            Case: 19-12517      Date Filed: 04/14/2020   Page: 1 of 22



                                                             [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 19-12517
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 3:14-cr-00107-RV-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                       versus

LARRY DRESEAN BRYANT,
a.k.a. Larry Dreshan Bryant,
a.k.a. Larry Dre’Sean Bryant,

                                                             Defendant-Appellant.

                        ________________________

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

                                 (April 14, 2020)

Before MARTIN, FAY and HULL, Circuit Judges.

PER CURIAM:
              Case: 19-12517     Date Filed: 04/14/2020    Page: 2 of 22



      Larry Bryant appeals the district court’s revocation of his supervised release

and its imposition of a 24-month term of imprisonment. On appeal, Bryant

challenges: (1) the district court’s finding that Bryant violated a condition of his

supervised release by committing a state crime; and (2) the procedural

reasonableness of his sentence. After review, we affirm.

                                I. BACKGROUND

A.    2015 Federal Conviction and Sentence

      After a guilty plea, Bryant was convicted of making false statements in the

attempted acquisition of a firearm. The district court sentenced Bryant to 33

months’ imprisonment and 3 years of supervised release.

      The facts of Bryant’s federal firearm offense involved Bryant’s attempt to

buy a 12 gauge shotgun at a pawn shop in Pensacola, Florida. In doing so, Bryant

lied on an ATF form by stating that he had never been convicted of a felony for

which the judge could have imposed a prison sentence of more than one year and

that he had never been a fugitive from justice. In fact, in 1999, when Bryant was

18 years old, he was convicted in Washington state of second-degree attempted

murder, for which he had received a 175.5-month prison sentence. After being

released from Washington state custody and placed on probation, Bryant

absconded. On February 25, 2014, Bryant’s Washington state probation officer




                                           2
              Case: 19-12517     Date Filed: 04/14/2020   Page: 3 of 22



sought a bench warrant for Bryant’s arrest. That arrest warrant was still

outstanding when Bryant committed the federal firearm offense in Pensacola.

      After being release from prison again, Bryant began his three-year

supervised released term on May 19, 2017. As mandatory conditions of his

supervised release, Bryant was prohibited from committing another federal, state,

or local crime, from unlawfully using controlled substances, and from possessing a

firearm, destructive device, or any other dangerous weapon. In addition, Bryant

was required to submit to periodic drug tests and was prohibited from associating

with convicted felons.

B.    Petition for Revocation of Supervised Release

      On August 3, 2018, Bryant’s federal probation officer petitioned the district

court for Bryant’s arrest and to revoke his supervised release. The petition alleged

that Bryant had violated the conditions of supervised release by: (1) testing

positive for marijuana in May 2018; (2) committing a state crime on July 31, 2018,

in connection with the stabbing of Damien Pressley and the robbery of Pressley

and Michaela Young, for which Bryant was charged in Florida court with

(attempted) murder not premeditated during specific felony and robbery with a

firearm or other deadly weapon; and (3) also on July 31, 2018, associating with a

convicted felon, Gabriel Discepolo, who drove Bryant from the scene of the

charged state crimes.


                                          3
              Case: 19-12517    Date Filed: 04/14/2020    Page: 4 of 22



C.    Revocation Hearing

      After Bryant was taken into federal custody, the district court held a

revocation hearing on June 18, 2019. Bryant did not contest Violations 1 and 3.

As to Violation 2, Bryant pointed out that the state charges had been dismissed.

Bryant did not dispute that he had an “altercation” with Pressley (who was

stabbed) and Young but contended that Pressley was the attacker and that Bryant

merely acted in self-defense in stabbing Pressley and did not commit a state crime.

      To prove Violation 2, the government presented testimony from Micky

Caudell, a deputy in the robbery/homicide unit of the Escambia County Sheriff’s

Office, and Damien Pressley, the stabbing victim. According to Deputy Caudell,

on July 31, 2018, another deputy responded to a call at a convenience store, where

he met Young and Pressley. Pressley had multiple stab wounds, including to his

neck, and was taken to the hospital. Young told the deputy that defendant Bryant

had stabbed Pressley at her sister’s home.

