United States v. Laforest Carmichael

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 26, 2019
• Docket: 19-10652
• Status: Unpublished

Opinion

Case: 19-10652 Date Filed: 09/26/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10652 Non-Argument Calendar ________________________

D.C. Docket No. 1:98-cr-00024-SLB-MHH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAFOREST CARMICHAEL, a.k.a. LaForrest Carmichael

Defendant-Appellant.

________________________

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

(September 26, 2019)

Before MARCUS, JORDAN and FAY, Circuit Judges.

PER CURIAM:

Laforest Carmichael appeals his 36-month sentence, which the district court

imposed upon mandatory revocation of his supervised release. He argues that his

statutory maximum sentence was substantively unreasonable because the district Case: 19-10652 Date Filed: 09/26/2019 Page: 2 of 5

court failed to properly weigh the 18 U.S.C. § 3553(a) factors and imposed a

sentence that was greater than necessary to serve the sentencing purposes set forth

in § 3553(a). After careful review, we affirm.

We generally review a sentence imposed upon revocation of supervised

release for reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248,

1252 (11th Cir. 2008). When we review a sentence for “reasonableness,” we

“merely ask[] whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)). The party challenging the sentence bears the burden of establishing

that it is unreasonable based on the record and the § 3553(a) factors. United States

v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).1

The district court must revoke a term of supervised release if the defendant

possessed a controlled substance or a firearm in violation of the conditions of

supervised release. 18 U.S.C. § 3583(g). Section 3583(g) does not mention

consideration of the § 3553(a) factors with respect to mandatory revocations. See

id. Thus, we’ve said that “when revocation of supervised release is mandatory under

1 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). 2 Case: 19-10652 Date Filed: 09/26/2019 Page: 3 of 5

18 U.S.C. § 3583(g), the statute does not require consideration of the § 3553(a)

factors.” United States v. Brown, 224 F.3d 1237, 1241 (11th Cir. 2000) (emphasis

in original), abrogated in part on other grounds by Tapia v. United States, 564 U.S.

319 (2011). Indeed, when a defendant is sentenced to a mandatory term of

imprisonment pursuant to § 3583(g), the only limitation is that the term of

imprisonment must not “exceed the maximum term of imprisonment authorized

under [§ 3583](e)(3),” which is three years’ imprisonment when the original

underlying offense was a Class B felony. 18 U.S.C. § 3583(e)(3), (g).

The traditional substantive reasonableness review, on the other hand,

“involves examining the totality of the circumstances, including an inquiry into

whether the statutory factors in § 3553(a) support the sentence in question.” United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). “[W]e will not second

guess the weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)]

factor . . . as long as the sentence ultimately imposed is reasonable in light of all the

circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir.

2010) (quotation, alteration and emphasis omitted). Although we do not

automatically presume a sentence falling within the guideline range is reasonable,

we ordinarily expect it to be reasonable. United States v. Hunt, 526 F.3d 739, 746

(11th Cir. 2008).

3 Case: 19-10652 Date Filed: 09/26/2019 Page: 4 of 5

Here, Carmichael has not shown that his 36-month sentence, imposed upon

mandatory revocation, is substantively unreasonable based on the district court’s

consideration of the § 3553(a) factors. For starters, because revocation of

Carmichael’s supervised release was mandatory under 18 U.S.C. § 3583(g), it is

clear under our case law that the district court was not required to consider the §

3553(a) factors. See Brown, 224 F.3d at 1241. Brown remains good law; as we’ve

held, the Supreme Court’s decision in Tapia only abrogated Brown’s proposition

that the district court may consider rehabilitation. United States v. Vandergrift, 754

F.3d 1303, 1309 (11th Cir. 2014) (recognizing that Tapia abrogates Brown’s holding

that “a court may consider a defendant’s rehabilitative needs when imposing a

specific incarcerative term following revocation of supervised release”); see United

States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (stating that a prior panel’s

holding is binding unless and until it is overruled or abrogated by the Supreme Court

or by this Court sitting en banc). Thus, the district court was not required to consider

the § 3553(a) factors at all, so Carmichael’s claim that the district court improperly

weighed those factors is irrelevant.

But even though the district court was not required to weigh the § 3553(a)

factors, it did so anyway and Carmichael has not shown that it weighed them

improperly. As the record reveals, the district court expressly said that it had

considered the § 3553(a) factors; these include Carmichael’s lengthy criminal

4 Case: 19-10652 Date Filed: 09/26/2019 Page: 5 of 5

history of similar offenses, the seriousness of his violation, the need to deter him,

and the need to protect the public from him committing more drug-related crimes or

possessing a firearm. See 18 U.S.C. § 3553(a). The district court also considered

the sentencing guidelines, and all of Carmichael’s arguments in mitigation, including

that he had taken substantial steps at rehabilitation and that he had overserved his

original sentence. Nevertheless, the court determined that the appropriate sentence

was the statutory maximum, and Carmichael has not shown how this sentence was

unreasonable in light of all the circumstances presented. As we’ve said, we

ordinarily expect a sentence below the statutory maximum and within the guideline

range to be reasonable. Hunt, 526 F.3d at 746; see 18 U.S.C. § 3583(g). Therefore,

even under a traditional substantive reasonableness analysis, the district court did

not abuse its discretion in imposing the 36-month sentence, and we affirm.

AFFIRMED.