United States v. Kelly Gene Collins

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 30, 2018
• Docket: 17-13204
• Status: Unpublished

Opinion

Case: 17-13204 Date Filed: 03/30/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13204 Non-Argument Calendar ________________________

D.C. Docket No. 1:12-cr-00136-WS-MU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KELLY GENE COLLINS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(March 30, 2018)

Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 17-13204 Date Filed: 03/30/2018 Page: 2 of 9

Defendant Kelly Gene Collins appeals his 57-month sentence imposed

following the revocation of his probation. On appeal, Defendant argues that the

district court imposed an unlawful sentence that exceeded the statutory limits

permitted for a sentence imposed upon revocation of supervised release. He also

challenges the reasonableness of his sentence. After careful review, we affirm.

I. BACKGROUND

In 2012, Defendant pled guilty to possession of a firearm by a prohibited

person, in violation of 18 U.S.C. § 922(g)(9). As part of the plea agreement,

Defendant admitted that he possessed a 9mm machinegun pistol that did not have a

serial number, after having been convicted of assault and battery of a family

member in 2003. At the sentencing hearing in 2013, the district court calculated

the guideline range as 57 to 71 months’ imprisonment based on a total offense

level of 23 and a criminal history category of III. Defendant informed the court

that he had served in the Marine Corps for 10 years, had received two purple

hearts, a bronze star, and a silver star, and had been the sole survivor of a

helicopter crash in Iraq. Noting that the guidelines called for a significant amount

of incarceration, the district court placed significant weight on Defendant’s

military service and varied downward to five years of probation with six months of

home confinement.

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Approximately two years later and before the expiration of his term of

probation, the district court issued a warrant for Defendant’s arrest based on an

alleged violation of the conditions of his probation. Specifically, Defendant had

been arrested and charged with battery (domestic violence). Defendant later

admitted that he had violated the conditions of his probation and waived his right

to a revocation hearing on the violation.

At the revocation hearing, the district court accepted Defendant’s admission

that he had violated the terms of his probation. The Government asked the court to

resentence Defendant under 18 U.S.C. § 3565, which permits a court, after

considering the 18 U.S.C. § 3553(a) factors, to revoke probation and resentence a

defendant who has violated a condition of probation. The Government

recommended a sentence of 57 months’ imprisonment, which was the low end of

the original guideline range, given that Defendant had provided untruthful

information concerning his education and military service at the original

sentencing hearing. The court noted that Defendant had received a sentence to

which he was not entitled because of his untrue statements, and that, if it had

known the truth, it would not have sentenced Defendant to probation.

Accordingly, the district court sentenced Defendant to 57 months’ imprisonment,

followed by 12 months of supervised release.

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Defendant did not file an appeal. In 2017, he filed a motion to vacate his

sentence under 28 U.S.C. § 2255, arguing in relevant part that his attorney was

ineffective for failing to file a direct appeal. A magistrate judge entered a Report

and Recommendation (“R&R”), recommending that Defendant’s § 2255 motion be

granted to permit him to file an out-of-time appeal. The district court adopted the

R&R, granted the § 2255 motion, vacated the judgment entered in Defendant’s

case, and sentenced Defendant to 57 months’ imprisonment. This appeal followed.

II. DISCUSSION

A. Legality of Sentence Imposed Upon Probation Revocation

Defendant first argues that the district court’s imposition of a 57-month

sentence was illegal because it exceeded the statutory maximum sentence

permitted for a sentence imposed upon the revocation of supervised release.

Because Defendant did not raise this argument before the district court, our

review is limited to plain error.1 United States v. Mangaroo, 504 F.3d 1350, 1353

(11th Cir. 2007). Defendant essentially argues that his revocation sentence was

illegal because it exceeded the statutory maximum term permissible for a sentence

imposed upon revocation of supervised release under 18 U.S.C. § 3583(e)(3).

Section 3583 provides that when a court revokes supervised release, a defendant 1 “The plain-error test has four prongs: there must be (1) an error (2) that is plain and (3) that has affected the defendant’s substantial rights; and if the first three prongs are met, then a court may exercise its discretion to correct the error if (4) the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’” United States v. Madden, 733 F.3d 1314, 1320 (11th Cir. 2013). 4 Case: 17-13204 Date Filed: 03/30/2018 Page: 5 of 9

may not be required to serve more than two years in prison if the offense that

resulted in supervised release is a Class C felony. 18 U.S.C. § 3583(e)(3). A

violation of 18 U.S.C. § 922(g) is a Class C felony. See 18 U.S.C. § 924(a)(2)

(explaining that a violation of § 922(g) carries a statutory maximum of 10 years’

imprisonment); 18 U.S.C. § 3559(a)(3) (providing that a Class C felony carries an

imprisonment term between 10 and 25 years).

Defendant, however, cannot show error, let alone plain error because his

proceedings did not involve the revocation of supervised release. Instead, his

probation was revoked pursuant to 18 U.S.C. § 3565. That statutory provision

provides that, if a defendant violates a condition of probation before expiration of

the term of probation, the district court may, after considering the 18 U.S.C.

