United States v. Percy McClinton Snow

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 4, 2018
• Docket: 17-14515
• Status: Unpublished

Opinion

Case: 17-14515 Date Filed: 01/04/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14515 Non-Argument Calendar ________________________

D.C. Docket No. 1:04-cr-00263-CG-D-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PERCY MCCLINTON SNOW,

Defendant-Appellant.

________________________

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

(January 4, 2018)

Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM: Case: 17-14515 Date Filed: 01/04/2018 Page: 2 of 5

Percy Snow appeals the district court’s imposition of a six-month term of

imprisonment after the revocation of his supervised release. He contends the court

clearly erred in finding he violated the terms of his supervised release by failing to

report a change of residence. In addition, Snow argues that his sentence was

procedurally and substantively unreasonable. After review, 1 we affirm in part and

remand in part for resentencing.

I. DISCUSSION

A. Violation of Supervised Release

By statute, a district court is authorized to revoke a term of supervised

release where the supervisee violates a condition of the release. 18 U.S.C.

§ 3583(e)(3). To do so, the court must find by a preponderance of the evidence

that the violation occurred. Id.; United States v. Sweeting, 437 F.3d 1105, 1107

(11th Cir. 2006). The district court did not clearly err in finding that Snow

changed his residence without properly informing his probation officer. Snow told

the officer only that he would be staying in a motel for a few days, but did not

notify him that he remained there more than one month later. Moreover, Snow’s

1 A district court’s revocation of supervised release is reviewed under an abuse of discretion standard. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). We accept the district court’s findings of fact unless they were clearly erroneous. United States v. Holland, 874 F.2d 1470, 1473 (11th Cir. 1989).

We review the sentence imposed by the district court upon revocation of supervised release for reasonableness, applying a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). 2 Case: 17-14515 Date Filed: 01/04/2018 Page: 3 of 5

own testimony showed that he did not intend to remain at his prior residence;

Snow freely admitted that he planned to buy a house and move there directly from

the motel where he was staying. Furthermore, Snow’s stepmother told the officer

that he had moved away, and his power and phone service were disconnected. On

these facts, the district court did not clearly err in finding that Snow had changed

his residence without notice in violation of the conditions of his supervised release.

See United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011) (holding

that a factual finding is clearly erroneous when we are “left with the definite and

firm conviction that a mistake has been committed” after reviewing all of the

evidence).

B. Sentencing

Pursuant to § 3583(e), upon finding that the defendant violated a condition

of supervised release, a district court may revoke the term of supervised release

and impose a term of imprisonment after considering certain specific factors set

forth in 18 U.S.C. § 3553(a). Id. § 3583(e)(3). In reviewing whether a sentence is

reasonable, we must first ensure that the district court did not commit a significant

procedural error, such as “failing to consider the § 3553(a) factors . . . or failing to

adequately explain the chosen sentence.” Gall, 552 U.S. at 51. At the time of

sentencing, the district court must state the reasons for its imposition of a particular

sentence. 18 U.S.C. § 3553(c); see United States v. Livesay, 525 F.3d 1081, 1090

3 Case: 17-14515 Date Filed: 01/04/2018 Page: 4 of 5

(11th Cir. 2008). “[T]he sentencing judge should set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.” United States v.

Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (quotation omitted).

Snow contends the district court failed to identify the § 3553(a) factors upon

which it relied and that it neglected to explain its sentence. We agree. The district

court made no mention of the § 3553(a) factors at all and only briefly referenced

the applicable Guidelines range before summarily handing down Snow’s sentence.

The entirety of the court’s deliberation reads as follows:

I have examined and reviewed the chapter seven provisions. I do find them to be appropriate. They are six to 12 months. I hereby sentence you to the custody of the United States Bureau of Prisons to be imprisoned for a term of six months. Following that, 54 months of supervised release will be reimposed, with all the previously imposed terms to be reimposed, and remain in full force and effect.

The court sentenced Snow without any explanation of its decision, and with

no indication as to whether it considered the applicable § 3553(a) factors. Snow

presented evidence that he had passed all of his drug tests since his release, and

that he had maintained steady and diligent employment as a result of vocational

training he received while incarcerated. Given its limited discussion, we are not

satisfied that the court considered Snow’s arguments and how they might relate to

the factors it was required to weigh, such as the “nature and circumstances of the

offense and the history and characteristics of the defendant,” the need “to afford 4 Case: 17-14515 Date Filed: 01/04/2018 Page: 5 of 5

adequate deterrence to criminal conduct,” or “to protect the public from further

crimes,” or to “provide the defendant with needed educational or vocational

training.” 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D); see also id. § 3583(e)(3)

(requiring the court to consider these factors).

II. CONCLUSION

Accordingly, we AFFIRM the district court’s finding that Snow violated the

condition of his supervised release requiring him to notify his probation officer of a

change in residence. However, we conclude Snow’s sentence was procedurally

unreasonable, so we VACATE his sentence and REMAND to the district court for

resentencing.