      Deputy Caudell investigated and confirmed there was a crime scene at the

home. Deputy Caudell obtained a search warrant for the home, which was a

trailer, and found the living room was in disarray, with blood on several items of

clothing, couch cushions, the floor, and the walls. Deputy Caudell did not find a

weapon, but he did find a meat tenderizer on the floor.




                                         4
              Case: 19-12517     Date Filed: 04/14/2020   Page: 5 of 22



      Deputy Caudell interviewed Young, who said that Bryant had recently

separated from his wife and was staying at her sister’s trailer. Young told Deputy

Caudell that Bryant had contacted her to meet him at the trailer so he could collect

his clothing. When Young and her boyfriend Pressley arrived, Bryant was already

inside the trailer collecting his items. Young and Pressley walked inside, and

Pressley sat on the couch while Bryant entered and exited several times carrying

clothing out of the trailer. On his final exit, Bryant stopped and began hitting

Pressley and then pulled out a knife and stabbed Pressley several times. Young

maintained that no words were exchanged between Pressley and Bryant and that

she did not know why Bryant attacked Pressley. Young grabbed a meat tenderizer

from the kitchen and hit Bryant with it several times in an effort to stop him.

Young also tried to call 9-1-1 with her cell phone, but Bryant took the phone from

her and fled the scene. Bryant left in a white Chrysler 300 with a white, male

passenger. Young then drove Pressley to the nearest store to call the police.

      Several hours later, another deputy conducted a traffic stop of a white

Chrysler 300. Gabriel Discepolo, a white male with an outstanding warrant, was

driving the car, and Bryant was a passenger. Both men were detained, and Deputy

Caudell interviewed them. After being advised of his Miranda rights, Bryant

admitted to Deputy Caudell that he was at the trailer earlier in the day, before dark,

to retrieve his clothing, but had left before any incident and was with his wife for


                                          5
              Case: 19-12517      Date Filed: 04/14/2020     Page: 6 of 22



the rest of the night. Discepolo, on the other hand, told Deputy Caudell that he and

Bryant went to the trailer at night, that he sat in the car while Bryant retrieved his

clothes, and that, when Bryant returned, he appeared nervous and told Discepolo

that Pressley “had tried to put hands on his girl.”

      The next morning, Deputy Caudell met with Bryant’s wife at the hotel where

she and Bryant had been staying. After obtaining permission to search the hotel

room, Deputy Caudell found a bag containing a knife and bloodstained clothing.

He also found Young’s cell phone in Bryant’s hotel room. Deputy Caudell seized

defendant Bryant’s cell phone and, after obtaining a search warrant, retrieved

historical location data from the cell phone that indicated Bryant was at the trailer

at the time the stabbing occurred, which was inconsistent with Bryant’s statement

that he was at the trailer before dark.

      On cross-examination, Deputy Caudell acknowledged that Young made

several false statements during his investigation. For instance, when Young first

reported the attack on Pressley, she provided a false name because there was an

active arrest warrant for her. In addition, although Young claimed the trailer was

owned by her sister, it was actually owned by Leila Sanchez, who was not Young’s

sister and was in jail at the time of the attack. Finally, Young told Deputy Caudell

that Bryant had taken Pressley’s wallet and cell phone, but those items were later

found either in Young or Pressley’s car or in the trailer.


                                           6
              Case: 19-12517     Date Filed: 04/14/2020   Page: 7 of 22



      Pressley testified that on July 31, 2018, he took his girlfriend Young to the

trailer, where they let Bryant in to get his clothes, which he did. Pressley

explained that the owner of the trailer was Young’s best friend, but that they called

each other sisters. Pressley did not want to go to the trailer, but Young said that

Bryant was threatening to kick down the door if they did not let him in. After

Pressley and Young arrived, Pressley sat down and started to play with his phone.

Pressley admitted that he was aggravated and that he and Young were arguing

because he wanted Bryant to hurry up so he could go home and go to sleep.

However, Pressley denied touching Young. Bryant exited the trailer with some of

his things and took them to the car. When Bryant re-entered the trailer, he attacked

Pressley, cutting him on his neck. Pressley did not know why Bryant attacked him

and did not fight back. Pressley remembered Young screaming and then he

blacked out and woke up in the hospital.

      On cross-examination, Pressley admitted that about a month after the

stabbing, he was arrested as a result of a domestic violence incident involving

Young and was convicted of battery.

