            Case: 12-12633   Date Filed: 02/14/2013   Page: 1 of 10




                                                           [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-12633
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 2:04-cr-00176-SLB-JEO-1



UNITED STATES OF AMERICA,

                      Plaintiff - Appellee,

versus

DANIEL LAFFITE DUMONDE,
a.k.a. Daniel Laffite Dumonde,
a.k.a. Paul Moore,
a.k.a. Danny,
a.k.a. Daniel Spencer,
a.k.a. Daniel Pruitt Spencer,

                      Defendant - Appellant.

                        ________________________

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

                             (February 14, 2013)
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Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

      Daniel Laffite Dumonde, a federal prisoner proceeding pro se, appeals his

24-month sentence, which is the statutory maximum and represents an upward

variance of 12 months, following the revocation of his supervised release. He

argues on appeal that: (1) his sentence is procedurally and substantively

unreasonable; (2) the sentencing judge was biased against him; (3) the judge’s

decision to impose an upward variance the night before sentencing violates his due

process and Sixth Amendment rights; and (4) the district court judge’s reliance on

criminal history to support the upward variance, without an enumeration of the

specific offenses underlying that decision, violated Dumonde’s Sixth Amendment

rights. We find no merit in any of these contentions and affirm.

   1. Reasonableness of Sentence

      Dumonde first argues that his sentence was procedurally and substantively

unreasonable. He begins by submitting that the district court failed to adequately

explain the reasons for the sentence imposed and erred by referencing his criminal

history as a basis for an upward variance without spelling out exactly which

criminal offenses supported the variance. He then argues that the 24-month

sentence is substantively unreasonable because it is greater than necessary to give

effect to the purposes of sentencing.


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      A sentence imposed upon revocation of supervised release is reviewed for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.

2006) (per curiam). Our reasonableness inquiry includes two distinct elements: we

first determine whether a sentence is procedurally reasonable, and then turn our

attention to whether the sentence is, on the whole, substantively reasonable. See

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008) (per curiam). We

review the reasonableness of the sentence imposed by the district court “under

[the] deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38,

41, 128 S. Ct. 586, 591 (2007).

      In reviewing the reasonableness of a sentence, we consider the factors

enumerated in § 3553(a). United States v. Pugh, 515 F.3d 1179, 1188 (11th Cir.

2008); see 18 U.S.C. § 3583(e) (providing that district court must consider the

§ 3553(a) sentencing factors when sentencing a defendant upon revocation of

supervised release). These factors include: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the need for the

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

and to provide just punishment for the offense; (3) the need to deter criminal

conduct; (4) the need to protect the public from further crimes of the defendant; (5)

the need to provide the defendant with educational or vocational training or

medical care; (6) the kinds of sentences available; (7) the United States Sentencing


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Guideline (Guideline) range; (8) policy statements of the United States Sentencing

Commission; (9) the need to avoid unintended sentencing disparities; and (10) the

need to provide restitution to victims. See 18 U.S.C. § 3553(a). The party

challenging a sentence “bears the burden of establishing that the sentence is

unreasonable in the light of both th[e] record and the factors in [§] 3553(a).”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam).

      To be procedurally reasonable, the district court must properly calculate the

Guideline range, treat the Guidelines as advisory rather than mandatory, consider

all of the § 3553(a) factors, and adequately explain the sentence imposed. See

United States v. Chavez, 584 F.3d 1354, 1364 n.13 (11th Cir. 2009). In explaining

the sentence, the district court should set forth enough information to satisfy the

reviewing court of the fact that it has considered the parties’ arguments and has a

reasoned basis for making its decision, United States v. Rita, 551 U.S. 338, 356,

127 S. Ct. 2456, 2468 (2007), but “nothing . . . requires the district court to state on

the record that it has explicitly considered each of the § 3553(a) factors or to

discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329

(11th Cir. 2005). Instead, the district court’s explanation suffices if it is clear from

the explanation that the court considered a number of the relevant sentencing

factors. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). If the

district court varies from the Guideline range, it must offer a justification sufficient


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to support the degree of the variance. See United States v. Irey, 612 F.3d 1160,

1187 (11th Cir. 2010) (en banc): see also Gall, 552 U.S. at 50, 128 S. Ct. at 597

(explaining that if the district judge “decides that an outside-Guidelines sentence is

warranted, he must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of the variance”).

