             Case: 17-15709    Date Filed: 07/13/2018   Page: 1 of 8


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-15709
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:13-cr-20057-MGC-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

JAHED MOVLAYAZDANPAHI,

                                                            Defendant-Appellant.

                          ________________________

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

                                 (July 13, 2018)

Before TJOFLAT, NEWSOM and HULL, Circuit Judges.

PER CURIAM:

      Jahed Movlayazdanpahi appeals his 18-month above-guidelines sentence

imposed following the second revocation of his supervised release. On appeal,
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Movlayazdanpahi argues that the district court failed to adequately consider his

mitigating circumstances and imposed a substantively unreasonable sentence.

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

                                 I. BACKGROUND

      In June 2013, Movlayazdanpahi pled guilty to one count of receiving,

concealing, and retaining a stolen tax refund check, in violation of 18 U.S.C.

§§ 641 and 2. At sentencing, Movlayazdanpahi had a guidelines range of 33 to 41

months’ imprisonment, driven largely by his criminal history category of VI.

Movlayazdanpahi had a total of 14 criminal history points based on his prior

criminal convictions, several of which involved driving without a valid license.

      The district court sentenced Movlayazdanpahi to 33 months’ imprisonment

followed by 3 years of supervised release and ordered him to pay $30,577.55 in

restitution. Among other things, the conditions of Movlayazdanpahi’s supervised

release required him: (1) not to leave the judicial district without permission of the

court or a probation officer; (2) to notify the probation officer at least 10 days in

advance of any change in residence or employment; and (3) not to commit another

federal, state, or local crime. Movlayazdanpahi completed his 33-month sentence

in August 2015 and began serving his 3-year term of supervised release.

      In September 2016, Movlayazdanpahi was arrested for violating the

conditions of his supervised release. At his revocation hearing for this first


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violation, Movlayazdanpahi admitted to three of the alleged violations: (1) failure

to pay restitution; (2) failure to notify the probation officer after being questioned

by law enforcement; and (3) failing to participate in his outpatient treatment

program. The government agreed to dismiss the remaining three violations, two of

which had to do with Movlayazdanpahi driving with a suspended license.

      Movlayazdanpahi’s revocation guidelines range was 8 to 14 months, but he

requested a downward variance to a sentence of home confinement, arguing that

his criminal history category of VI overrepresented the seriousness of his criminal

history, which largely involved traffic offenses. Movlayazdanpahi further asserted

that home confinement would allow him to continue working, paying his

restitution, and caring for his six-year-old son. The district court expressed

concern about Movlayazdanpahi’s ability to continue doing these activities when

he was not supposed to be driving with his license suspended. Movlayazdanpahi

represented that he was working with a lawyer in state court to get his license

issues resolved and that his girlfriend would be able assist him with transportation

in the meantime.

      Though the district court expressed some additional reservations about

Movlayazdanpahi’s ability to comply with the conditions of home confinement, the

district court ultimately decided to “give [Movlayazdanpahi] a chance,” sentenced

him to 6 months of home confinement, and reinstated his supervised release. The


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district court further instructed that Movlayazdanpahi was to remain employed,

work on clearing up his driving record, and begin to pay his restitution.

      In September 2017, approximately a year after his first violation, a second

warrant was issued for Movlayazdanpahi’s arrest based on additional violations of

his supervised release. Specifically, Movlayazdanpahi: (1) failed to refrain from

violating the law when, in August 2017, he was arrested in Georgia for giving a

false name, address, and birth date to a law enforcement officer and driving with a

suspended license; (2) left the judicial district without permission; (3) failed to

satisfy his restitution obligation as ordered; (4) failed to notify the probation office

of a change in residence; and (5) failed to notify the probation office of a change in

employment. Because his underlying offense was a Class C felony,

Movlayazdanpahi faced a statutory maximum revocation term of two years (24

months). 18 U.S.C. § 3583(e)(3). Based on Movlayazdanpahi’s criminal history

category of VI, his revocation guidelines range was 8 to 14 months’ imprisonment.

      At his second revocation hearing in January 2018, Movlayazdanpahi

admitted all five violations. The government and the probation office

recommended a 24-month revocation sentence. Movlayazdanpahi requested a

more lenient revocation sentence, noting that he had been incarcerated since his

August 2017 arrest in Georgia. Movlayazdanpahi further stated that, prior to his




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arrest, he had been doing very well at his new job and his employer was willing to

rehire him upon his release.

