            Case: 19-12771    Date Filed: 11/13/2019   Page: 1 of 9


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12771
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:92-cr-00170-TFM-1



UNITED STATES OF AMERICA,

                                                             Plaintiff - Appellee,

                                    versus

RODNEY BLYTHE,

                                                         Defendant - Appellant.

                       ________________________

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

                             (November 13, 2019)

Before MARCUS, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

     Rodney Blythe appeals the sentence of 11 months’ imprisonment imposed
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following revocation of his supervised release. Blythe argues that his sentence is

substantively and procedurally unreasonable. We disagree and affirm.

                                          I.

      In 1992, Blythe was sentenced to life in prison without the opportunity for

parole followed by five years’ supervised release for conspiring to distribute crack

cocaine and knowingly distributing crack cocaine. After receiving sentence

reductions under 18 U.S.C. § 3582(c)(2) and an amendment to the Sentencing

Guidelines, Blythe was released from prison in November 2017 and began his five-

year term of supervised release in March 2018. Several months later, he was

arrested for drunk driving in Alabama after he ran his car off the road and took a

chemical breath test that revealed a blood alcohol level of .13. He entered a guilty

plea to an Alabama misdemeanor charge of driving under the influence of alcohol

and was sentenced to pay a fine and attend a DUI treatment program.

      Blythe’s probation officer filed a petition for a summons, alleging that

Blythe had violated the terms of his supervised release by committing a crime.

Blythe waived his right to a revocation hearing, admitted all relevant allegations in

the petition, and appeared for sentencing on July 11, 2019. He requested that the

district court impose a sentence concurrent with his state sentence, with no time in

prison. The government recommended that Blythe be sentenced to alcohol




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treatment with no jail time, which was the sentence that it had agreed to

recommend in exchange for Blythe’s waiver of a revocation hearing.

      Based on Blythe’s prior conviction for DUI in 1992 and his apparent ability

to function with a blood alcohol level of .13 without passing out, the district court

found that Blythe was an “accomplished drinker” who had a “longstanding

problem” with alcohol that he had not addressed, and that Blythe apparently did

not see driving under the influence as “that big of a deal.” The court imposed a

Guidelines sentence of 11 months’ imprisonment, followed by an additional 48

months’ supervised release. The court explained that a sentence without prison

time was not appropriate for someone who was under court supervision and put

innocent people at risk by choosing to drink and drive. Responding to Blythe’s

objections, the court stated that generally, a reasonable sentence for a person who

drove under the influence while on supervised release started in the range of 12

months or more. The court ultimately decided not to vary upward from the

Guidelines range of 5–11 months, finding that a sentence of 11 months’

imprisonment was reasonable under all the circumstances.

      On appeal, Blythe argues that his sentence was procedurally unreasonable

because the district court relied on a clearly erroneous factual finding—that Blythe

had an alcohol problem—and applied an incorrect legal standard by using a 12-

month sentence as a starting point rather than beginning with the Guidelines range.


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He also argues that his sentence was substantively unreasonable because the

district court inappropriately weighed the sentencing factors in 18 U.S.C.

§ 3553(a). We consider each argument in turn.

                                          II.

      We review a sentence imposed upon revocation of supervised release for

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

2014). “Our review for reasonableness is deferential, and the party challenging the

sentence has the burden of establishing unreasonableness.” United States v. Clay,

483 F.3d 739, 743 (11th Cir. 2007). A sentence may be procedurally unreasonable

if the district court miscalculated the Sentencing Guidelines range, treated the

Guidelines as mandatory, failed to consider the sentencing factors in § 3553(a),

based the sentence on clearly erroneous facts, or failed to provide sufficient

explanation for the sentence. Gall v. United States, 552 U.S. 38, 51 (2007).

      Blythe argues that the district court’s finding that he had a “longstanding

problem” with alcohol was clearly erroneous. For a factual finding to be clearly

erroneous, we “must be left with a definite and firm conviction that a mistake has

been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th

Cir. 2004) (citation omitted). The district court based its finding on the fact that

Blythe had two DUI convictions, one from shortly before he went to federal prison,

and one from shortly after he was released. Contrary to Blythe’s assertions, the


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fact that he was in federal prison for most of the time between those offenses

weighs in favor of the district court’s finding that he had a longstanding unresolved

alcohol problem, not against. It is reasonable to conclude that a defendant who is

convicted of DUI and then apparently drives drunk again at the first opportunity

has an alcohol problem. And the district court’s statement that someone with two

DUI convictions probably has driven drunk more than twice was a reasonable

inference “based on common sense and ordinary human experience.” United

States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam). The district

court’s finding that Blythe had a problem with alcohol was not clearly erroneous,

and to the extent that its sentencing decision was based on that finding, it was not

procedurally unreasonable.

                                          B.

