United States v. Jerry Marcle

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 28, 2025
• Docket: 25-10362
• Status: Unpublished

Opinion

USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 25-10362 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JERRY WILLIAM MARCLE,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:24-cr-00221-WWB-EJK-1 ____________________ USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 2 of 13

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Before JORDAN, JILL PRYOR, and LUCK, Circuit Judges. PER CURIAM: While on supervised release, appellant Jerry William Marcle used cocaine and marijuana and failed to participate in required substance abuse treatment. The district court revoked his super- vised release and imposed a sentence of seven months’ incarcera- tion followed by a 29-month term of supervised release. On appeal, Marcle argues that the revocation sentence is unreasonable. After careful consideration, we affirm. I. In 2019, Marcle pleaded guilty to conspiracy to distribute and to possess with the intent to distribute methamphetamine. The district court imposed a sentence of 40 months’ imprisonment to be followed by a three-year term of supervised release. While on supervised release, Marcle had to comply with cer- tain conditions. He could not commit another crime or unlawfully possess a controlled substance. He also had to answer truthfully his probation officer’s questions, live in a place his probation officer approved, work at least 30 hours per week, participate in a sub- stance abuse and mental health treatment program, and submit to random drug tests. In January 2022, Marcle completed his custodial sentence and began his term of supervised release. He participated in a sub- stance abuse and mental health treatment program, which he com- pleted in October 2022. USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 3 of 13

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While on supervised release, Marcle tested positive for drugs on several occasions. In May 2022, less than four months after be- ing released from prison, he tested positive for cocaine. He admit- ted to his probation officer that he used cocaine and was having trouble with his coping skills and impulsivity. After this violation, the probation officer required him to submit to more frequent drug tests. In April 2024, Marcle admitted to his probation officer that he had smoked marijuana but denied using other drugs. He ex- pressed remorse, explaining that he had a lapse in judgment and had been struggling with depression. The probation officer ver- bally reprimanded him, reminded him of the conditions of his su- pervised release, and directed him to resume participation in a sub- stance abuse and drug treatment program. After Marcle admitted to smoking marijuana, his probation officer required him to provide a urine sample for a drug test. He tested positive for marijuana and cocaine. The urine sample also tested positive for oxidizing agents, which indicate an attempt to tamper with or alter the sample. He later admitted that he had used cocaine but denied tampering with the sample. About three months later, in July 2024, Marcle admitted to his probation officer that he had again smoked marijuana but de- nied using any other drugs. He was verbally reprimanded and re- minded of the conditions of his supervised release, including par- ticipation in a substance abuse and mental health treatment USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 4 of 13

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program. He was given a drug test and tested positive for both ma- rijuana and cocaine. After each of the April and July 2024 incidents, Marcle was directed to enroll in a drug treatment program. In September 2024, he was discharged from the drug treatment program because he failed to show up for his therapy appointments. When he was discharged from the treatment program, his probation officer petitioned the district court for an arrest warrant. The petition alleged that Marcle violated the terms of his super- vised release when: he (1) used marijuana in April 2024, (2) used cocaine in April 2024, (3) used marijuana in July 2024, (4) used co- caine in July 2024, and (5) failed to participate in a substance abuse and mental health treatment program. Along with the petition for Marcle’s arrest, the probation of- fice submitted a memorandum advising the court of the sentencing options available if it found that Marcle violated the terms of his supervision. The memorandum explained that the court could con- tinue his current supervised release or extend its term. Alterna- tively, the court could revoke supervised release and impose a term of incarceration of up to two years. See 18 U.S.C. § 3583(e). The memo noted that if the court revoked supervised release and im- posed a custodial sentence, it could order a new term of supervised release to follow that sentence. The probation office advised that under the Sentencing Guidelines, Marcle’s guideline range was three to nine months’ imprisonment. USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 5 of 13

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Based on the probation officer’s petition, the court issued an arrest warrant. Marcle was arrested and held in custody pending a revocation hearing. Before the revocation hearing, the probation officer recommended that, if the court found violations of the con- ditions of Marcle’s supervised release, it revoke his supervised re- lease and sentence him to nine months’ imprisonment. She recom- mended a sentence at the high end of the guideline range because of the “nature of the violations and Marcle’s conduct while on su- pervised release.” Doc. 23 at 2. 1 The probation officer did not rec- ommend a term of supervised release to follow the custodial sen- tence because Marcle was not “amenable to supervision.” Id. At the revocation hearing, Marcle admitted to violating the terms of his supervised release. The court announced that the ap- plicable guideline range for his violations was three to nine months’ imprisonment. It recited that the statutory maximum custodial sentence was two years’ imprisonment, and the statutory maxi- mum term of supervised release was three years. Marcle asked the court to sentence him to three months’ im- prisonment with no supervised release to follow. He pointed to his accomplishments since his release from prison, including that he had cut off contact with friends from the time of his initial arrest and maintained employment. Most importantly, he had reunited with his 16-year-old son and was raising the child as a single parent.

