             Case: 13-14296     Date Filed: 04/14/2014   Page: 1 of 11


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                          ________________________

                                No. 13-14296
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 2:06-cr-14011-DLG-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JOHN PAUL EVERHART, II,

                                                              Defendant-Appellant.

                          ________________________

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

                                 (April 14, 2014)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      After revoking sex offender John Paul Everhart, II’s supervised release term,

the district court imposed a nine-month prison sentence followed by a life term of
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supervised release. On appeal, Everhart argues that the life supervised release term

is procedurally and substantively unreasonable. After review, we affirm.

                           I. BACKGROUND FACTS

A.    Original Sentence and Supervised Release

      In 2006, Everhart pled guilty to using a computer to persuade, entice, and

coerce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).

After serving a sixty-month sentence, Everhart began his 20-year supervised

release term on January 18, 2011. Among the terms of Everhart’s supervised

release were provisions requiring him to attend sex offender treatment and answer

truthfully to all of his probation officer’s inquiries and forbidding him from

violating any laws, associating with a convicted felon without permission,

possessing material depicting minors or adults engaged in sexually explicit

conduct, and possessing a computer containing an internal, external, or wireless

modem.

B.    First Revocation of Supervised Release

      On April 4, 2011, Everhart violated the terms of his supervised release by

failing to participate in court-ordered sex offender treatment. The district court

revoked Everhart’s supervised release and imposed a five-month prison sentence,

followed by 234 months (or 19.5 years) of supervised release. The district court




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ordered that all the other provisions of the original judgment remained in effect.

Everhart resumed supervised release on September 23, 2011.

C.    Petition for Second Revocation of Supervised Release

      In June 2013, Everhart’s probation officer petitioned for a warrant and

revocation of Everhart’s supervised release. A superseding petition charged seven

violations, one of which was later dismissed. The remaining charged violations

included: (1) failing to refrain from violating the law when, on May 23, 2012,

Everhart made a false statement to his probation officer that a 22 year-old female,

Davida Chea Brannon, was his cousin, when in fact she was not related to him; (2)

knowingly associating with a convicted felon, namely Brannon, between

September 2011 and March 2013 without his probation officer’s permission; (3)

failing to answer truthfully the probation officer’s inquiries about Brannon on

April 25, 2012, when Everhart requested to reside with Brannon; (4) failing to

answer truthfully the probation officer’s inquiries about Brannon on May 23, 2012;

(5) buying, selling, exchanging, possessing, trading, or producing visual depictions

of adults engaged in sexually explicit conduct when, on June 27, 2013, 27 DVDs

containing adult pornography were found in Everhart’s possession; and (6)

possessing or using a computer with an internal, external, or wireless modem

without prior court approval by using such a device between March 21, 2013 and

June 20, 2013 to access information about female prison inmates.


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D.     Evidentiary Hearing

       At an evidentiary hearing before a magistrate judge, Everhart’s probation

officers testified that Everhart lived in Miracle Village in Pahokee, Florida, an

isolated community that houses approximately 100 convicted sex offenders.1 In

April 2012, Everhart, who was 44, asked if his cousin Brannon could live with

him. Everhart told the probation officers that Brannon was a Florida prisoner who

was about to be released and needed a place to live. On May 21, 2012, Everhart’s

request was denied in writing. Everhart’s probation officers explained that

although a convicted felon was sometimes allowed to reside with a family member

who was on supervised release, in this instance, the probation officers did not think

it was a good idea for a 22-year-old woman to live in an isolated sex offender

community. In a subsequent discussion on May 23, 2012, Everhart reiterated to

one of his probation officers that Brannon was his cousin and had nowhere else to

live. During the conversation, Everhart became argumentative.

       After Everhart’s request was denied, one of the probation officers learned

that Brannon was not Everhart’s cousin, that Everhart made contact with Brannon

through a website for prisoner pen pals, that Everhart had written letters to

Brannon offering to give her drugs and asking her to lie to his probation officer

       1
         Miracle Village is a residential community for convicted sex offenders run by a non-
profit organization. The community is in a remote area surrounded by sugar cane fields. The
residents attend sex offender classes on site, but, because they are all convicted felons, they are
not otherwise allowed to have more than incidental contact with each other.
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about being his cousin, and that it was apparent from the letters that Everhart

wanted a sexual relationship with Brannon.2 As a result of this discovery, the

probation officers searched Everhart’s home and discovered numerous letters

written to different women inmates, computer printouts of contact information

from various prisoner pen pal websites, and adult pornography.