      Blythe also argues that the district court failed to use the Sentencing

Guidelines range as the “starting point and the initial benchmark” in determining

his sentence. Gall, 552 U.S. at 49. The sentencing transcript shows otherwise.

Before imposing sentence, the district court specifically stated that it had

considered the relevant Sentencing Guidelines provisions and found “them to be

appropriate in this matter.” It then imposed a sentence at the high end of the

Guidelines range of 5–11 months. The court’s statement that a reasonable sentence

for a defendant who drives drunk while on supervised release is “probably within


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the 12-month or more range, depending on the facts or circumstances of the case”

was made after the court imposed sentence, in response to Blythe’s objections.

The court further explained that it had decided that an upward variance from the

Guidelines range was not appropriate under the particular circumstances of

Blythe’s case. It is evident, therefore, that the district court first correctly

calculated and considered the Guidelines range and then made “an individualized

assessment based on the facts presented.” Id. We find no procedural error in the

district court’s consideration and application of the advisory Guidelines.

                                           III.

      Blythe also argues that his 11-month sentence is substantively unreasonable.

We examine the substantive reasonableness of a sentence by considering the

“totality of the circumstances” and whether the sentence achieves the purposes

outlined in 18 U.S.C. § 3553(a). United States v. Sarras, 575 F.3d 1191, 1219

(11th Cir. 2009). Upon the revocation of supervised release, the district court must

consider the following § 3553(a) sentencing factors: (1) “the nature and

circumstances of the offense and the history and characteristics of the defendant;”

(2) the need to deter criminal conduct, protect the public, and provide the

defendant with needed education, training, or treatment; (3) the applicable

Sentencing Guidelines, including the Guidelines range and associated policy

statements; (4) avoiding unwarranted sentencing disparities; and (5) restitution to


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the victims of the offense, if any. 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D), (a)(4)–

(7); see 18 U.S.C. § 3583(e).

       “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) (citation and quotation marks omitted).

                                          A.

      Blythe argues that the district court improperly relied on the fact that he

received the benefit of various statutory changes and Guidelines amendments,

which reduced his life sentence to 324 months. He implies that the district court

must have disagreed with the policy reasons for the changes in the law. Again, this

contention is contrary to the record.

      The district court pointed out that Blythe had originally been sentenced to

life in prison, and that his sentence had been reduced “for whatever reason.” The

court went on to tell Blythe that he “should have learned from that process how

important it is to abide by the law, and particularly to abide by the conditions of

your release that you not violate the law.” Viewed in context, these comments

have nothing to do with the reasons that Blythe’s life sentence was reduced.


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Instead, the district court appropriately considered Blythe’s history and

characteristics, as well as the fact that even a substantial sentence of

imprisonment—and a narrow escape from a lifetime in prison—apparently had not

deterred Blythe from violating the law by drinking and driving. See 18 U.S.C.

§ 3553(a)(1), (a)(2)(B).

                                          B.

      Blythe also argues that the district court committed a clear error of judgment

in weighing the § 3553(a) factors because it gave insufficient weight to his

employment and lack of other supervised release violations and the

recommendations of the probation officer and the government that he receive no

prison time. But as we have said before, “it is within the district court’s discretion

to decide how much weight to give each § 3553(a) factor.” United States v.

Williams, 526 F.3d 1312, 1323 (11th Cir. 2008) (per curiam). The district court

considered multiple aspects of Blythe’s “history and characteristics,” including that

he had maintained employment and had not otherwise violated the conditions of

his supervised release—and that this was Blythe’s second DUI offense, committed

less than a year after his release from serving 25 years in prison. The district court

also considered the parties’ sentencing recommendations but disagreed with them,

noting that while a sentence of probation might be appropriate for a first-time DUI

offender who was not on supervised release, Blythe’s circumstances were


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different. The court emphasized that Blythe had chosen to drive while

significantly impaired, putting innocent people at risk and disregarding the

condition of release that he commit no additional crimes. This analysis is

consistent with the Guidelines policy statement that “at revocation the court should

sanction primarily the defendant’s breach of trust, while taking into account, to a

limited degree, the seriousness of the underlying violation and the criminal history

of the violator.” U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b).

      The bottom line is that, after considering the § 3553(a) sentencing factors,

the district court determined that Blythe’s positive conduct since his release did not

justify a downward variance from the Guidelines range, and that a high-end

Guidelines sentence was appropriate under all the circumstances. The resulting

sentence, which is well below the statutory maximum sentence of five years, is

within the “range of reasonable sentences from which the district court may

choose.” Williams, 526 F.3d at 1322; see 18 U.S.C. § 3583(e)(3); United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam). “We ordinarily

expect a sentence within the Guidelines range to be reasonable,” and that is the

case here. Gonzalez, 550 F.3d at 1324. Accordingly, we affirm.

      AFFIRMED.




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