              Case: 13-11545    Date Filed: 09/03/2013   Page: 1 of 9


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11545
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 3:07-cr-00033-VMC-TEM-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

CREDICE FREEMAN,

                                                             Defendant-Appellant.

                          ________________________

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

                               (September 3, 2013)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Credice Freeman appeals his sentence imposed upon revocation of his

supervised release, pursuant to 18 U.S.C. § 3583(e)(3). Freeman argues that his
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24-month sentence, ten months above the advisory guidelines range of 8 to 14

months, is substantively unreasonable because it was based on Freeman’s need for

rehabilitation. After review, we affirm Freeman’s sentence.

                               I. GENERAL PRINCIPLES

       We review a sentence imposed upon revocation for reasonableness. United

States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). Our reasonableness

review applies the deferential abuse of discretion standard. Gall v. United States,

552 U.S. 38, 41, 46, 128 S. Ct. 586, 591, 594 (2007). 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 18 U.S.C. § 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1190

(11th Cir. 2008). 1 The party challenging the sentence has the burden to show it is

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

       A district court may revoke a term of supervised release and impose a term

of imprisonment after considering certain factors in § 3553(a) and the advisory

ranges of imprisonment in Chapter 7 of the Sentencing Guidelines. 2 18 U.S.C.


       1
         On appeal, Freeman does not challenge the district court’s revocation of his supervised
release or raise any procedural error with respect to his revocation proceedings. Thus, these
issues are abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)
(explaining that a party abandons an issue on appeal by failing to raise it plainly and
prominently).
       2
        The relevant § 3553(a) factors the court must consider are: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant: (2) the need to
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§ 3583(e); United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006). A

revocation sentence may be substantively unreasonable, however, if it is based

upon impermissible factors. United States v. Velasquez Velasquez, 524 F.3d 1248,

1252 (11th Cir. 2008); see also Pugh, 515 F.3d at 1191-92.

             II. REASONABLENESS OF FREEMAN’S SENTENCE

       Citing Tapia v. United States, 564 U.S. ___, 131 S. Ct. 2382 (2011),

Freeman argues that a district court is prohibited from considering his

rehabilitation need in choosing his term of imprisonment. Prior to Tapia, this

Court had concluded that a district court may consider a defendant’s rehabilitative

needs when imposing a sentence in a revocation proceeding. See United States v.

Wiggins, 220 F.3d 1248, 1249 (11th Cir. 2000). In Tapia, the Supreme Court

concluded that, in initial sentencing proceedings, the text of 18 U.S.C. § 3582(a)

prevents a sentencing court from “impos[ing] or lengthen[ing] a prison sentence to

enable an offender to complete a treatment program or otherwise to promote

rehabilitation.” Tapia, 564 U.S. at ___, 131 S. Ct. at 2393.

       This Court has not yet addressed whether Tapia applies to revocation

proceedings and need not resolve the issue here. Even assuming arguendo that it is


afford adequate deterrence; (3) the need to protect the public; (4) the need to provide the
defendant with educational or vocational training or medical care; (5) the Sentencing Guidelines
range and pertinent policy statements of the Sentencing Commission; (6) the need to avoid
unwarranted sentencing disparities; and (7) the need to provide restitution to victims. See 18
U.S.C. § 3583(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B) through (D), and (a)(4)
through (7)).
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impermissible to consider a defendant’s rehabilitation need in choosing a

revocation sentence, a review of the record as a whole convinces us that the district

court did not do so in Freeman’s case. Instead, the district court varied upward

from the advisory guidelines range and imposed a 24-month sentence because

while on supervised release Freeman cut off his ankle monitor and absconded.

      In his argument Freeman focuses on several statements the district court

made during the revocation hearing. In the first statement, the district court said, “I

think that you need to go back to square one, Mr. Freeman, and you need to

recognize that when you have a problem, you need to get help for that problem.”

In the second statement, the district court said, “I think, in some ways, you’re

better off in prison getting the help that you need without - - with boundaries

clearly in place . . . .” Taken in isolation, these two statements appear to support

Freeman’s claim that the district court considered rehabilitation needs when it

sentenced him. However, when these statements are understood in the context of

the history of Freeman’s supervision and the revocation hearing as a whole, they

demonstrate that the district court did not, in fact, rely solely or even primarily on

Freeman’s need for any sort of rehabilitation when it sentenced him.

      During the first six months of supervised release, Freeman failed two drug

tests and did not attend required drug treatment counseling sessions. Freeman

admitted that he was having difficulty adjusting back into the community and


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agreed to stay in a residential reentry center (“the center”) for 180 days. Once at

the center, Freeman fainted and was taken to the emergency room. Doctors

advised Freeman that he had a potentially life-threatening condition (the nature of

which is not disclosed in the record) and needed follow-up treatment. Freeman

continued to have medical problems, requiring the center’s staff to call for

transport to the emergency room multiple times. Yet, Freeman refused either to go

to the hospital or to get the recommended follow-up treatment.