1 “Doc.” numbers refer to the district court’s docket entries. USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 6 of 13

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Marcle admitted that he struggled with substance abuse and asked the court to consider that relapse was a part of recovery. He tied his substance abuse to the circumstances of his traumatic child- hood. When he was three years old, he was placed into foster care because of his mother’s drug addiction. While in foster care, he was subjected to physical and mental abuse. His mother later regained custody, but she, too, physically abused him. At just 12 years old, he left home and moved in with a friend. He also detailed the tu- multuous situation that led him to relapse. He explained that his former girlfriend brought a firearm into their home despite agree- ing not to do so. When his probation officer learned about the fire- arm, Marcle was given 24 hours to find a new place to live, which placed him under enormous stress and led to his relapse. Marcle admitted that he failed to attend the substance abuse treatment as ordered by his probation officer. He said that he could not participate because the program conflicted with his work hours. He explained that he was forced to choose between working to provide for his son and participating in his own treatment, and he chose to provide for his son. Marcle told the court that he had learned his lesson while being detained awaiting his revocation hearing because he had been forced to separate from his son for a second time. He prom- ised that he would not engage in future criminal conduct, saying he understood that he would receive a lengthy prison sentence if he were caught with drugs in the future. USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 7 of 13

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The government urged the court to impose a sentence of seven months’ imprisonment with no supervised release to follow. It emphasized the seriousness of Marcle’s conduct, noting that he tested positive for cocaine on multiple occasions while on super- vised release, he had not told the truth to his probation officer about his cocaine use, there was evidence that he tampered with a urine sample, and he failed to participate in required drug treat- ment. The court considered the parties’ positions. It acknowledged that addiction was a chronic, recurring disease. It added that Marcle could manage his addiction with the tools provided, but he had to want to help himself. Until he was ready to stop using drugs, the court said, there was nothing anyone else could do to stop him. The court noted that he had shown an inability or unwillingness to stop using drugs even while on supervised release. It also empha- sized the importance of Marcle’s participation in drug treatment, because he could not be a good father or worker if he was on drugs. After looking at the facts of the case and considering the sentencing factors set forth at 18 U.S.C. § 3553(a), the court revoked Marcle’s supervised release and sentenced him to seven months’ imprison- ment followed by 29 months of supervised release. After the court announced the sentence, Marcle asked about the new term of supervised release. The court explained that it im- posed the term of supervised release to ensure that Marcle contin- ued moving forward and received needed treatment. The court re- iterated that it had considered the § 3553(a) factors and that the USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 8 of 13

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sentence imposed was sufficient but not greater than necessary to comply with the statutory purposes of sentencing. This is Marcle’s appeal. II. “We review the substantive reasonableness of a sentence for an abuse of discretion.” United States v. Butler, 39 F.4th 1349, 1354– 55 (11th Cir. 2022); United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008) (applying same standard of review to a sentence imposed on revocation of supervised release). III. Marcle argues that the revocation sentence is substantively unreasonable. We begin by reviewing general principles that apply in the revocation of supervised release context. When a defendant violates a condition of supervised release, a district court generally has several options, including extending or revoking his term of supervised release. 2 18 U.S.C. § 3583(e). If the court revokes supervised release, it may order that the defend- ant “serve in prison all or part of the term of supervised release au- thorized by statute for the offense that resulted in such term of su- pervised release.” Id. § 3583(e)(3). The court also may “require[] that the defendant be placed on a term of supervised release after

2 For certain types of supervised release violations, a district court is required

to revoke the term of supervised release and impose a term of imprisonment. See 18 U.S.C. § 3583(g). Marcle’s supervised release violations in this case did not require the district court to revoke his supervised release. USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 9 of 13

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imprisonment.” Id. § 3583(h). The new term of supervised release cannot be longer than “the term of supervised release authorized by statute for the offense that resulted in the original term of su- pervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” Id. When deciding whether to modify or revoke a defendant’s term of supervised release, a district court must consider the fol- lowing § 3553(a) factors: the nature and circumstances of the of- fense; the defendant’s history and characteristics; the need to deter criminal conduct, protect the public, and provide the defendant with necessary educational or vocational training, medical care, or other correctional treatment; the kind of sentence and the sentenc- ing range established by applicable guidelines or policy statements; pertinent policy statements; the need to avoid unwarranted sen- tence disparities; and the need to provide restitution to victims. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7); 3583(e). Under the Sentencing Guidelines, a defendant’s advisory guideline range for a supervised release violation is determined based on the grade of the supervised release violation 3 and his criminal history category. See U.S. Sent’g Guidelines Manual § 7B1.4.