        We discern no procedural infirmity in Dumonde’s sentencing. In

sentencing Dumonde, the district court explicitly referred to various § 3553(a)

factors, explaining that the 24-month sentence was necessary to reflect the

seriousness of Dumonde’s offense, promote respect for the law, provide just

punishment, and provide adequate deterrence to criminal conduct. The sentencing

court further emphasized that a variance above the Guideline range was “in

particular . . . necessary to protect the public from further crimes of the defendant.”

This explanation satisfies us that the district court considered the parties’

arguments and exercised its reasoned judgment in imposing Dumonde’s 24-month

sentence.1 See Rita, 551 U.S. at 356, 127 S. Ct. at 2468.

       Dumonde also contends that his sentence was procedurally unreasonable

because it was incumbent upon the district judge to specify exactly which parts of

1
        Insofar as Dumonde’s brief can be read to argue that the district court erred by failing to
provide a written statement of reasons for the variance in accordance with § 3553(c)(2), any such
error was harmless in light of the district court’s thorough explanation of the reasons underlying
its decision. United States v. Suarez, 939 F.2d 929, 934 (11th Cir. 1991) (explaining that “a
review of the transcript of the sentencing proceedings and the [presentence investigation report]
allows this Court to engage in the meaningful review envisioned by the Sentencing Guidelines”).


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Dumonde’s lengthy criminal record formed the basis for the upward variance. The

problem with this argument, of course, is that no rule of law supports it. Nothing

requires the district court to parse through a defendant’s criminal record to specify

exactly which portions of that record form the basis for a given sentence. “It is

sufficient that the district court considers the defendant’s arguments at sentencing

and states that it has taken the § 3553(a) factors into account.” United States v.

Sanchez, 586 F.3d 918, 936 (11th Cir. 2009). The district court did just that, and

provided a compelling justification for the variance imposed. There was no

procedural error.

      Once we determine that a sentence is procedurally sound, we then examine

whether the sentence is substantively reasonable in light of the totality of the

circumstances, including the degree of any variance from the Guideline range.

Gall, 552 U.S. at 51, 128 S. Ct. at 597. In determining whether a sentence is

substantively reasonable, we engage in a “deferential” assessment of whether the

sentence imposed is sufficient, but not greater than necessary, to comply with the

purposes of sentencing set forth in § 3553(a)(2). Talley, 431 F.3d at 788. “In our

evaluation of a sentence for reasonableness, we recognize that there is a range of

reasonable sentences from which the district court may choose, and when the

district court imposes a sentence within the advisory Guidelines range, we

ordinarily will expect that choice to be a reasonable one.” Id. Thus, we will vacate


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and remand for a new sentencing “if, but 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 by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190

(internal quotation marks omitted); see also Pugh, 515 F.3d at 1194 (observing that

“a sentence may be unreasonable if it is grounded solely on one factor, relies on

impermissible factors, or ignores relevant factors”).

      Turning to the facts at hand, the district court found itself confronted with a

defendant who possessed an extensive history of property crimes, including

burglary, grand theft, acquiring an access card without consent, and making,

uttering, and possessing a counterfeit security. Dumonde had also twice been

convicted of using counterfeit checks to purchase diamond rings. The revocation

of supervised release in this case stems from Dumonde’s conviction for third-

degree theft of property in Alabama, a crime which involved the use of another

person’s credit card without permission. Dumonde’s history thus reveals that he

not only presents a threat of recidivism, but is indeed a chronic perpetrator of

larcenous property crimes. In other words, Dumonde is a thief. It should come as

no surprise, then, that a thief might end up in prison. We think the district court

was not only reasonable, but eminently so, in determining that an upward variance




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was necessary to promote respect for the law, provide just punishment, deter

Dumonde from further criminal activity, and protect the public from further crime.

