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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10900 Non-Argument Calendar ________________________
D.C. Docket No. 1:06-cr-20044-MGC-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TYRONE DUNKLEY,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(April 28, 2020)
Before WILSON, MARTIN, and BRANCH, Circuit Judges.
PER CURIAM: Case: 19-10900 Date Filed: 04/28/2020 Page: 2 of 16
Tyrone Dunkley appeals the revocation of his supervised release and
accompanying 48-month prison sentence. He argues that his sentence is
procedurally and substantively unreasonable, and that the district court violated his
due process rights by failing to adequately advise him of his rights during his
sentencing hearing. After careful consideration, we affirm.
I.
In 2006, Dunkley pled guilty to one count of conspiracy to possess with
intent to distribute cocaine, cocaine base, and heroin, in violation of 21 U.S.C.
§ 846. The district court sentenced him to 120-months imprisonment, followed by
five years of supervised release. Dunkley served his term of imprisonment and
began his supervised release on December 9, 2015.
On October 20, 2018, Dunkley was arrested for Domestic Battery by
Strangulation, in violation of Florida Statute § 784.041(2). Dunkley’s fiancée told
law enforcement that she and Dunkley had a verbal altercation that turned physical
when Dunkley began choking her, causing her to lose consciousness. Upon
regaining consciousness, she ran out of her home and called 911. When law
enforcement arrived, Dunkley admitted he had an altercation with his fiancée but
said he merely “brush[ed] up” against her when leaving the room. Dunkley was
arrested, but the State Attorney declined to pursue charges related to the alleged
domestic battery.
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On October 30, 2018, the probation office submitted a petition alleging
Dunkley had violated the terms of his supervised release as a result of the domestic
battery. About a month later, the probation office provided the district court with a
Report and Recommendation for Final Revocation Hearing (“R&R”). Among
other things, the R&R (1) summarized the circumstances surrounding Dunkley’s
arrest; (2) stated that the statutory maximum penalty for Dunkley’s violation of his
supervised release was 5-years imprisonment with a life term of supervised release;
and (3) calculated Dunkley’s sentencing guideline range for his alleged violation,
based on a criminal history category V, to be 46 to 57 months under United States
Sentencing Guideline § 7B1.4(a)(2).
At Dunkley’s revocation hearing, the parties informed the district court that
Dunkley’s fiancée chose not to cooperate and instead intended to testify on
Dunkley’s behalf during the revocation proceedings. As a result, the government
requested a continuance so it could try and locate an additional witness to testify
against Dunkley. Dunkley’s counsel agreed, indicating that Dunkley would also
want the opportunity to interview the additional witness as part of a “full-blown
[revocation] hearing.” The district court granted the government’s continuance
request.
At Dunkley’s final revocation hearing, the district court began by asking
Dunkley how he planned to proceed. Dunkley’s counsel told the district court that
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Dunkley would be admitting the violation and would reserve argument for later.
The court then asked Dunkley a brief series of questions. It asked Dunkley if he
“had an opportunity to speak to [his] lawyer about the sole violation contained in
the petition,” which Dunkley confirmed. The court then asked Dunkley whether
he wished to admit the violation alleged in the petition submitted by the probation
office, and he said he did. Finally, the court asked Dunkley whether he understood
that he “did have a right to have a hearing,” and that by admitting to the violation,
he was “giving that [right] up.” Dunkley said yes.
The district court then asked the parties how they wished to proceed. The
government said it had experienced “evidentiary challenges” in proving Dunkley’s
supervised release violation, including (a) the fact that the State Attorney’s Office
had declined to take action against Dunkley; and (b) the victim’s refusal to
cooperate with the government. The government explained that, “[b]ased on the
totality of the circumstances,” the parties had agreed to a joint sentencing
recommendation of one year and one day in custody. The government did note,
however, that it disagreed with Dunkley as to whether supervision should follow
his one-year prison term. Dunkley’s counsel confirmed that Dunkley agreed with
the proposed prison term but argued that supervised release was unwarranted
because Dunkley had not committed any other violations since being released from
prison three years earlier. Dunkley’s counsel also argued that “[t]his is not a case
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where [Dunkley] had any other issues or that there is a concern that he might
violate again.”
The district court confirmed that Dunkley did not wish to make any further
statements, then imposed a 48-month prison term with no supervised release to
follow. The court explained its sentence:
After a review of the record, the arguments of counsel, as well as a review of the probation report in this matter, I sentence the defendant as follows: The defendant is hereby committed to the Bureau of Prisons for a term of 48 months. No supervised release to follow.
