           Case: 19-10233   Date Filed: 09/26/2019   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10233
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:05-cr-00045-SPC-MRM-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

                                   versus

DONALD RAY HORNE,

                                              Defendant - Appellant.

                       ________________________

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

                            (September 26, 2019)

Before JORDAN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Donald Horne appeals his sentence of 21 months’ imprisonment, which the

district court imposed after revoking his supervised release, pursuant to 18 U.S.C.

§ 3583. Horne challenges his sentence on two grounds. First, he argues that his

sentence violated the Fifth and Sixth Amendments because judicial factual findings

triggered a prison term lasting longer than the maximum sentence for the

underlying crime. Second, Horne argues that his sentence was substantively

unreasonable because of mitigating circumstances.

      We conclude that Horne’s first argument is foreclosed by binding precedent.

We also determine that the district court committed no abuse of discretion in

imposing his sentence. Therefore, after careful review, we affirm.

                              I.      BACKGROUND

      In 2005, Horne pleaded guilty to possession of ammunition as a person with

a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district

court sentenced Holmes to 180 months’ imprisonment and 5 years’ supervised

release. The court enhanced his sentence pursuant to the Armed Career Criminal

Act (“ACCA”).

      In 2016, Horne filed a motion under 28 U.S.C. § 2255 to vacate his

enhanced sentence. He argued that, based on the Supreme Court’s invalidation of

ACCA’s residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015), he no

longer qualified as an armed career criminal. Horne and the government jointly


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stipulated that Horne no longer qualified as an armed career criminal and agreed

that the district court should grant his § 2255 motion. Because Horne had already

been imprisoned for 11 years and, absent the ACCA enhancement, would have

faced a statutory-maximum sentence of 10 years’ imprisonment and 36 months’

supervised release, the government agreed that the district court should vacate its

original judgment and sentence Horne to time served followed by 36 months’

supervised release. The district court accepted the parties’ stipulation, vacated

Horne’s judgment, and imposed a new sentence of time served and 36 months’

supervised release.

      The probation office subsequently petitioned for the revocation of Horne’s

supervised release. Pursuant to 18 U.S.C. § 3583(e), the district court “may . . .

revoke a term of supervised release, and require the defendant to serve in prison all

or part of the term of supervised release authorized by statute for the offense that

resulted in such term of supervised release” if the court finds by a preponderance

of the evidence that the defendant violated the terms of his supervised release. 18

U.S.C. § 3583(e)(3). The district court held a revocation hearing, at which Horne

admitted three violations: two instances of cocaine possession and one drug test

that indicated cocaine use. The district court adjudicated Horne in violation of the

terms of his supervised release and proceeded to sentencing. The court identified

the advisory guideline range for the term of imprisonment resulting from the


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supervised release violations as 21 to 24 months. In mitigation, Horne highlighted

the facts that upon his release from prison he was not provided with a structured re-

entry program via a halfway house but still managed to secure employment and

follow the law for about 18 months. Horne also emphasized that he had served

more than the maximum permitted for his § 922(g) conviction and already was

serving a term of incarceration in state court for the drug-related conduct that

formed the basis of the violations of his supervised release. The government

responded by explaining that Horne’s criminal history was extensive: by the time

of his 2005 conviction, Horne had amassed 51 criminal history points, a score the

government characterized as “astronomical.” Doc. 122 at 21. 1

       The district court stated that it had looked at “everything,” including the

sentencing factors in 18 U.S.C. § 3553(a),2 Horne’s guideline range, and the

Sentencing Commission’s policy statements. Id. at 29. It then imposed a

21-month sentence.


       1
           “Doc. #” refers to the numbered entry on the district court’s docket.
       2
          Under § 3553(a), the district court is required to impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” of § 3553(a)(2)—the need to reflect the
seriousness of the offense; promote respect for the law; provide just punishment; deter criminal
conduct; protect the public from the defendant’s future criminal conduct; and effectively provide
the defendant with educational or vocational training, medical care, or other correctional
treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).

