United States v. Terry Wimberly

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 17, 2010
• Docket: 09-14964
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-14964 ELEVENTH CIRCUIT MAY 17, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK

D. C. Docket No. 97-00019-CR-CDL-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY WIMBERLY,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Georgia _________________________

(May 17, 2010)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:

Terry Wimberly appeals his 36 month sentence imposed upon the revocation of his supervised release pursuant to 18 U.S.C. § 3583(e)(3). Wimberly argues that

his sentence: (1) is procedurally unreasonable because the district court failed to

consider all of the 18 U.S.C. § 3553(a) factors, and (2) substantively unreasonable

because it was overly harsh and unnecessarily imposed to run consecutive to a 120

month sentence that he is serving in the Northern District of Illinois. Upon review

of the record and consideration of the parties’ briefs, we affirm.

I. BACKGROUND

On August 26, 1997, Wimberly pleaded guilty to one count of possession

with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1).1

Wimberly was originally sentenced to 96 months of imprisonment followed by 60

months of supervised release. The final sentence reflected a downward departure

pursuant to the United States Sentencing Guidelines (“U.S.S.G”). U.S.S.G. §

5K1.1. On April 8, 2005, Wimberly began the supervised release portion of his

sentence.

On April 17, 2008, Wimberly’s probation officer filed a “Petition for Action

on Supervised Release,” charging Wimberly with four violations of the conditions

of his supervised release. Doc. 267. Specifically, the petition alleged that

Wimberly: (1) left the judicial district without permission, (2) associated with

1 See 1998 Presentence Investigation Report (“PSI”) at 1–2.

2 persons involved in criminal activity, (3) associated with a convicted felon, and (4)

failed to refrain from violating the law. Id. According to the petition, on

January 22, 2008, Wimberly committed a controlled-substance offense in the

Northern District of Illinois. Id. An attorney was appointed to represent

Wimberly, and a magistrate judge held a preliminary revocation hearing. Doc.

280.

Prior to Wimberly’s final revocation hearing, the United States Probation

Office prepared a Revocation Report restating the violations with which Wimberly

was charged. It noted that, in 2006, Wimberly also violated the conditions of his

supervised release by providing false information to a police officer, possessing a

false identification document, and failing to carry a state driver’s license.

Consequently, the court modified the conditions of Wimberly’s supervised release

to include 40 hours of community service. Doc. 250. According to the Revocation

Report, in January 2008, Drug Enforcement Administration officials arrested

Wimberly in Illinois for conspiracy to distribute and possession with intent to

distribute five kilograms or more of cocaine. For this offense, the court in the

Northern District of Illinois sentenced Wimberly to 120 months of imprisonment

followed by 5 years of supervised release.

The Revocation Report set out that, because one of Wimberly’s violations

3 involved a controlled-substance offense punishable by a term of imprisonment

exceeding one year, it was classified as a Grade A violation. U.S.S.G. §

7B1.1(a)(1), (b). Because Wimberly’s criminal history category at the time of his

original sentencing was VI, the probation officer calculated his advisory guideline

range to be 33 to 41 months of imprisonment. U.S.S.G. § 7B1.4(a). However, the

statutory maximum term of imprisonment was 36 months because Wimberly’s

original offense was a Class B felony, so Wimberly’s final guideline range was 33

to 36 months of imprisonment, pursuant to U.S.S.G. § 7B1.4(b)(3)(A). See

18 U.S.C. § 3583(e)(3).

On September 1, 2009, the district court held Wimberly’s revocation

hearing. Doc. 294. The district court recounted the charged violations and

confirmed Wimberly’s understanding of them. Id. at 3–4. Wimberly stated that he

did not contest any of the violations. The district court then concluded that the

four violations occurred and revoked Wimberly’s term of supervised release. Id.

at 5. Wimberly requested that his revocation prison term run concurrently with his

sentence in Illinois, pursuant to the district court’s discretion under 18 U.S.C. §§

3553(a) and 3584(b). Id. at 5–6. Wimberly argued that the ten-year sentence

imposed by the Illinois district court was sufficient to fulfill the goals of 18 U.S.C.