      The district court remarked that Movlayazdanpahi nevertheless had been

“doing things he knows he shouldn’t be doing,” including being outside the district

and “driving when he knows he doesn’t have a valid license.” The district court

further noted that Movlayazdanpahi had “been chastised . . . for that in the past,”

and that this was not his first supervised release violation. Movlayazdanpahi

explained that his suspended driver’s license was the root of his problems and that

the issue remained unresolved because he had trouble paying the fines he owed.

Movlayazdanpahi asserted that he had been fighting to maintain a job so he could

pay those fines and get his license back. Additionally, Movlayazdanpahi stated

that he was now in a more stable living situation and that his girlfriend had

volunteered to drive him to and from work until he resolved his license issues.

      Movlayazdanpahi personally addressed the district court, reiterating that his

issues with his license were “more monetary than anything else,” and stating that

he had had trouble paying the fines because his previous employer refused to

compensate him for all of the hours he worked. Movlayazdanpahi further asserted

that he was hardworking, wanted to be a positive influence on his children, and

wanted “to go back to work and just move forward with [his] life.”




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       The district court sentenced Movlayazdanpahi to 18 months’ imprisonment,

stating that it had reviewed “the argument of counsel as well as the materials

provided for me in the petition” for Movlayazdanpahi’s arrest.1 Movlayazdanpahi

objected to the above-guidelines sentence. He now appeals.

                                     II. DISCUSSION

       If a defendant violates the conditions of his supervised release, the district

court may, after considering certain 18 U.S.C. § 3553(a) factors, revoke the

defendant’s supervised release. 18 U.S.C. § 3583(e)(3). In imposing a revocation

sentence, the district court must consider, among other things, the nature and

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

for deterrence, and the applicable guidelines range. Id. §§ 3583(e), 3553(a)(1),

(2)(B)-(C), (4).

       We review a district court’s revocation of supervised release for an abuse of

discretion, and review the revocation sentence imposed for reasonableness. United

States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). The party challenging

the sentence bears the burden of showing its unreasonableness, and we will not

vacate a defendant’s sentence unless we are “left with the definite and firm

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

       1
        Notably, the district court did not impose any additional supervised release term
following this 18-month incarceration sentence. Thus, following his release from custody on his
revocation sentence, Movlayazdanpahi will not be subject to any further supervision in
connection with this conviction.
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the § 3553(a) factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.” United States v. Trailer,

827 F.3d 933, 936 (11th Cir. 2016) (quotation omitted). That a sentence is outside

the guidelines range does not render it presumptively unreasonable, and when the

district court varies from the guidelines range, we must “give due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justify the extent of

the variance.” Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).

Furthermore, “[t]he fact that [we] might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal.” Id.

      Here, the district court did not abuse its discretion in revoking

Movlayazdanpahi’s supervised release and imposing an 18-month revocation

sentence. As outlined above, the district court granted Movlayazdanpahi leniency

in his first revocation proceeding and varied below the guidelines range to impose

a sentence of home confinement, intended to allow Movlayazdanpahi to continue

working, pay his restitution, and get his life back on track. In his first revocation

proceeding, Movlayazdanpahi represented that he was working earnestly to resolve

his license issues and would find alternative solutions for his transportation needs

in the meantime. Nevertheless, despite these representations and despite being

given a second chance by the district court, Movlayazdanpahi violated his

supervised release again just one year later.


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      Under these particular circumstances, it was not unreasonable for the district

court, in Movlayazdanpahi’s second revocation proceeding, to reject his renewed

representations that he would seek alternative transportation and resolve his license

issues. Nor was it unreasonable for the district court to conclude that an above-

guidelines revocation sentence was necessary to deter Movlayazdanpahi from

further violations, in light of his demonstrated inability to comply with the

conditions of his supervised release and repeated history of driving with a

suspended license. See 18 U.S.C. § 3553(a)(1), (2)(B). Movlayazdanpahi

complains that the district court failed to give sufficient weight to his mitigating

circumstances, such as his stable job and home life, but the weight given to any

particular § 3553(a) factor is committed to the district court’s sound discretion, and

we see no clear error in the district court’s weighing of those factors here. See

United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

                                III. CONCLUSION

      For the foregoing reasons, we conclude that the district court did not err in

imposing an 18-month sentence on the second revocation of Movlayazdanpahi’s

supervised release. Accordingly, we affirm.

      AFFIRMED.




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