuant to 18 U.S.C. § 3583(e). In 1995, Mr. Chisolm was sentenced to 200 months in prison and 60 months of supervised release after pleading guilty to one count of conspiracy to possess with intent to distribute, and distribution of cocaine base and cocaine hydrochloride in violation of 21 U.S.C. 846. In 2012, he admitted to violating the conditions of his supervised release by committing another state crime, possessing a controlled substance and associ *801 ating with persons engaged in criminal activity.

Mr. Chisolm argues on appeal that his sentence was procedurally unreasonable because the district court incorrectly applied a criminal history category of VI, as calculated for the original underlying offense. Mr. Chisolm asserts that the district court should have corrected this error and applied criminal history category V instead. Mr. Chisolm also contends that, because of the mistaken criminal history categorization, he served more time for the original underlying offense than was appropriate. He argues that, in the instant revocation proceedings, the district court should have considered this excess time in prison as a mitigating factor under 18 U.S.C. § 3553(a), and its failure to do so rendered his 51-month sentence substantively unreasonable.

After reviewing the record and the parties’ briefs, we affirm Mr. Chisolm’s sentence.

I

“We review the sentence imposed upon the revocation of supervised release for reasonableness.” United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir.2008). ‘We review the reasonableness of a sentence under an abuse of discretion standard.” United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir.2013). “The burden of establishing unreasonableness lies with the party challenging the sentence.” Id,

II

In reviewing the reasonableness of a sentence, we must first ensure that the district court committed no significant procedural error, meaning the court properly calculated the guideline range, treated the Guidelines as advisory, considered the § 3553(a) factors, did not select a sentence based on clearly erroneous facts, and adequately explained the chosen sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “For sentences imposed upon revocation of supervised release, the recommended sentencing range is based on the classification of the conduct that resulted in the revocation and the criminal history category applicable at the time the defendant originally was sentenced to the term of supervision.” United States v. Campbell, 473 F.3d 1345, 1348-49 (11th Cir.2007). See, also 18 U.S.C. § 3583(e)(3); U.S.S.G. §§ 7B1.1, 7B1.4. The commentary to § 7B1.4 states, in pertinent part, that “[t]he criminal history category is not to be recalculated because the ranges set forth in the Revocation Table have been designed to take into account that the defendant violated supervision.” § 7B1.4, cmt. n. 1.

Despite the foregoing, Mr. Chisolm nevertheless contends that the district court erred in basing his present sentencing range on the criminal history category applicable to him when he was sentenced for the original underlying charge. He says this was error because that criminal history category was incorrectly calculated. Specifically, he alleges that, at the time of his original sentencing, he was incorrectly classified as a career offender, and this incorrect classification resulted in a criminal history category of VI instead of V.

We find no merit to Mr. Chisolm’s claim of procedural error, as we have held that a defendant facing incarceration upon the revocation of supervised release may not challenge the validity of his original sentence during the revocation proceedings. See United States v. Almand, 992 F.2d 316, 317-18 (11th Cir.1993). In Almand, the defendant argued that he could not be sentenced following revocation of supervised release because his sentence of su *802 pervised release for his original crime was invalid, as he was not present at the time it was imposed. See id. We held that challenges to the underlying sentence’s validity may be raised only by collateral attack through a separate proceeding. See id. See also United States v. White, 416 F.3d 1313, 1316 (11th Cir.2005) (holding that a prisoner may not challenge his underlying sentence, “for the first time on appeal from the revocation of supervised release,” and instead must bring a motion to vacate under 28 U.S.C. § 2255). Therefore, unless the underlying sentence has been vacated, the district court should presume it is valid during the revocation proceeding. See Almand, 992 F.2d at 317.

Here, because Mr. Chisolm’s challenge to the underlying sentence was not properly before the district court during the revocation proceeding, and it is undisputed that Mr. Chisolm failed to successfully attack his underlying sentence in the eighteen years since it was imposed, the district court correctly presumed that the sentence — and the criminal history category calculation contained therein — was valid. Accordingly, the district court did not abuse its discretion in applying criminal history category VI. The court properly calculated the advisory guideline range for imprisonment following revocation of supervised release, and as Mr. Chisolm alleges no other grounds of error in the district court’s process, we affirm his sentence as procedurally reasonable.

Ill

Having determined that the district court’s sentence is procedurally sound, we next review the substantive reasonableness of the sentence. See Kuhlman, 711 F.3d at 1326. A district court is required to consider the factors set forth in § 3553(a) in order to determine a sentence following revocation of supervised release. See 18 U.S.C. § 3583(e), (e)(3). Mr. Chisolm contends that his sentence is substantively unreasonable because the district court failed to meaningfully consider his prolonged time in prison as a mitigating factor under § 3553(a)(1).

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Related

United States v. Mark Keith White
416 F.3d 1313 (Eleventh Circuit, 2005)
United States v. Michael A. Crisp
454 F.3d 1285 (Eleventh Circuit, 2006)
United States v. Mark Anthony Campbell
473 F.3d 1345 (Eleventh Circuit, 2007)
United States v. John Windell Clay
483 F.3d 739 (Eleventh Circuit, 2007)
United States v. Velasquez Velasquez
524 F.3d 1248 (Eleventh Circuit, 2008)
United States v. Gonzalez
550 F.3d 1319 (Eleventh Circuit, 2008)
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. Christopher Alan Almand
992 F.2d 316 (Eleventh Circuit, 1993)
United States v. Rick A. Kuhlman
711 F.3d 1321 (Eleventh Circuit, 2013)

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559 F. App'x 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jason-lamar-chisolm-ca11-2014.