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      This is Horne’s appeal.

                       II.      STANDARDS OF REVIEW

      This Court reviews the constitutionality of a statute de novo. United States

v. White, 593 F.3d 1199, 1205 (11th Cir. 2010).

      We review for an abuse of discretion the reasonableness of the district

court’s sentence upon revocation of supervised release. United States v. Trailer,

827 F.3d 933, 935 (11th Cir. 2016). Under the abuse-of-discretion standard, we

will affirm any reasonable sentence, even if we think that a different sentence

would have been more appropriate. United States v. Irey, 612 F.3d 1160, 1191

(11th Cir. 2010) (en banc). The party who appeals the sentence bears the burden of

showing that the sentence is unreasonable considering the record and the § 3553(a)

factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

                                III.   DISCUSSION

      On appeal, Horne raises two arguments. First, he argues that 18 U.S.C.

§ 3583(e)(3) violates the Fifth Amendment, the Sixth Amendment, and Apprendi v.

New Jersey, 530 U.S. 466 (2000). Section 3583(e) provides:

      The court may . . . revoke a term of supervised release, and require the
      defendant to serve in prison all or part of the term of supervised release
      authorized by statute for the offense that resulted in such term of
      supervised release without credit for time previously served on
      postrelease supervision, if the court, pursuant to the Federal Rules of
      Criminal Procedure applicable to revocation of probation or supervised
      release, finds by a preponderance of the evidence that the defendant
      violated a condition of supervised release, except that a defendant

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      whose term is revoked under this paragraph may not be required to
      serve on any such revocation more than 5 years in prison if the offense
      that resulted in the term of supervised release is a class A felony, more
      than 3 years in prison if such offense is a class B felony, more than 2
      years in prison if such offense is a class C or D felony, or more than
      one year in any other case . . . .

18 U.S.C. § 3583(e)(3).

      Horne contends that the statute is unconstitutional because it permitted the

district court to revoke his term of supervised release and impose a new term of

imprisonment that exceeded the statutory maximum sentence available for his

original crime of conviction without conducting a jury trial on the question of

whether he violated his supervised-release conditions.

      Second, Horne argues that the district court’s 21-month sentence is

substantively unreasonable. We address each of these issues in turn.

A.    Horne Had No Right to a Jury Trial on the Question Whether He
      Violated His Supervised-Release Conditions.

      Horne argues that his 21-month sentence is unconstitutional. Specifically,

he contends that because he already served the statutory maximum sentence for his

original crime of conviction, the district court could not constitutionally impose a

term of imprisonment that would bring his total time served above that maximum

in the absence of jury findings supporting that new term of imprisonment. In

support of this argument, Horne cites the Supreme Court’s decision in Apprendi

and its progeny. The government responds that the Supreme Court and this Court


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have held that in the supervised-release context, no Apprendi violation occurs

when judicial factfinding increases the term of incarceration. We agree with the

government.

      In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490. Similarly, in Alleyne v. United States, 570 U.S. 99

(2013), the Supreme Court held that any fact that “aggravates the legally

prescribed range of allowable sentences” for a crime is an “element” that must be

submitted to a jury. Alleyne, 570 U.S. at 115-16. But the Supreme Court and this

Court both have held that, although supervised-release violations often lead to

reimprisonment, the violative conduct need only be found by a judge under the

preponderance of the evidence standard, and not by a jury beyond a reasonable

doubt. Johnson v. United States, 529 U.S. 694, 700 (2000); United States

v. Cunningham, 607 F.3d 1264, 1268 (11th Cir. 2010) (“[W]e hold [that]