      Bryant’s probation officer also testified and confirmed that: (1) in May

2018, Bryant tested positive for use of marijuana; (2) that Bryant was arrested in

connection with the stabbing and charged with attempted murder and robbery with

a firearm; and (3) that Discepolo, who was driving Bryant in the white Chrysler


                                           7
              Case: 19-12517       Date Filed: 04/14/2020   Page: 8 of 22



300, was a convicted felon with whom Bryant did not have permission to have

contact.

      As for the stabbing incident, the probation officer said that Bryant called him

on July 24, 2018 to tell him that Bryant and his wife were splitting up and Bryant

would try to get a hotel room for the night. The next day, Bryant called again and

said that he would be living at the trailer with a woman he had met after breaking

up with his wife. On the morning of July 31, 2018, the probation officer tried to

perform a home visit at the trailer, but Bryant was at work. The probation officer

went to Bryant’s work to speak with him. Bryant explained to the probation

officer that the woman, whom Bryant did not identify, knew he needed a place to

stay and had offered him a room, but Bryant also indicated he was in a romantic

relationship with the woman. Although Bryant did not name the woman, the

probation officer later concluded Bryant was referring to Young, not to the

registered owner of the trailer.

      Bryant testified in his own behalf about the July 31, 2018 stabbing.

According to Bryant, after a July 24, 2018 argument with his wife, he moved out

of their home and slept in his car. The next night, Bryant met Young, who invited

him to stay at her sister’s trailer until her sister got out of jail. After Bryant moved

into the trailer, Young, who did not have a car, began texting him for rides and told

Bryant she prostituted herself for money to buy crack cocaine. Bryant decided he


                                            8
              Case: 19-12517      Date Filed: 04/14/2020    Page: 9 of 22



needed to leave the trailer. On July 30, Bryant and his wife reconciled and stayed

in a hotel room, after which he texted and called Young to let her know he needed

access to the trailer to get his belongings.

       Because Young did not have a key to the trailer, she and Bryant had been

entering the trailer by “popping” the door open. Bryant did not attempt to get his

belongings without Young because she had told him not to go to the trailer without

her.

       Bryant and Discepolo drove to the trailer, where they met Young and

Pressley, whom Bryant did not know. Bryant followed Young and Pressley into

the trailer, grabbed his belongings, and took them to the car, where Discepolo was

waiting. Bryant testified that as he returned for a load of dirty clothes in the

laundry room, he saw Pressley grab Young by the throat, throw her up against a

wall, and say, “Bitch, you trying to play me?” Bryant said he dropped the clothes

and shoved Pressley off of Young, at which point the two men began fighting.

Bryant heard Young say, “Get off of him,” and Bryant was hit in the back. Bryant

turned around, saw Young, and thought she had a hammer. Believing both

Pressley and Young were attacking him, Bryant shifted to face them both, pulled

out his knife, and stabbed Pressley. Bryant testified that he felt he had no other

option but to use his knife and that his objective was to get out of the trailer.




                                           9
             Case: 19-12517     Date Filed: 04/14/2020    Page: 10 of 22



      When Young took out her phone and said she was going to call the police,

Bryant took her phone, grabbed his clothing from the floor, and ran out of the

trailer and to his car. However, Pressley’s car was blocking Bryant’s car in the

driveway. According to Bryant, Young came out of the trailer, moved Pressley’s

car, thanked Bryant, and told him, “Get out of here.”

      Bryant tried to drive away but was driving too erratically, so Discepolo took

over and drove Bryant back to the hotel where his wife was waiting. As they

drove, Discepolo asked Bryant what had happened, and Bryant told him, “He tried

to put hands on his girl.” At the hotel, Bryant showered, put the clothes he had

been wearing in a bag by the wall, and left with Discepolo. Discepolo took Bryant

to an associate’s house, where they “smoked spice” so Bryant could “get [his]

mind right.” Bryant said he did not tell his wife what had happened because he did

not want to involve her.