       The magistrate judge entered a report (“R&R”) recommending that Everhart

be found to have committed all six charged violations of his supervised release.

No parties objected to the R&R, which was adopted by the district court in a

written order.

E.     Sentencing after Revocation

       At a final revocation sentencing hearing, the district court found that the

imprisonment range was four to ten months. See U.S.S.G. § 7B1.4(a) (providing

for range of imprisonment of four to ten months for a Grade B violation and a

criminal history category of I). The government requested a ten-month sentence,

followed by twenty years’ supervised release, pointing out that Everhart had shown

an intent to circumvent his supervised release restrictions and had been

       2
         One of the probation officers interviewed Brannon, who was incarcerated for
methamphetamine possession and theft offenses. Brannon confirmed that she was not related to
Everhart, that Everhart had obtained her contact information from an inmate pen pal website, and
that he had written her letters. In his letters, Everhart told Brannon, inter alia, that he had
participated in filming adult pornography and that he could get drugs for them to take on their
first night together. Everhart told Brannon she would be living with him in West Palm Beach,
not Pahokee, and never said that he lived in a sex offender community. Everhart instructed
Brannon on what to write to his probation officer and what to say to her own probation officer so
that they could live together.
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confrontational with his probation officers. Everhart acknowledged his violations,

calling them “knucklehead[ed],” but claimed he had resorted to them due to the

isolation he felt “exiled” to a remote sex offender community in the Everglades.

Everhart noted that he had made personal progress over the past year, enjoyed his

work as a chef, and did not take drugs or drink, and he asked the court to give him

an opportunity to prove himself. Everhart requested a four-month sentence.

      The district court imposed a nine-month sentence, stating that it had

“carefully considered the statements of all parties and the information contained in

the violation report.” The district court also said that it had “determined that a

sentence within the guideline range is appropriate.” The district court also ordered

that, upon release, Everhart was to be placed on supervised release for life. After

Everhart objected “to the reasonableness of the sentence,” the district court

explained that “in large part [his] sentence is based upon [his] unwillingness to

cooperate with the United States Probation Office.” The district court stated that

on supervised release, Everhart was subject to restrictions “based upon [his]

conviction for a very serious crime” and was “not able to do or say whatever [he

thought he] want[ed] to say or do whatever [he] want[ed] to do.” The district court

stated, “It’s not that you just have to do these things, there’s a reason, there’s a

cause and effect.” The district court warned Everhart that he needed to abide by

his probation officers’ directives or he would face additional sanctions.


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                                 II. DISCUSSION

      When a defendant violates a condition of supervised release, the court may

revoke the supervised release term and impose a prison term. See 18 U.S.C.

§ 3583(e)(3). The district court may also “include a requirement that the defendant

be placed on a term of supervised release after imprisonment.” Id. § 3583(h). The

new term of supervised release is not bound by the length of the previously

imposed term, but instead to the underlying felony committed. United States v.

Pla, 345 F.3d 1312, 1315 (11th Cir. 2003).

      The new supervised release term may be longer than the initial supervised

release term imposed. Id. However, the new supervised release term cannot be

longer than “the term of supervised release authorized by statute for the offense

that resulted in the original term of supervised release, less any term of

imprisonment that was imposed upon the revocation of supervised release.” 18

U.S.C. § 3583(h). The statutorily authorized supervised release term for Everhart’s

sex offense was five years to life. See id. § 3583(k).

      “We review the sentence imposed upon the revocation of supervised release

for reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008). 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). In reviewing for reasonableness, we first consider whether the


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district court committed any significant procedural error and then whether the

sentence is substantively unreasonable in light of the relevant § 3553(a) factors and

the totality of the circumstances. United States v. Pugh, 515 F.3d 1179, 1190 (11th

Cir. 2008). 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).

       As to procedural reasonableness, Everhart contends that the district court did

not adequately explain its reasons for imposing a life term of supervised release.

In deciding the appropriate length and conditions of a supervised release term, the

district court considers certain factors set forth in 18 U.S.C. § 3553(a).3 18 U.S.C.