§ 3583(e)(3) does not violate the Fifth or Sixth Amendments because the violation

of supervised release need only be proven by a preponderance of the evidence, and

there is no right to trial by jury in a supervised release revocation hearing.”). We

are bound by this precedent. See United States v. Brown, 342 F.3d 1245, 1246

(11th Cir. 2003) (explaining that a prior panel precedent binds subsequent panels


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unless or until it is overruled or undermined to the point of abrogation by this

Court sitting en banc or by the Supreme Court). Therefore, Horne has shown no

violation of his Fifth and Sixth Amendment rights when the district court imposed

a new term of imprisonment that exceeded the statutory maximum sentence

available for his original crime of conviction without conducting a jury trial. See

Johnson, 529 U.S. at 700; Cunningham, 607 F.3d at 1268.

       Horne requests a remand for resentencing, arguing that the Supreme Court’s

recent decision in United States v. Haymond, 139 S. Ct. 2369 (2019), cast fresh

light on the constitutionality of § 3583(e)(3). We disagree. Haymond explicitly

reserved the question whether § 3583(e)(3) violates Apprendi. 139 S. Ct. at 2382

n.7 (“[W]e do not pass judgment one way or the other on § 3583(e)’s consistency

with Apprendi.”).3 Because Haymond did not overrule or abrogate our precedent,

Horne’s argument fails. See Brown, 342 F.3d at 1246.

B.     The District Court’s 21-Month Sentence Was Not an Abuse of
       Discretion.

       Horne argues that the district court’s 21-month sentence is substantively

unreasonable, reasoning that the district court failed to give sufficient weight to the

facts that: he had served excess time in prison for his underlying offense; he had

been provided with no transitional program upon leaving prison and had worked


       3
       Because we agree with the government on the merits of Horne’s constitutional
argument, we decline to address the government’s contention that Horne waived that argument.

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hard to stay employed before relapsing; and he would receive no federal credit for

time that he currently is serving in state prison. The government responds that the

district court did not abuse its discretion in imposing a consecutive 21-month

sentence based on Horne’s extensive criminal record. We again agree with the

government.

      This Court evaluates the reasonableness of a sentence the district court

imposed by considering the totality of the circumstances. Tome, 611 F.3d at 1378.

The district court must impose a sentence “sufficient, but not greater than

necessary,” to further the purposes listed in § 3553(a). Kimbrough v. United

States, 552 U.S. 85, 101 (2007) (internal quotation marks omitted). Generally, the

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court. United States v. Williams, 526 F.3d 1312,

1322 (11th Cir. 2008). A district court commits a clear error of judgment,

however, when it “considers the proper factors but balances them unreasonably”

and imposes a sentence that “does not achieve the purposes of sentencing as stated

in § 3553(a),” Irey, 612 F.3d at 1189-90 (internal quotation marks omitted). We

will vacate a sentence 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.” Id. at 1190 (internal quotation marks omitted). That a


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sentence falls within the applicable guideline range is one indicator of its

reasonableness. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). In

contrast, a court’s “single-minded[]” focus on one factor to the detriment of other

relevant sentencing factors “is a symptom of an unreasonable sentence.” United

States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006) (internal quotation marks

omitted).

      Here, the district court committed no clear error of judgment in determining

an appropriate sentence. The district court’s 21-month sentence was within

Horne’s guideline range, which indicates its reasonableness. See Hunt, 526 F.3d at

746. Moreover, the district court was entitled to weigh more heavily Horne’s

extensive criminal history than the mitigating factors Horne highlighted. See

Williams, 526 F.3d at 1322. Given the district court’s statement that it considered

“everything,” Doc. 122 at 29, Horne cannot demonstrate that the court focused

“single-mindedly” on his criminal history to the detriment of other relevant

sentencing factors, Crisp, 454 F.3d at 1292. For these reasons, Horne has failed to

meet his burden to show that the district court’s 21-month sentence was

substantively unreasonable.

                               IV.    CONCLUSION

      For the foregoing reasons, we affirm the district court’s sentence.

AFFIRMED.


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