              Case: 18-13538    Date Filed: 11/16/2018   Page: 1 of 4


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-13538
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:04-cr-20245-CMA-4



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

GARY TUBBY,

                                                             Defendant-Appellant.

                          ________________________

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

                               (November 16, 2018)

Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM:

      Gary Tubby appeals the sentence imposed following the revocation of his

supervised release. 18 U.S.C. § 3583(e)(3), (h). The district court sentenced Tubby
               Case: 18-13538     Date Filed: 11/16/2018    Page: 2 of 4


to 4 months of imprisonment followed by 56 months of supervised release that

included 4 months of house arrest for availing himself of 15 lines of credit while

withholding restitution from the victims of his previous crimes of fraud. Tubby

argues that his sentence is procedurally and substantively unreasonable. We affirm.

      Tubby’s sentence is procedurally reasonable. The district court correctly

calculated that Tubby had an advisory guidelines range of 8 to 14 months of

imprisonment, a maximum sentence of 3 years of imprisonment, and could serve

up to 60 months on supervised release based on his grade C violations and his

criminal history of VI. Tubby argues that the district court failed to provide a

reasoned basis for rejecting the parties’ joint recommendation to modify his

supervised release by adding 100 months of community service, but the district

court explained that it was “starting anew” due to Tubby’s “highly unsatisfactory”

conduct. The district court stated that, after “[g]iving due consideration to all of the

factors in 18 U.S. Code, Section 3553,” it determined that “the nature of the

offenses that bring Mr. Tubby back before the Court” and his “history and

characteristics,” which included depriving his victims of more than $158,000 for

13 years and thrice violating his supervised release, warranted a more severe

sentence than the parties recommended. See 18 U.S.C. § 3583(e)(3).

      Tubby’s sentence is also substantively reasonable. Despite Tubby receiving

a reduction in his sentence of imprisonment from 125 months to 94 months of


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imprisonment for conspiracy, passing fictitious obligations, and committing wire

and social security fraud, Tubby again violated the law after being freed in March

2014 to complete his 5 years of supervised release. Tubby twice tested positive for

marijuana, yet the district court allowed him to return to drug treatment with no

further penalty. And within 5 months of his release, Tubby started applying for

lines of credit without permission from his probation officer. He used at least 15

credit card accounts to purchase property until the officer discovered Tubby’s

wrongdoing about 4 years later. Tubby squandered the money that he owed to the

victims of his fraud to pay his credit card bills. The district court considered the

statutory factors and the purposes for sentencing and reasonably determined that

they were best served by revoking Tubby’s supervised release and requiring him to

serve 4 months in prison followed by 56 months of supervised release, including

four months of house arrest. See 18 U.S.C. §§ 3583(e)(3), 3553. The district court

considered Tubby’s arguments about his history of drug addiction and his post-

traumatic stress disorder and varied downward to impose a sentence of

imprisonment two months below the low end of his recommended sentencing

range. That Tubby’s sentence is substantially less than his maximum statutory

penalty of 3 years of imprisonment evidences that his sentence is reasonable. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The district court

did not abuse its discretion.


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We AFFIRM Tubby’s sentence.




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