       The center ultimately discharged Freeman due to his medical condition and

his refusal to get medical treatment. As a result, Freeman agreed to again modify

his supervised release, and the district court ordered him to serve the remaining

164 days in home detention. During home detention, Freeman could not leave his

residence except for employment and was required to wear an electronic

monitoring device. When his probation officer tried on four occasions to visit

Freeman at his home, Freeman was not there. Based on these four unsuccessful

visits and Freeman’s failure to complete his community service requirements, the

probation officer filed the petition for revocation of Freeman’s supervised release. 3

       At the revocation hearing, Freeman admitted all of the supervised release

violations. The government advised the district court that in December 2012,


       3
        Specifically, Freeman was charged with four counts of failing to comply with the home
detention program by leaving his residence without authorization and one count of failing to
complete any of the 25 hours of the court-ordered community service.
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Freeman “cut the ankle monitor and was gone and probation was unable to locate

him.” In March 2013, U.S. Marshals found Freeman hiding in his mother’s attic

and arrested him. The government asked for a 24-month sentence because

Freeman’s conduct “in absconding and hiding from the officers and the probation

office” went beyond what the government typically saw “in someone who uses

drugs or can’t find a job” and then violates supervision. The district court stated

that it agreed with the prosecutor that Freeman’s conduct was not typical.

      In response, Freeman explained that he “probably would have been better

off” if he had remained at the center, but that he had refused treatment for his

medical condition because he could not afford to pay for it. When he was

discharged from the center and placed on home detention, “the financials [in his

family’s home were] bad,” and he had to deal with them on his own, which threw

him “into a loop.” Freeman further argued that he had undiagnosed mental health

issues and that “it’s just tough to deal with those, especially with people with

mental health issues that tend to try to self-medicate when they can’t afford to go

to a doctor or pay for the medication that they should be taking.” The district court

stated that, although it was sympathetic to somebody having mental health issues,

it was Freeman’s responsibility to make sure he got appropriate treatment and that

his mental health issues might help explain Freeman’s conduct, but did not excuse

it.


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      In imposing a 24-month sentence, the district court stated that it had

considered the § 3553(a) factors and the advisory guidelines range and the

Sentencing Commission’s policy statements. The district court stressed the fact

that when Freeman began having problems at home, Freeman cut off his ankle

monitor, absconded, and hid from, rather than sought help from, his probation

officer, as follows:

             In particular, Mr. Freeman, is the fact that you cut off the
      monitor; you absconded; you were hiding. Those are just inexcusable.
      I think that you need to go back to square one, Mr. Freeman, and you
      need to recognize that when you have a problem, you need to get help
      for that problem. You just absolutely have to do that. And you need
      to stay away from situations that are going to cause you problems
      down the road. If you think you need help, you call your probation
      officer. I mean, I’m not going to put you on probation anymore, but I
      mean, that’s what you should have done back then. And there are
      community resources available to help somebody like you today.
           I’m sorry, I’m not going to change my mind. I have made up
      my mind after listening to you and after listening to the prosecutor.
             I think, in some ways, you’re better off in prison getting the
      help that you need without - - with boundaries clearly in place, and
      once you’re released from prison, there’s no more probation, and
      you’ll be on your own there. And I just urge you to not violate the
      law because you have a hefty criminal history, and another judge is
      going to take a look at this if you break the law again and you’re
      going to go to prison for a long time, and you just don’t want that
      happening to you.

After pronouncing the sentence imposed, the district court asked “what kind of

programs should [Freeman] participate in?” Both Freeman and the probation

officer indicated that Freeman was interested in the barber program, and the district

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court indicated that it would recommend that Freeman participate in that program.

Thus, the district court’s question referred to possible vocational training, not

rehabilitation. The district court stated that it also would recommend that Freeman

receive a mental health evaluation and treatment, but at no time did the district

court suggest that this was the basis for sentencing Freeman above the advisory

guidelines range.

      From the forgoing detailed recitation of what transpired in the district court,

it is apparent that it was not Freeman’s “problems” (i.e., his financial and mental

health issues), but Freeman’s cutting his ankle monitor and absconding that

motivated the district court to impose a sentence above the advisory guidelines

range. To the extent the district court discussed Freeman’s “problems,” it was to

emphasize that they did not excuse his extreme and unusual conduct warranting an

upward variance. Although the district court recommended that Freeman receive

mental health treatment while in prison, nothing the district court said suggests that

it chose a longer sentence so that Freeman could get such treatment or any other

rehabilitation while in prison.

      Further, while the district court expressed a belief that Freeman might be

better off in a structured environment such as prison, the district court’s comment

was made as part of a warning to Freeman that, once he finished his 24-month

prison term, he would no longer have the support of the probation office, but he


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would be on his own and would likely face a much longer sentence if he violated

the law again. When viewed as a whole, the district court’s statements reflect that

its reason for imposing a 24-month sentence was the circumstances of Freeman’s

violation of the conditions of his home detention, not Freeman’s need for

rehabilitation services.

      Accordingly, Freeman has not carried his burden to show that his 24-month

sentence is substantively unreasonable.

      AFFIRMED.




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