United States v. Timothy Joseph Aubry

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 10, 2019
• Docket: 17-15726
• Status: Unpublished

Opinion

Case: 17-15726 Date Filed: 01/10/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-15726 Non-Argument Calendar

D.C. Docket No. 2:15-cr-00283-LSC-HNJ-21

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY JOSEPH AUBRY, a.k.a. Tweety, a.k.a. FNU LNU,

Defendant-Appellant.

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

(January 10, 2019)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-15726 Date Filed: 01/10/2019 Page: 2 of 5

Timothy Aubry appeals his lifetime supervised release term. He argues that

his lifetime supervised release term was procedurally unreasonable because the

district court failed to adequately explain its decision, and substantively

unreasonable because the district court ignored 18 U.S.C. § 3553(a)’s mandate to

impose a sufficient term no greater than necessary.

We generally review the reasonableness of a sentence under a deferential

abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41

(2007). We determine, first, whether the district court committed any significant

procedural error, and second, whether the sentence was substantively reasonable

under the totality of the circumstances. United States v. Turner, 626 F.3d 566, 573

(11th Cir. 2010).

In analyzing a sentence for significant procedural error, we examine factors

such as whether the district court failed to calculate (or improperly calculated) the

guideline range, treated the guidelines as mandatory, failed to consider the § 3553(a)

factors, selected a sentence based on clearly erroneous facts, or failed to adequately

explain the chosen sentence. Gall, 552 U.S. at 51. A district court, in explaining its

sentence, is not required to explicitly articulate its consideration of each sentencing

factor, so long as the record reflects the court’s consideration of many of those

factors. United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010); but see

United States v. Livesay, 525 F.3d 1081, 1093 (11th Cir. 2008) (holding a district

2 Case: 17-15726 Date Filed: 01/10/2019 Page: 3 of 5

court’s sentence was procedurally unreasonable where it failed to give any reasoning

or indication of an explanation beyond listing the § 3553(a) factors).

Where a district court offers a party an opportunity to object and that party

does not object to procedural reasonableness at the time of sentencing, we review for

plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). In

order to establish plain error, a party must show that (1) the district court erred; (2)

the error was plain; and (3) the error affected the party’s substantial rights. United

States v. Olano, 507 U.S. 725, 732 (1993). If all three conditions are met, we may

exercise our discretion to notice a forfeited error, but only if the error seriously

affected the fairness, integrity, or public reputation of judicial proceedings. Id.

We look at whether the sentence is substantively reasonable under the totality

of the circumstances. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

The weight accorded to any given § 3553(a) factor is a matter committed to the

sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th

Cir. 2007). A district court, however, abuses its discretion when it (1) fails to afford

consideration to relevant factors that were due significant weight; (2) gives

significant weight to an improper or irrelevant factor; or (3) commits a clear error of

judgment in considering the proper factors. United States v. Irey, 612 F.3d 1160,

1189 (11th Cir. 2010) (en banc). We will remand only if we are left with the definite

and firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors. Id. at 1190. 3 Case: 17-15726 Date Filed: 01/10/2019 Page: 4 of 5

Congress intended supervised release to assist individuals in their transition to

community life, and thus supervised release fulfills rehabilitative ends, distinct from

those served by incarceration. United States v. Johnson, 529 U.S. 53, 59 (2000).

Accordingly, “[s]entencing courts, in determining the conditions of a defendant’s

supervised release, are required to consider, among other factors, ‘the nature and

circumstances of the offense and the history and characteristics of the defendant,’

‘the need . . . to afford adequate deterrence to criminal conduct; . . . to protect the

public from further crimes of the defendant; . . . and to provide the defendant with

needed educational or vocational training, medical care, or other correctional

treatment.’” Id. at 59-60 (quoting 18 U.S.C. § 3553(a)). Additionally, we may

consider a defendant’s ability to petition the district court for modification of the

conditions of supervised release when weighing reasonableness under the totality of

the circumstances. See United States v. Trailer, 827 F.3d 933, 937-38 (11th Cir.

2016).

Here, the district court did not procedurally err, plainly or otherwise, when it

sentenced Aubry to a lifetime term of supervised release because it adequately

explained the basis for the sentence and the record indicates its consideration of

several of the applicable § 3553(a) factors including the nature and circumstances of

Aubry’s offense, his history and characteristics, and the need to provide him with

correctional treatment. Furthermore, the supervised release term is not substantively

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unreasonable in light of the applicable § 3553(a) factors and the totality of the

circumstances.

AFFIRMED.