United States v. Theron Peterson

597 F. App'x 1045
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 21, 2015
Docket14-11629
StatusUnpublished

This text of 597 F. App'x 1045 (United States v. Theron Peterson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Theron Peterson, 597 F. App'x 1045 (11th Cir. 2015).

Opinion

PER CURIAM:

Theron Peterson appeals his above-guideline sentence of 24-months imprisonment, imposed after the revocation of his supervised release. He first argues that the district court erred by imposing an upward departure without notice. He next argues that his sentence is procedurally and substantively unreasonable because *1046 the district court neither considered the 18 U.S.C. § 3553(a) factors nor gave him the opportunity to confront relevant facts that developed at the sentencing hearing. After a thorough review of the record, we affirm.

I.

Peterson first argues that the district court erred by departing upward without giving him the required notice. Peterson did not object to the district court’s failure to provide notice. When a defendant does not object to a district court’s ruling, we review it for plain error. United States v. Perez, 661 F.3d 568, 583 (11th Cir.2011) (per curiam). Plain error exists if: “(1) an error occurred, (2) the error was plain, (3) the error affected substantial rights in that it was prejudicial and not harmless, and (4) the error seriously affected the fairness, integrity, or public reputation of a judicial proceeding.” Id.

At sentencing, Peterson presented a complementary letter from his employer. Because the letter had not been verified, the district court recessed so Peterson’s attorney could call the employer for verification. The employer said he had not signed the letter. Peterson admitted to forging the signature, but stated that the contents of the letter were true and that he forged it only because he could not reach his employer. After asking the probation officer for the maximum term of imprisonment, the district court imposed the maximum of 24 months. It stated:

And I do want the record to reflect that, of course, what swayed me here was the fact that I was given a letter which purported to be from the defendant’s supervisor, which actually appears to have been written by someone other than the supervisor and the supervisor’s name forged. In addition, it was represented to me through counsel at least that Mr. Peterson was employed when he hasn’t been employed since October 2013.
So, for those reasons and because Mr. Peterson came in here and attempted to obstruct justice and because he violated the terms and conditions of his supervised release and he has a record longer than my arm, for all those reasons the maximum term is the most appropriate-term.

Federal Rule of Criminal Procedure 32, which governs “Sentencing and Judgment,” provides: “Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.” Fed.R.Crim.P. 32(h). It further provides: “At sentencing, the court ... must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence.” Id. 32(f)(1) & (1)(C). The Supreme Court has held that the notice requirement applies only to departures, not to variances. Irizarry v. United States, 553 U.S. 708, 714-16, 128 S.Ct. 2198, 2202-04, 171 L.Ed.2d 28 (2008). 1

The Supreme Court has defined “departure” as “a term of art under the Guidelines”: it “refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.” Id. at 714, 128 S.Ct. at 2202. To determine whether the district court applied a departure or a *1047 variance, we consider (1) “whether the district court cited to a specific Guideline departure provision” and (2) whether “the court’s rationale was based on its determination that the Guidelines were inadequate.” United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir.2009). In Ka-pordelis we held that a court imposed a variance, not a departure, because it did not cite to a specific departure provision and its rationale was based on the § 3553(a) factors and a finding that the Guidelines were inadequate. Id.

The district court did not plainly impose a departure here. It did not cite to a specific departure provision, and the record reflects that its decision was based on the § 3553(a) factors. 2 Because the sentence was not plainly a departure, it was not plain error to vary upward without giving notice.

II.

Peterson also argues the sentence was procedurally or substantively unreasonable. We review a sentence imposed upon revocation of supervised release for reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir.2008) (per curiam). We review reasonableness for abuse of discretion. Gall v. United States, 552 U.S. 38, 40-41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). We “first ensure that the district court committed no significant procedural error, such as ... improperly calculating ... the Guidelines range, ... failing to consider the § 3553(a) factors, ... or failing to adequately explain the chosen sentence.” Id. at 51, 128 S.Ct. at 597. We then ask whether the sentence was substantively reasonable in light of the totality of the circumstances. Id. The party challenging the sentence must show unreasonableness. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.2010).

When imposing a sentence of imprisonment upon revocation of supervised release, the district court may consider: (1) the nature and circumstances of the offense and the defendant’s history and characteristics; (2) affording adequate deterrence; (3) protecting the public from further crimes of the defendant; (4) providing the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (5) the kinds of sentences available and the Guidelines range; (6) the Sentencing Commission’s pertinent policy statements; (7) avoiding unwarranted sentencing disparities; and (8) providing restitution to any victims. 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7); see also id. § 3583(e).

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Related

United States v. David William Scott
426 F.3d 1324 (Eleventh Circuit, 2005)
United States v. William Herman Dorman
488 F.3d 936 (Eleventh Circuit, 2007)
United States v. Velasquez Velasquez
524 F.3d 1248 (Eleventh Circuit, 2008)
United States v. Shaw
560 F.3d 1230 (Eleventh Circuit, 2009)
United States v. Kapordelis
569 F.3d 1291 (Eleventh Circuit, 2009)
Irizarry v. United States
553 U.S. 708 (Supreme Court, 2008)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Tome
611 F.3d 1371 (Eleventh Circuit, 2010)
United States v. Irey
612 F.3d 1160 (Eleventh Circuit, 2010)
United States v. Perez
661 F.3d 568 (Eleventh Circuit, 2011)

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Bluebook (online)
597 F. App'x 1045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-theron-peterson-ca11-2015.