      Bryant admitted that he lied in his post-arrest interview about being at the

trailer that night, explaining that he was scared about what could happen. Bryant

explained that he thought he “was probably going to be sitting in a cell for the rest

of [his] life” because he had “just gotten out of prison not too long ago,” he was a




                                          10
               Case: 19-12517       Date Filed: 04/14/2020       Page: 11 of 22



convicted felon, and “something like this had already happened in [his] past” when

he stabbed a woman in Washington. 1

       After Bryant finished testifying, the defense introduced exhibits showing the

criminal histories of Pressley and Young. Among other convictions, Pressley had

five battery convictions and a conviction for aggravated assault with a deadly

weapon. Young had, among others, two convictions for passing counterfeit money

and two convictions for providing false names to law enforcement, one of which

stemmed from the July 31, 2018 incident.

D.     District Court’s Revocation of Supervised Release and Sentence

       After hearing the parties’ arguments, the district court found by a

preponderance of the evidence that Bryant had committed all three violations

alleged in the probation officer’s petition. As to Violation 2 in particular, the

district court found that “the credibility determinations have to go against Mr.

Bryant in this case” because “[a]ll the evidence, considered in totality, weighs

against his version that he’s put out here today.” The district court observed that it

was “pretty clear that [Bryant] stabbed Mr. Pressley numerous times and with the

possibility that it would have been fatal for Mr. Pressley, considering the nature of

the wounds and the number of wounds and where they were located.” The district


       1
        According to Bryant’s Presentence Investigation Report, his 1999 attempted murder
conviction arose from an incident in which Bryant stabbed multiple times, including in the neck,
a woman he had recently begun living with.
                                               11
             Case: 19-12517     Date Filed: 04/14/2020    Page: 12 of 22



court also found that Bryant did not act in self-defense and that the stabbing was an

act of aggression.

      The district court determined that Violation 2 was a Grade A violation,

which, with a criminal history category of III, yielded an imprisonment range of 18

to 24 months for all three violations. The district court noted that Bryant’s

maximum prison term was 24 months.

      In mitigation, Bryant argued, among other things, that Bryant had used

deadly force only to defend himself in a life-threatening situation, and that the

district court should draw an inference that Young was unreliable from the fact that

she did not testify at the hearing. Bryant also pointed out that he had been on

supervised release for over a year before reoffending, which he said showed he

was not dangerous. Stressing that he had been in state custody for eight months

and then federal custody up to the point of the revocation hearing, Bryant asked for

time served with no supervision to follow.

      Bryant addressed the district court personally and said that he “underst[ood]

that in 1999 it was a woman that I stabbed,” but that he had “come a long way

from where [he] was when [he] was 18 years old.” Bryant noted that his wife of

two years did not think he was dangerous, and that he was willing to work with his

probation officer and seek counseling.




                                          12
             Case: 19-12517      Date Filed: 04/14/2020   Page: 13 of 22



      The government argued that Bryant’s claim of self-defense was inconsistent

with his actions of getting rid of the knife and lying to the police and that Bryant

was dangerous.

      The district court revoked Bryant’s supervised release and sentenced Bryant

to 24 months in prison, followed by 12 months of supervised release. The district

court imposed two new special conditions of supervised release: (1) that he not

possess a knife of any kind; and (2) that he attend an anger management course

approved by his probation officer. The district court also stated that Bryant should

receive credit for his time in state custody. In choosing the sentence, the district

court stated that it had considered “all the sentencing factors in Section 3553(a) of

Title 18,” the advisory nature of the sentencing guidelines, the Sentencing

Commission’s policy statements, and this Court’s caselaw.

      In explaining the chosen sentence, the district court stated that this was a

“complex case” that involved “some unsavory people,” and that it understood

“why some witnesses are not testifying” and “why some things happened.”

However, the district court also observed that Bryant “has some demons that he

has to deal with every day, and I think he’s been able to overcome those; but at the

same time, they still lurk there, and he needs some help in trying to deal with

those.” The district court stressed that it had found that Bryant had not acted in

self-defense, but as an act of aggression, “which fortunately was not fatal but could


                                          13
               Case: 19-12517       Date Filed: 04/14/2020       Page: 14 of 22



have been and is a very serious offense.” The district court also stated that it had

considered all of the evidence presented at the hearing and that it was “aware of

Mr. Bryant’s prior history because [it] sentenced him some years ago.”

       Bryant did not object to the sentence.

                                     II. DISCUSSION

A.     Revocation of Supervised Release

       A district court may revoke a defendant’s term of supervised release and

impose a term of imprisonment if the district court finds by a preponderance of the

evidence that the defendant violated a condition of supervised release. 18 U.S.C.