3 The Sentencing Guidelines divide supervised-release violations into three

grades. Grade A violations include conduct constituting “a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) a controlled substance offense, or (iii) involves possession of a firearm or destructive device.” U.S.S.G. § 7B1.1(a)(1). Grade A violations also include conduct constituting “any other federal, state, or local USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 10 of 13

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Marcle does not challenge the district court’s decision to re- voke his supervised release and impose a custodial sentence of seven months. He does, however, challenge the court’s imposition of a 29-month term of supervised release to follow the custodial sentence. He argues that the supervised release portion of his sen- tence was “akin to an upward variance,” Appellant’s Br. 9, because his guidelines range was a custodial sentence of three to nine months without any term of supervised release. See U.S.S.G. § 7B1.4. He also argues that in imposing the new term of super- vised release, the district court gave insufficient weight to his his- tory and characteristics and improperly disregarded the parties’ agreement and his probation officer’s recommendation that the court impose a custodial sentence with no supervised release to fol- low. We will reverse a sentence for substantive unreasonableness “only if[] we are left with the definite and 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.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted). “[T]he weight given to any specific

offense punishable by a term of imprisonment exceeding twenty years.” Id. Grade B violations involve “conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year.” Id. § 7B.1.1(a)(2). Grade C violations involve conduct constituting “a federal, state, or local offense punishable by a term of imprisonment of one year or less” or “a violation of any other condition of supervision.” Id. § 7B1.1(a)(3). USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 11 of 13

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§ 3553(a) factor is committed to the sound discretion of the district court.” United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016). When the district court imposes an upward variance, it “must have a justification compelling enough to support the degree of the var- iance and complete enough to allow meaningful appellate review.” United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012). The party challenging the sentence bears the burden of showing that it is sub- stantively unreasonable. United States v. Boone, 97 F.4th 1331, 1338– 39 (11th Cir. 2024). We begin with Marcle’s argument that his sentence in- volved an upward variance because his guidelines range was a cus- todial sentence of three to nine months, yet the court imposed a custodial sentence within that range plus a term of supervised re- lease. Assuming without deciding that he is correct that we should consider this as an upward variance, we conclude that the district court did not abuse its discretion. The court provided sufficient jus- tification for imposing the new term of supervised release to follow the custodial sentence by noting Marcle’s personal circumstances and the need for additional treatment and supervision to ensure that he did not return to using drugs.4

4 Marcle suggests that the district court may have erroneously believed that

the Sentencing Guidelines recommended a 29-month term of supervised re- lease. We disagree. At the revocation hearing, the district court reviewed the applicable guidelines range, said that it was between “three and nine months,” and did not mention any term of supervised release. Doc. 36 at 4. This state- ment shows that the court understood that the applicable guidelines range in- cluded no term of supervised release. USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 12 of 13

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Moreover, the district court’s decision to include a 29-month term of supervised release was reasonable. Boiled down, Marcle’s challenge to the new term of supervised release amounts to a disa- greement with how the district court balanced the applicable § 3553(a) factors. But the decision about how much weight to as- sign a particular factor is committed to the sound discretion of the district court. See Croteau, 819 F.3d at 1310. Marcle says that in weighing the § 3553(a) factors the district court should have considered that he “had succeeded in supervised release for over two and a half years.” Appellant’s Br. 13. Certainly, there is evidence that he made progress in turning his life around while on supervised release. He was raising his son and maintained employment. But the district court was not required to look past other evidence showing that Marcle nevertheless continued to struggle with his drug addiction while on supervised release. He had multiple positive drug tests for cocaine and/or marijuana and was not entirely truthful with his probation officer about his co- caine use. On top of that, he admitted to his probation officer that at least one of his relapses was tied to his depression, yet he failed to participate in the required substance abuse and mental health treatment. Given this record, we cannot say that the district court abused its discretion in imposing a 29-month term of supervised release to follow his custodial sentence.5

5 We note that after serving one year of supervised release, Marcle may ask

the court to end his term of supervised release early. See 18 U.S.C. § 3583(e)(1). USCA11 Case: 25-10362 Document: 28-1 Date Filed: 04/28/2025 Page: 13 of 13

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In arguing that his sentence was unreasonable, Marcle points out that he, the government, and his probation officer all asked that the court impose a sentence with no term of supervised release. Notably, though, the parties had different perspectives on the appropriate length of a custodial sentence: Marcle asked for three months, the government sought seven months, and the pro- bation officer recommended nine months. It is not clear from the record that the probation officer would have recommended no term of supervised release if she had known that the court would impose a custodial sentence of seven months. In any event, even if there was agreement among Marcle, the government, and the pro- bation officer that the sentence should not include supervised re- lease, the district court was not required to defer to this agreement. See, e.g., United States v. Fox, 926 F.3d 1275, 1278, 1282 (11th Cir. 2019). Because we are left with no definite and firm conviction that the district court committed a clear error of judgment when it in- cluded a 29-month term of supervised release as part of the revoca- tion sentence, we conclude that Marcle’s sentence was substan- tively reasonable. See Irey, 612 F.3d at 1190. AFFIRMED.

The district court, after considering the relevant § 3553(a) factors, may termi- nate the supervised release early “if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” Id.