The court then asked if Dunkley or his counsel had any “object[ions] to the court’s
finding of fact or the manner in which the sentence was pronounced.” Dunkley’s
counsel objected only “to the imposition of 48 months versus the joint
recommendation of the parties.” The entire proceeding lasted approximately six
minutes. The same day, the district court issued a one-page order in which it
memorialized its finding that Dunkley violated the terms of his supervised release
and its 48-month sentence. Dunkley timely appealed.
On appeal, Dunkley makes three arguments. First, he argues that his
sentence was procedurally unreasonable because the district court did not calculate
his guideline range, consider the sentencing factors under 18 U.S.C. § 3553(a), or
explain its chosen sentence. Second, Dunkley argues that his sentence is
substantively unreasonable because the district court did not afford consideration
to relevant § 3553(a) factors. And third, Dunkley argues that Dunkley’s waiver of 5 Case: 19-10900 Date Filed: 04/28/2020 Page: 6 of 16
his right to a revocation hearing did not “comport with principles of fundamental
fairness.”
II.
We generally review the reasonableness of a sentence for an abuse of
discretion, United States v. Dougherty, 754 F.3d 1353, 1358 (11th Cir. 2014).
However, when a defendant objects to the reasonableness of a sentence for the first
time on appeal, we review for plain error. United States v. Vandergrift, 754 F.3d
1303, 1307 (11th Cir. 2014). Due process claims raised for the first time on appeal
are likewise reviewed for plain error. United States v. Cosgrove, 73 F.3d 297, 303
(11th Cir. 1996). Plain error review requires a showing that “(1) that the district
court erred; (2) that the error was plain; and (3) that the error affected [the
defendant’s] substantial rights.” Vandergrift, 754 F.3d at 1307 (alteration adopted
and quotation marks omitted).
III.
The Supreme Court has held that a sentencing court commits “significant
procedural error” when it fails to calculate the Sentencing Guidelines range, fails to
consider the § 3553(a) factors, or fails to adequately explain its sentence. Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). A single one of these
errors is sufficient to render a sentence procedurally unreasonable. See, e.g.,
United States v. Campbell, 473 F.3d 1345, 1348–49 (11th Cir. 2007) (holding that
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failure to calculate guideline range rendered sentence procedurally unreasonable).
Dunkley correctly observes that the district court violated all three procedural
requirements. However, Dunkley is not entitled to relief because he did not
demonstrate that the district court’s erroneous sentence proceeding affected his
substantial rights.
A. Failure to Consider Dunkley’s Sentencing Range
Although the Sentencing Guidelines are discretionary in nature, the court
“must consult those Guidelines and take them into account when sentencing.”
United States v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738, 767 (2005). The
consultation requirement, “at a minimum, obliges the district court to
calculate correctly the sentencing range prescribed by the Guidelines.” United
States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). After satisfying this
requirement, the district court may impose a more severe or more lenient sentence,
“but the requirement of consultation itself is inescapable.” Id. at 1179; see also
United States v. White, 416 F.3d 1313, 1318 (11th Cir. 2005) (per curiam)
(holding that a sentencing court “must consider . . . the sentencing range”
(quotation marks omitted)).
In Campbell, this court held that a district court can satisfy the consultation
requirement by providing “some indication” on the record that it was aware of and
considered the Guidelines. 473 F.3d at 1349 (quotation marks omitted). However,
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because the district court “never explicitly mentioned [the defendant’s] advisory
Guidelines range during the revocation hearing,” and indeed, “never said the word
‘Guidelines’ during the entire hearing,” we held that the defendant’s sentence was
procedurally unreasonable. Id. Here, as in Campbell, there is nothing in the record
to suggest that the district court calculated or consulted Dunkley’s guideline range.
And in fact, just as in Campbell, at no point during Dunkley’s six-minute sentence
proceeding did the district court utter the word “Guidelines.”
The government suggests the district court nevertheless gave “some
indication” that it considered Dunkley’s guideline range by stating that it reviewed
“the probation report in this matter.” The R&R contained a calculation of
Dunkley’s guideline range, which means, according to the government, that the
court discharged its consultation requirement. However, the government’s
argument is foreclosed by Campbell. In Campbell, this court held that a sentence
was procedurally unreasonable—even though both parties mentioned the
defendant’s guideline range—because “the district court itself never made any on-
the-record conclusion regarding the Guidelines or the applicable sentencing
range.” Id. at 1349 n.2. Because the district court therefore failed to satisfy the
consultation requirement as required under Campbell, Dunkley’s sentence was
procedurally unreasonable.