§ 3583(e)(3). We review for abuse of discretion a district court’s revocation of

supervised release. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.

2014). We review the district court’s fact findings at the revocation hearing for

clear error. United States v. Reese, 775 F.3d 1327, 1328-29 (11th Cir. 2015). We

ordinarily will not review the district court’s credibility determination made in a

revocation proceeding. United States v. Copeland, 20 F.3d 412, 413 (11th Cir.

1994).

       Here, the district court did not abuse its discretion by revoking Bryant’s

supervised release based on a finding that he committed all three violations. 2 At


       2
        Bryant does not dispute Violations 1 and 3, which are Grade C violations. See U.S.S.G.
§ 7B1.1(a)(3) (providing “any other violation” that is not a crime is a Grade C violation). With
only Grade C violations, Bryant’s revocation would have been permissive, rather than
                                               14
               Case: 19-12517       Date Filed: 04/14/2020       Page: 15 of 22



the outset, the district court did not clearly err in finding that Bryant committed a

state crime in stabbing Pressley multiple times. The district court found that

Pressley’s version of events about the stabbing was more credible than Bryant’s

version and Bryant has not shown Pressley’s account of what happened is facially

unbelievable or impossible. See United States v. Shabazz, 887 F.3d 1204, 1215

(11th Cir. 2018) (explaining that this Court accepts “evidence credited by the

district court unless it is contrary to the laws of nature, or is so inconsistent or

improbable on its face that no reasonable factfinder could accept it” (quotation

marks omitted)).

       According to Pressley’s testimony, which was corroborated by Young’s

statement to Deputy Caudell, Bryant stabbed Pressley multiple times without

provocation. Further, it is undisputed that Bryant stole Young’s cell phone as he

fled the scene, that he initially lied about the knife and his presence at the trailer,

and that he actually hid the knife and his bloody clothes. The totality of the

evidence is sufficient to support the district court’s finding by a preponderance of

the evidence that Bryant’s stabbing of Pressley was an act of aggression rather than

self-defense and constituted a state crime. At a minimum, Bryant’s conduct, as



mandatory, and Bryant’s advisory guidelines range would have been 5 to 11 months’
imprisonment, rather than 18 to 24 months. See id. §§ 7B1.3(a), 7B1.4(a). For this reason, we
must address the merits of Bryant’s argument as to Violation 2 because it is a Grade A violation
which, with a criminal history category III, yielded an advisory guidelines range of 18 to 24
months for all three violations.
                                               15
                Case: 19-12517       Date Filed: 04/14/2020       Page: 16 of 22



found by the district court, constituted aggravated battery with a deadly weapon, in

violation of Florida Statutes § 784.045(1)(a)(2), which is a second-degree felony

punishable by a prison term of up to 15 years. See Fla. Stat. §§ 775.082(3)(d),

784.045(2). 3

       Although Bryant testified that he stabbed Pressley in self-defense only after

he realized both Pressley and Young were attacking him, the district court found

this testimony not credible, and this Court defers to the district court’s credibility

determinations. See Copeland, 20 F.3d at 413; see also United States v.

Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005) (explaining that a court’s fact-

finding based on a credibility determination “will almost never be clear error”).

Moreover, a reasonable factfinder could find that Bryant’s self-defense claim was

not credible based solely on Bryant’s own version of events, including:

(1) Bryant’s claim that Young helped Pressley attack him by hitting him with a

hammer, but then thanked him and helped him flee by moving Pressley’s car;

(2) his fleeing the scene with the knife and Young’s cell phone; (3) his leaving his

bloody clothes, the knife, and Young’s cell phone at his hotel room; and (4) his

lying to police after he was arrested.




       3
         The State of Florida charged Bryant with attempted murder not premeditated during a
specific felony, in violation of Florida Statutes § 782.04(3), and robbery with a firearm or other
deadly weapon, in violation of Florida Statutes § 812.13(2)(a), but apparently later dismissed the
charges.
                                                16
               Case: 19-12517       Date Filed: 04/14/2020      Page: 17 of 22



       Bryant argues that we should not defer to the district court’s credibility

findings here because they were based on a finding that Bryant “had a propensity

for random motiveless knife attacks.” This argument fails for two reasons. First,

to the extent Bryant is relying on Federal Rule of Evidence 404(b)(1), the Federal

Rules of Evidence do not apply in revocation proceedings. United States v.