§ 3553(a) factors:

(1) continue him on probation, with or without extending the term or modifying or enlarging the conditions; or

(2) revoke the sentence of probation and resentence the defendant under subchapter A.

18 U.S.C. § 3565(a).

Defendant asserts that the district court referred to the proceedings as

supervised release revocation proceedings on more than one occasion.

Specifically, the docket entries for the initial appearance, the order scheduling the

final revocation hearing, and the final judgment refer to “Revocation of Supervised

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Release.” Because the court characterized the proceedings as supervised release

revocation proceedings, Defendant contends that the court was barred from

imposing a sentence greater than two years’ imprisonment pursuant to § 3583(e).

Defendant is simply wrong.

The record is clear that the proceedings before the district court concerned

probation revocation proceedings. Indeed, Defendant was sentenced to five years

of probation on the underlying § 922(g) offense. The arrest warrant issued for

Defendant alleged that he had violated a condition of probation. Further, at the

revocation hearing, the district court found that Defendant had “violated the terms

and conditions of probation.” Because the proceedings involved probation

revocation, the district court was permitted under § 3565 “to revoke the sentence of

probation and resentence” Defendant to 57 months’ imprisonment. See 18 U.S.C.

3565(a)(2). Accordingly, Defendant has failed to establish that the district court

committed error, much less plain error by imposing an illegal sentence.

B. Reasonableness of Sentence

Defendant argues that his 57-month sentence is unreasonable because the

district court failed to consider the § 3553(a) factors. He also contends that the

record is not sufficient for appellate review.

Using a two-step process, we review the reasonableness of a sentence

imposed by the district court for an abuse of discretion. United States v. Cubero,

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754 F.3d 888, 892 (11th Cir. 2014). We first look to whether the district court

committed any significant procedural error, such as miscalculating the advisory

guideline range, treating the Sentencing Guidelines as mandatory, failing to

consider the 18 U.S.C. § 3553(a) factors, 2 selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence. Id. Then we

examine whether the sentence is substantively reasonable in light of the totality of

the circumstances. Id. The party challenging the sentence bears the burden of

showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th

Cir. 2008).

Defendant did not object to his sentence before the district court, so our

review is limited to plain error. See United States v. Vandergrift, 754 F.3d 1303,

1307 (11th Cir. 2014) (explaining that plain-error review applies to procedural

reasonableness arguments raised for the first time on appeal). Defendant, however,

has not shown error, plain or otherwise.

First, the record refutes Defendant’s argument that the district court failed to

consider the § 3553(a) factors. In sentencing Defendant, the district court listened

2 The § 3553(a) factors include: (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 needed education or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

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to the parties’ arguments and stated that it needed to impose a sentence that would

satisfy the sentencing objectives set forth under § 3553(a). United States v.

Dorman, 488 F.3d 936, 938 (11th Cir. 2007) (“The district court need not state on

the record that it has explicitly considered each factor and need not discuss each

factor. Rather, an acknowledgment by the district court that it has considered the

defendant’s arguments and the § 3553(a) factors will suffice.” (citation omitted)).

The district court also discussed Defendant’s dishonest statements during the

original sentencing hearing, Defendant’s prior criminal convictions, and

Defendant’s history of violence, all of which bore on his history and

characteristics. The fact that the court emphasized one particular factor does not

mean that it failed to consider all of the factors. See United States v. Williams, 526

F.3d 1312, 1324 (11th Cir. 2008) (“[T]he fact that the district court emphasized

one § 3553(a) factor, the seriousness of the offense, does not mean that [the

defendant’s] sentence was unreasonable.”).

We are also not persuaded by Defendant’s argument that the record is not

sufficiently developed for us to review the reasonableness of his sentence. The

district court explained that it would apply the guideline range that was applicable

at the original sentencing: 57 to 71 months’ imprisonment. See United States v.

Cook, 291 F.3d 1297, 1300 (11th Cir. 2002) (explaining that “a district court may

sentence a probation violator within the range that was available at the time of the

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initial sentencing” (emphasis in original)). In fact, the district court also

considered whether, given Defendant’s obstruction of justice, it was appropriate to

deny him the three-level reduction for acceptance of responsibility that he had

received at the original sentencing hearing, which would have resulted in a higher

guideline range. Nonetheless, the district court followed the Government’s

recommendation and imposed a 57-month sentence. We conclude that the court

“set forth enough to satisfy [us] that [it] ha[d] considered the parties’ arguments

and ha[d] a reasoned basis for exercising [its] own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

Accordingly, Defendant’s sentence is AFFIRMED.3

3 We also reject Defendant’s argument that the district court failed to elicit objections to the sentence, in violation of United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993). After imposing sentence, although the court stated, “Anything further . . .?,” it immediately said, “Any objections or other matters we need to put on the record.” See United States v. Maurice, 69 F.3d 1553, 1557 (11th Cir. 1995) (explaining that a district court complies with Jones by specifically asking for objections following sentencing). 9