United States v. Norris Lundy

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 21, 2018
• Docket: 17-13527
• Status: Unpublished

Opinion

Case: 17-13527 Date Filed: 05/21/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13527 Non-Argument Calendar ________________________

D.C. Docket No. 1:09-cr-20632-KMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORRIS LUNDY, a.k.a. Polo,

Defendant-Appellant. ________________________

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

(May 21, 2018)

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM: Case: 17-13527 Date Filed: 05/21/2018 Page: 2 of 5

Norris Lundy appeals the revocation of his supervised release and his

subsequent sentence of eight months’ imprisonment and twenty eight months’

supervised release, which the district court ordered after he failed two drug tests in

violation of the conditions of his supervised release. 1 On appeal, he argues that the

district court erred in revoking his supervised release by punishing his status as a

drug addict in violation of the Eighth Amendment. He also argues that his

sentence was unreasonable because the district court failed to consider his

addiction status and progress in treatment under U.S.S.G. § 7B1.4. After careful

review, we affirm.

I.

Generally, we review a district court’s decision to revoke supervised release

for abuse of discretion, and we review the sentence imposed upon revocation for

reasonableness. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.

2014). However, “[w]hen the appealing party does not clearly state the grounds

for an objection in the district court, we are limited to reviewing for plain error.”

United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). At the hearing

below, Lundy stated that “we’ll object on the basis and note our previous request

1 Lundy completed his eight months of imprisonment on March 23, 2018. However, because he still has to serve twenty eight months of supervised release, we do not consider his appeal moot. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998) (“Once the convict’s sentence has expired, . . . some concrete and continuing injury other than the now-ended incarceration or parole—some ‘collateral consequence’ of the conviction—must exist if the suit is to be maintained.”). 2 Case: 17-13527 Date Filed: 05/21/2018 Page: 3 of 5

for treatment given the nature of these violations.” Neither the objection itself nor

the context of the objection in the record provides any clear indication of the

grounds for the objection; therefore, we are limited to reviewing Lundy’s claims

for plain error. “An appellate court may not correct an error the defendant failed to

raise in the district court unless there is: (1) error, (2) that is plain, and (3) that

affects substantial rights and then only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (alterations adopted).

II.

Under 18 U.S.C. § 3583(e)(3), a district court may revoke a term of

supervised release and impose a term of imprisonment based upon a preponderance

of the evidence showing that a defendant has violated a condition of supervised

release. United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006) (per

curiam). When a defendant possesses a controlled substance in violation of the

conditions of supervised release, revocation and imprisonment are generally

mandatory, 18 U.S.C. § 3583(g)(1), but when a defendant fails a drug test, the

district court has discretion to grant the defendant an exception. 18 U.S.C.

§ 3583(d). In determining whether an exception is warranted, the Guidelines

require that the court consider “the availability of appropriate substance abuse

programs, or a defendant’s current or past participation in such programs.”

U.S.S.G. § 7B1.4 cmt. 6.

3 Case: 17-13527 Date Filed: 05/21/2018 Page: 4 of 5

Lundy first argues that the revocation of his sentence violated the Eighth

Amendment because it punished his status as a drug addict, in violation of the

Supreme Court’s holding in Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417

(1962). In Robinson, the Court struck down a California statute that made the

“‘status’ of narcotic addiction a criminal offense” for which the offender would be

“continuously guilty” until he reformed, regardless of whether he actually

possessed or used illegal drugs. Id. at 666, 82 S. Ct. at 1420. The Court went on to

hold that “a state law which imprisons a person thus afflicted as a criminal, even

though he has never touched any narcotic drug within the State or been guilty of

any irregular behavior there, inflicts a cruel and unusual punishment.” Id. at 667,

82 S. Ct. at 1420–21. In this case, the district court revoked Lundy’s supervised

release not because he was an addict, but because he twice tested positive for

cocaine, which evidenced Lundy’s possession and use of a controlled substance in

direct violation of the conditions of his supervised release. Punishing these actions

did not violate the Eighth Amendment.

Lundy also argues that the district court committed plain error because it

failed to take into account Lundy’s status as a drug addict and his progress in

counseling as required by the Guidelines. We find that the district court did not

plainly err. The court explicitly stated that it considered Lundy’s arguments for

reinstatement of his supervised release, rejected them, and then based its

4 Case: 17-13527 Date Filed: 05/21/2018 Page: 5 of 5

revocation decision on permissible factors under 18 U.S.C. § 3582. To the extent

that the court also considered 18 U.S.C. § 3553(a)(2)(A) factors in imposing its

sentence, Lundy has not shown any plain error under current law. See Vandergrift,

754 F.3d at 1308–09. Lundy admitted on the record that the district court correctly

calculated his guideline range, and he has not shown that the district court

committed any plain error in sentencing him to the bottom of that range.

The revocation of Lundy’s supervised release did not violate the Eighth

Amendment, and the district court did not commit plain error in sentencing Lundy

to eight months’ imprisonment and twenty eight months of additional supervised

release.

AFFIRMED.