Frazier, 26 F.3d 110, 114 (11th Cir. 1994); see Fed. R. Crim. P. 32.1(b)(2).

Moreover, one of the factors a district court must consider before deciding whether

to revoke a supervised release term and impose a prison term is “the history and

characteristics of the defendant,” as reflected in 18 U.S.C. § 3553(a)(1). See 18

U.S.C. § 3583(e)(3).

       Second, and in any event, the record belies Bryant’s claim that the district

court made any sort of propensity finding. In finding Bryant not credible, the

district court considered “[a]ll the evidence, considered in totality,” and concluded

it “weigh[ed] against” Bryant’s version of events. In discrediting Bryant, the

district court did not refer to, directly or indirectly, Bryant’s past crimes, much less

any prior knife attack. Indeed, during the revocation hearing, the district court

(unlike Bryant himself) never mentioned Bryant’s prior attempted murder

conviction in Washington state. 4


       4
        To be sure, the district court imposed a special condition of supervised release that
prohibits Bryant from possessing any kind of knife during his next supervised release term. But
that condition appears to have been motivated by Bryant’s testimony at the revocation hearing
                                              17
               Case: 19-12517        Date Filed: 04/14/2020        Page: 18 of 22



       To support his argument, Bryant points to the district court’s statement that

it had “considered all of the evidence [it had] heard” and that it was “aware of Mr.

Bryant’s prior criminal history” from the original sentencing. But the district court

made that statement later, when it was explaining its reasons for choosing a 24-

month sentence, not when it was explaining its reason for discrediting Bryant.

And, as we have already explained, the district court was required to consider

Bryant’s history, including his criminal history, in determining what sentence to

impose upon revocation of supervised release. See 18 U.S.C. §§ 3583(e),

3553(a)(1).

       In sum, Bryant has given us no cause to disturb the district court’s credibility

determinations or its weighing of the evidence with respect to Violation 2. See

United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003) (explaining, in the

sentencing context, that “we allot substantial deference” to the factfinder’s

credibility determinations and “[w]here there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous”

(internal quotation marks omitted)). The district court did not abuse its discretion

by revoking Bryant’s supervised release based on a finding that he committed all

three alleged violations.



that he did not know that the condition of his supervised release prohibiting him from possessing
“other dangerous weapon[s]” meant that he could not carry a knife. To the extent Bryant was
ever really unclear about the scope of that condition, the district court has now made it explicit.
                                                18
               Case: 19-12517        Date Filed: 04/14/2020       Page: 19 of 22



B.     Procedural Reasonableness of the Sentence

       Before imposing a prison term upon revocation, the district court must

consider certain factors in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e).5 The

district court also must consider the policy statements in Chapter 7 of the

Sentencing Guidelines, which provide recommended, non-binding ranges of

imprisonment. See United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).

       We review a sentence imposed upon revocation for reasonableness.

Vandergrift, 754 F.3d at 1307. Our reasonableness review applies the deferential

abuse of discretion standard. United States v. Trailer, 827 F.3d 933, 935 (11th Cir.

2016). We first examine whether the district court committed any significant

procedural error and then whether the sentence is substantively unreasonable in

light of the totality of the circumstances and the relevant § 3553(a) factors. United

States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). When a defendant did not

raise the procedural error at the time of sentencing, our review is for plain error.

Vandergrift, 754 F.3d at 1307.




       5
          Specifically, in a revocation proceeding, the relevant factors the district court must
consider are: (1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence imposed to afford adequate deterrence, protect the
public, and provide the defendant with needed educational and vocational training and medical
care; (3) the Sentencing Guidelines range and pertinent policy statements of the Sentencing
Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide
restitution. See 18 U.S.C. § 3583(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),
(a)(4)-(7)).
                                                19
                Case: 19-12517        Date Filed: 04/14/2020       Page: 20 of 22



       Bryant makes only one argument as to why his sentence is unreasonable.

Bryant contends that the district court relied on an impermissible factor to

determine his sentence, specifically the concerns in § 3553(a)(2)(A), which include

the need for the sentence to reflect the seriousness of the offense, promote respect

for the law, and provide just punishment. Bryant points out that § 3553(a)(2)(A) is

not listed in 18 U.S.C. § 3583(e) as one of the sentencing factors the courts must

consider before revoking supervised release and imposing a prison term.