B. Failure to Consider Sentencing Factors Under § 3553(a)
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In determining whether to revoke a term of supervised release and impose a
sentence, the district court must consider certain of the sentencing factors set forth
in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e)(3) (requiring sentencing courts to
consider §§ 3553(a)(1), (2)(B)–(D), & (4)–(7)). A district court is not required to
reference or discuss each factor explicitly. See United States v. Talley, 431 F.3d
784, 786 (11th Cir. 2005) (per curiam), abrogated on other grounds by Rita v.
United States, 551 U.S. 338, 127 S. Ct. 2456 (2007). However, “[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.” Rita, 551 U.S. at 356, 127 S. Ct. at 2468. This court
has deemed this requirement satisfied when the district court considers sentencing
objections and motions that elicit facts and argument related to the § 3553(a)
factors. See, e.g., United States v. Dorman, 488 F.3d 936, 944–45 (11th Cir.
2007).
As an initial matter, the district court could not have discharged this duty
merely by considering the arguments made by the parties in Dunkley’s abbreviated
hearing. That is because, as the government concedes, the parties’ arguments did
not focus on the § 3553(a) factors. Nor could the district court have discharged its
duty merely by considering “the probation report in this matter,” because the
record is unclear as to which document the district court reviewed. “The probation
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report” could have referred to: (1) the presentence investigation report (“PSR”)
prepared by the probation office for Dunkley’s 2007 sentencing; (2) the probation
office’s October 30, 2018 petition for revocation of Dunkley’s supervised release;
or (3) the R&R. Of these documents, only the PSR provided any meaningful
discussion of Dunkley’s “history and characteristics.” See 18 U.S.C. § 3553(a)(1).
Because we are therefore unable to determine from the record whether the district
court adequately considered the relevant § 3553(a) factors, Dunkley’s sentence is
procedurally unreasonable for a second reason.
C. Failure to Explain Dunkley’s Sentence
As set out above, the Supreme Court has held that a district court’s failure to
“adequately explain the chosen sentence” constitutes a “significant procedural
error.” Gall, 552 U.S. at 51, 128 S. Ct. at 597. That is because a district court’s
failure to provide any “reasoned basis for exercising [its] legal decisionmaking
authority,” Rita, 551 U.S at 356, 127 S. Ct. at 2468, prevents “meaningful
appellate review” and affects “the perception of fair sentencing,” Gall, 552 U.S. at
50, 128 S. Ct. at 597. Here, the district court announced Dunkley’s sentence
without giving any explanation for its decision. Dunkley’s sentence is thus
procedurally unreasonable for this third reason as well.
D. Plain Error
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Because Dunkley challenges his objection on procedural reasonableness
grounds for the first time on appeal, we must review it for plain error. Vandergrift,
754 F.3d at 1307.1 Dunkley has satisfied the first two elements of the plain error
standard, as the district court erred by imposing a procedurally unreasonable
sentence, and that error was plain. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.
However, Dunkley cannot satisfy the third prong of the plain error analysis, which
requires him to show that the court’s error “affected his substantial rights.”
Vandergrift, 754 F.3d at 1307 (alteration adopted and quotation marks omitted). In
the context of sentencing error, a defendant shows an error violated his substantial
rights by demonstrating that, but for the error, “the court would have imposed a
lower sentence.” United States v. Arias-Izquierdo, 449 F.3d 1168, 1190 (11th Cir.
2006); United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (explaining
that the defendant bears the burden of persuasion to show an effect on substantial
rights).
Dunkley has not pointed to anything in the record suggesting that the district
court would have imposed a lesser sentence in the absence of its procedural errors.
He argues only that if the District Court had considered the § 3553(a) factors, it
would have realized that a lower sentence was warranted because Dunkley
1 Dunkley concedes that he challenges the procedural reasonableness of his sentence for the first time on appeal, and that his objection is thus subject to plain error review. See Br. of Appellant at 8. 11 Case: 19-10900 Date Filed: 04/28/2020 Page: 12 of 16
“complied with the terms of his supervision for nearly three years.” However,
Dunkley’s counsel expressly raised his compliance with his supervision when
arguing that his violation did not warrant an additional term of supervision. The
fact that the district court heard argument on Dunkley’s compliance, and
nevertheless sentenced him to 48-months imprisonment, contradicts the argument
that he would have received a lower sentence but for the district court’s procedural
errors. Because Dunkley has thus failed to satisfy his burden of showing a
violation of his substantial rights, he is not entitled to relief from the district court’s
procedural errors.
IV.