§ 3553(a). Id. at 6.

4 The district court announced that it had taken the Sentencing Guidelines

under advisement and determined that the advisory sentencing range was 33 to 36

months of imprisonment. Id. at 6. The district court noted that, by committing the

violations, Wimberly “showed a complete disregard for [the] conditions [of his

supervised release] and a complete lack of respect for the law.” Doc. 294 at 7.

The district court gave reasons why Wimberly’s revocation sentence should run

consecutive to his Illinois sentence. It explained that Wimberly was being

separately punished for violating the conditions of his supervised release in order

“to reflect the seriousness of the violation of supervised release, to promote respect

for the law, and to provide just punishment for the offense and adequate deterrence

for this conduct.” Id. at 8. The district court also found that the sentence

adequately addressed the totality of the circumstances and complied with the

sentencing factors under 18 U.S.C. § 3553(a). Id. When prompted, Wimberly did

not object to the sentence or the manner in which it was imposed. Id. at 9.

II. STANDARD OF REVIEW

Wimberly objects to the district court’s decision to revoke his supervised

release and impose sentence for the first time on appeal. Therefore, this issue is

reviewed for plain error. See United States v. Gresham, 325 F.3d 1262, 1265 (11th

Cir. 2003). Under the plain error standard, Wimberly “must show that: (1) an error

5 occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it

seriously affected the fairness of the judicial proceedings.” Id. (citation omitted).2

III. DISCUSSION

If a district court “finds by a preponderance of the evidence that the

defendant violated a condition of supervised release,” the district court may revoke

a term of supervised release, after considering the factors set forth in 18 U.S.C. §

3553(a)(1), (a)(2)(B)–(D), and (a)(4)–(7), and impose a sentence of imprisonment

for the violation. 18 U.S.C. § 3583(e)(3). The term imposed cannot exceed the

statutory maximum, which is determined by the grade of the violation. Id. §

3583(e)(3).

Pursuant to 18 U.S.C. § 3584(a), “if a term of imprisonment is imposed on a

defendant who is already subject to an undischarged term of imprisonment, the

terms may run concurrently or consecutively . . . .” When determining whether

sentences are to run consecutively or concurrently, the district court “shall

consider, as to each offense for which a term of imprisonment is being imposed,

the factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). In the context of

revocation of a defendant’s supervised release, the district court retains its

2 Even if Wimberly had objected, he has not shown that his sentence was procedurally unreasonable. Furthermore, the sentence was substantively reasonable because the district court considered all of the relevant § 18 U.S.C. 3553(a) factors. Doc. 294 at 8–9.

6 discretion to impose a concurrent or a consecutive sentence. United States v.

Quinones 136 F.3d 1293, 1295 (11th Cir. 1998) (per curiam).

After review of the record, we find that both of Wimberly’s arguments have

no merit because there was no error, plain or otherwise in the district court’s

revocation of Wimberly’s supervised release. First, the plain language of 18

U.S.C. § 3583 entitled the district court to revoke Wimberly’s supervised release if

he violated a condition of his release. Additionally, the record reflects that

Wimberly admitted to violating the conditions of his supervised release.

Specifically, Wimberly stated that he did not contest any of the violations. Doc.

294 at 5. Consequently, the district court explained, and Wimberly indicated that

he understood, that his failure to contest the violations constitute an admission that

the violations occurred. Id.

Second, we reject Wimberly’s contention that the district court committed

plain error by imposing a 36 month sentence to run consecutive to a 120 month

sentence that he is serving in the Northern District of Illinois. Whether the terms

of Wimberly’s sentence should run consecutive or concurrent remains a question

entrusted to the district court’s sound discretion pursuant to 18 U.S.C. § 3584.

IV. CONCLUSION

We find that Wimberly’s admission supported the district court’s finding

7 that he violated the conditions of his supervised release by a preponderance of the

evidence. The district court did not err by revoking his supervised release and

imposing a consecutive sentence. Accordingly, we affirm.

AFFIRMED.