   2. Personal Bias

      Dumonde summarily argues that the judge was biased against him because

she indicated at his sentencing that he “needed” and “deserved” the maximum

sentence. This argument fails. We construe Dumonde’s argument as a claim that

the district judge should have recused herself due to personal bias. Because

Dumonde did not raise this issue below, we review it only for plain error. See

United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (per curiam).

Dumonde points to nothing other than the fact of his sentence and the judge’s

explanation that he “needed” such a sentence—in other words, an adverse ruling—

to support his position that the judge was biased. “[A]dverse rulings alone do not

provide a party with a basis for holding that the court’s impartiality is in doubt.”

Id. (internal quotation marks omitted). Accordingly, Dumonde has failed to show

error—plain or otherwise—in the judge’s failure to recuse herself from this case.

   3. Due Process and Sixth Amendment Right to Counsel

      Dumonde next argues that the district judge violated his due process and

Sixth Amendment rights by deciding to impose an upward variance the night

before his sentencing. This argument fares no better. Again, because he offers this

argument for the first time on appeal, we review it only for plain error. See United


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States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). A defendant facing

revocation of supervised release is entitled to certain minimum due process rights,

including an opportunity to be heard in person. See Morrissey v. Brewer, 408 U.S.

471, 488–89, 92 S. Ct. 2593, 2604 (1972) (establishing minimum due process

rights at hearings for revocation of parole); United States v. Copeland, 20 F.3d

412, 414 (11th Cir. 1994) (explaining that Morrissey’s protections extend to

revocations of supervised release). Dumonde had the opportunity to be heard in

person, and was represented by counsel at the revocation proceeding. Dumonde

cites no caselaw—perhaps because there is none—for the proposition that the

district court erred by reviewing his case the night before his sentencing. And at

sentencing, the court heard arguments from Dumonde’s counsel and stated, “as I

started looking at [Dumonde’s] prior record, it was my decision at my thoughts last

night and still this morning that a high end sentence was appropriate.”

      In other words, the record reveals that the sentencing judge formed an initial

opinion concerning whether to impose an upward variance before the sentencing,

gave Dumonde’s counsel the opportunity to change that initial opinion at the

sentencing, but ultimately maintained the opinion after hearing the parties’

arguments. We see no infirmity here. A sentencing judge is not only permitted—

but is in fact well advised—to review a defendant’s record and to consider the facts

of a given case in advance of sentencing. Dumonde cannot show plain error in the


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district judge’s comment that she had decided to impose an upward variance the

night before sentencing.

   4. Failure to Specify the Specific Crimes Underlying the Variance

      Finally, Dumonde avers that the district court violated his Sixth Amendment

right to be informed of the nature and cause of the accusation underlying the

upward variance because the court cited his criminal history and “prior record,” but

failed to detail exactly which prior crimes it had in mind. We cannot agree.

Dumonde did not raise this issue below, and we therefore review it only for plain

error. See Rodriguez, 398 F.3d at 1298. “It is the law of this circuit that, at least

where the explicit language of a statute or rule does not specifically resolve an

issue, there can be no plain error where there is no precedent from the Supreme

Court or this Court directly resolving it.” United States v. Fontenot, 611 F.3d 734,

737 (11th Cir. 2010) (internal quotation marks omitted). No rule of the Supreme

Court or of this Court requires a sentencing to judge the state specifically which

parts of a criminal defendant’s lengthy criminal history form the basis for an

upward variance based upon the defendant’s prior criminal history. Accordingly,

this argument, as with all of Dumonde’s arguments on appeal, must fail.

      AFFIRMED.




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