Dunkley has also failed to demonstrate that his sentence was substantively
unreasonable. “A district court abuses its considerable discretion and imposes a
substantively unreasonable sentence only 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. Rosales-Bruno, 789 F.3d 1249,
1256 (11th Cir. 2015) (quotation marks omitted). “The fact that we might have
reasonably concluded that a different sentence was appropriate is insufficient to
justify reversal.” United States v. Hayes, 762 F.3d 1300, 1307 (11th Cir. 2014)
(alterations adopted and quotation marks omitted). In conducting a review for
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substantive reasonableness, we examine the “totality of the circumstances.” Id.
(quotation marks omitted). And while we do not “automatically presume a
sentence within the guidelines range is reasonable, we ordinarily expect a sentence
within the Guidelines range to be reasonable.” United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2008) (alteration adopted and quotation marks omitted).
Dunkley admitted to strangling his fiancée while on supervised release. And
even if Dunkley had not committed any violations of his supervised release in the
preceding three years, he nevertheless had an extensive criminal history, as
outlined in his original PSR. Dunkley’s 48-month prison sentence, with no
supervised release to follow, was at the lower end of his guideline range of 46- to
57-months imprisonment with a life term of supervised release. Under the
circumstances, we cannot say this sentence “lies outside the range of reasonable
sentences dictated by the facts of the case.” United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008) (quotation marks omitted). 2
V.
2 Dunkley’s sole basis for arguing his sentence was substantively unreasonable is that the district court “failed to consider or discuss any section 3553(a) factors.” Br. of Appellant at 23. However, whether the district court consulted the § 3553(a) sentencing factors is an argument about procedural rather than substantive reasonableness. See Gall, 552 U.S. at 51, 128 S. Ct. at 597. And as explained supra in Part III.D, Dunkley cannot carry his burden to show that the district court’s procedural error harmed his substantial rights, as required under plain error review.
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Finally, Dunkley argues that his waiver of his right to a revocation hearing
did not comport with principles of fundamental fairness. He contends the district
court was required to inform him of his right to a hearing, and more specifically,
his right to examine witnesses or to present mitigation information at that hearing,
as permitted under Federal Rule of Criminal Procedure 32.1. According to
Dunkley, “[w]aiving rights to which a defendant did not know he is entitled cannot
comport with fundamental principles of fairness and due process.” Br. of
Appellant at 25.
Defendants in revocation proceedings are entitled to certain minimal due
process requirements, which are incorporated in Rule 32.1. United States v.
Frazier, 26 F.3d 110, 114 (11th Cir. 1994). Relevant here, Rule 32.1 gives
defendants the right to a revocation hearing wherein the defendant may (1) present
evidence and question adverse witnesses, and (2) make a statement and present
information in mitigation. Fed. R. Crim. P. 32.1(b)(2)(C), (E). However, a
defendant may choose to waive the right to a revocation hearing. Fed. R. Crim. P.
32.1(c)(2), (A) (“A hearing is not required if . . . the person waives the hearing.”).
We have held that Federal Rule of Criminal Procedure 11—which requires district
courts to advise defendants concerning the waiver of certain trial rights before
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accepting a plea—does not apply in the context of revocation proceedings. See
United States v. Johns, 625 F.2d 1175, 1176 (5th Cir. 1980). 3
As an initial matter, the district court did give Dunkley an opportunity to
make a statement and present information in mitigation to the court, which
Dunkley declined after consulting with his counsel. The court also expressly asked
Dunkley whether he understood he “did have a right to have a hearing,” and that he
was “giving that [right] up,” which Dunkley confirmed. And while the district
court did not specifically advise Dunkley of his right to examine witnesses during a
revocation hearing, we do not consider this to be a violation of Dunkley’s due
process rights for two reasons. First, nothing in this Court’s precedent requires a
district court to enumerate every Rule 32.1 right before accepting a waiver of a
revocation hearing. In fact, our refusal to apply Rule 11 to revocation hearings
suggests the opposite. See Johns, 625 F.2d at 1176. Second, Dunkley was
apparently aware of his right to question witnesses, as evidenced by his counsel’s
statement that Dunkley “would [] want to have the benefit of [] interview[ing]” any
additional witnesses in a “full-blown [revocation] hearing.” Ultimately, neither
our precedent nor the record support Dunkley’s contention that his waiver of his
Rule 32.1 rights failed to comport with principles of due process.
3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1207. 15 Case: 19-10900 Date Filed: 04/28/2020 Page: 16 of 16
VI.
We therefore AFFIRM the district court’s revocation of Dunkley’s
supervised release and resulting sentence.