       A court’s consideration of an improper factor is procedural error.

Vandergrift, 754 F.3d at 1308.6 Because Bryant did not raise any objection to this

alleged error when the district court imposed his sentence, our review is for plain

error only. See id.

       The text of § 3583(e) does not include § 3553(a)(2)(A) among the factors

district courts must consider, but it also does not “explicitly forbid a district court

from considering § 3553(a)(2)(A).” Vandergrift, 754 F.3d at 1308. In Vandergrift,

the defendant, like Bryant, failed to raise this alleged procedural error at his

revocation sentencing and had to demonstrate plain error. See id. at 1307. The

Vandergrift Court held that because neither the Supreme Court nor this Court has


       6
         Although Bryant’s counseled brief states in passing that his sentence is substantively
unreasonable, it does not make any argument as to the substantive reasonableness of his
sentence. Nonetheless, in light of the totality of the circumstances, and given the district court’s
credibility findings (that Bryant stabbed Pressley multiple times and that Bryant’s stabbing was
an act of aggression and not in self-defense), we have little trouble concluding that his 24-month
sentence, at the top of the advisory guidelines range, is substantively reasonable.
                                                 20
              Case: 19-12517      Date Filed: 04/14/2020    Page: 21 of 22



addressed whether consideration of § 3553(a)(2)(A) in a revocation sentence is

error, and there is a circuit split on the issue, any error could not be plain. Id. at

1308-09.

      Here, Bryant has not shown plain error either. First, we are not persuaded

by Bryant’s contention that the district court’s statement—that it had considered

“all” of the § 3553(a) factors—indicates that it relied on the need to “punish”

Bryant for his new state crime in choosing a 24-month sentence. Nothing in the

revocation record suggests the district court was focused on the need to punish

Bryant for stabbing Pressley rather than the need to sanction Bryant for his breach

of trust while on supervised release. See U.S.S.G. Ch. 7, Pt. A, intro. cmt. n.3(b)

(explaining that the court’s goal is to sanction “the defendant’s breach of trust” not

the defendant’s new criminal conduct triggering the violation). Admittedly, the

district court stated that Bryant’s stabbing of Pressley was “a very serious offense,”

but the “nature and circumstances” of Bryant’s supervised release violation (here,

his new state crime) are permissible factors for the district court to consider. See

18 U.S.C. § 3583(e) (cross-referencing § 3553(a)(1)).

      In any event, even assuming arguendo that the district court included

§ 3553(a)(2)(A)’s concerns in its consideration of the appropriate sentence, the

district court did not commit plain error because it is still true that neither this




                                            21
               Case: 19-12517      Date Filed: 04/14/2020       Page: 22 of 22



Court nor the Supreme Court has held that consideration of § 3553(a)(2)(A) in

imposing a revocation sentence is error. See Vandergrift, 754 F.3d at 1308-09.

       Contrary to Bryant’s arguments, the Supreme Court’s recent holding in

United States v. Haymond, ___ U.S. ____, 139 S. Ct. 2369 (2019), does not

establish plain error here. In Haymond, the Supreme Court concluded that 18

U.S.C. § 3583(k), which imposed a mandatory minimum five-year sentence upon

revocation of supervised release for certain enumerated offenses, violated the Fifth

and Sixth Amendments by allowing judge-found facts to trigger a mandatory

minimum sentence. See Haymond, ___ U.S. at ___, 139 S. Ct. at 2374, 2378,

2384-85. In other words, Haymond addressed an entirely different question and

has no bearing on whether it is permissible under § 3583(e) for the district court to

consider the factors in § 3553(a)(2)(A).7

                                   III. CONCLUSION

       Bryant has not shown that the district court abused its discretion in revoking

his term of supervised release or that his 24-month revocation sentence is

procedurally unreasonable.

       AFFIRMED.



       7
         The Supreme Court in Haymond was concerned with the district court’s fact findings
that increase the mandatory minimum prison term under § 3583(k) and explicitly stated that its
holding did not extend beyond § 3583(k). See id. at ___, 139 S. Ct. at 2383-84 (noting
specifically that § 3583(e) does not contain any similar mandatory minimums triggered by judge-
found facts).
                                              22