§ 3583(c). Under our precedent, the district court is not required to address each

§ 3553(a) factor on the record but must adequately explain the chosen sentence.

United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008); see also 18 U.S.C.

§ 3553(c). Generally, when the sentence is within the advisory guidelines range,

“the district court is not required to give a lengthy explanation for its sentence if

the case is typical of those contemplated by the Sentencing Commission.”

Livesay, 525 F.3d at 1090.


       3
         Specifically, the relevant factors the district court must consider are: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed to afford adequate deterrence, protect the public and provide the defendant
with needed educational or vocational training or medical care; (3) the Sentencing Guidelines
range and pertinent policy statements of the Sentencing Commission; (4) the need to avoid
unwarranted sentence disparities; and (5) the need to provide restitution. See 18 U.S.C.
§ 3583(c) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7)).

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      Here, the district court adequately explained the chosen sentence, including

the supervised release term, which was within the advisory guidelines range of five

years to life for Everhart’s underlying felony offense. See U.S.S.G. § 5D1.2(a),

(b)(2) (providing that the length of a supervised release term for a sex offense is

not less than five years and “may be up to life”). The district court stated that it

had considered the parties’ statements and the information in the violation report

and that a sentence within the advisory guidelines range was appropriate. After

Everhart objected to the sentence, the district court provided further explanation,

citing Everhart’s demonstrated unwillingness to cooperate with his probation

officers and to comply with supervised release conditions that were imposed based

on the seriousness of his underlying sex offense. The district court’s explanation

was sufficient, and Everhart has not shown his life term of supervised release is

procedurally unreasonable.

      We also cannot say that the supervised release life term is substantively

unreasonable. Everhart’s life term of supervision is within both the statutory range

and the advisory guidelines range for his underlying sex offense. See 18 U.S.C.

§ 3583(k); U.S.S.G. § 5D1.2(b)(2). We ordinarily expect a sentence within the

advisory guidelines range to be reasonable. Talley, 431 F.3d at 788. Furthermore,

the policy statement to U.S.S.G. § 5D1.2(b) recommends the statutory maximum

term of supervised release for sex offenders like Everhart. See U.S.S.G.


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§ 5D1.2(b), p.s. This Court has acknowledged that § 5D1.2(b)’s policy statement

“is consistent with Congress’s intention [reflected in 18 U.S.C. § 3583(k)] to

punish sex offenders with life terms of supervised release because of the high rate

of recidivism.” Pugh, 515 F.3d at 1199.

      Moreover, the nature of Everhart’s violations justified the district court’s

decision to impose a life term of supervision. Everhart’s underlying sex offense—

using a computer to persuade, induce, entice, and coerce a minor to engage in

sexual activity—was a serious one. Some of the supervised release conditions that

Everhart violated were designed in particular to keep him from engaging in similar

conduct, such as the special conditions prohibiting his unauthorized use of a

computer with Internet access and his possession of pornography. Through his six

violations, Everhart demonstrated an unwillingness and inability to abide by the

conditions of his supervised release. Not only did Everhart repeatedly lie to his

probation officers about his relationship to Brannon, whom he knew was a

convicted felon, but he also coached Brannon to lie to them as well. Under the

circumstances, the district court reasonably concluded that a life term of supervised

release was warranted to protect the public from recidivism and deter future

criminal conduct.

      Everhart’s claim is that a life supervised release term is too large an increase

from his original twenty-year supervised release term. However, a new supervised


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release term following revocation does not have to conform to the original

supervised release term. See Pla, 345 F.3d at 1315. Notably, this was Everhart’s

second revocation in less than two years, the first occurring after he failed to

participate in court-ordered sex offender treatment. Given that Everhart’s second

revocation involved intentionally deceiving his probation officers to circumvent his

supervised release conditions, the district court’s decision to impose the

recommended, maximum life term upon the second revocation was not

substantively unreasonable.4

       AFFIRMED.




       4
          Everhart does not appear to claim expressly that his nine month prison term should be
subtracted from his life supervised release term. However, there is no requirement to subtract
time served in prison from a life term of supervised release imposed upon revocation of
supervised release. See United States v. Crowder, 738 F.3d 1103, 1105 (9th Cir. 2013); United
States v. Cassesse, 685 F.3d 186, 191 (2d Cir. 2012); United States v. Rausch, 638 F.3d 1296,
1302-03 (10th Cir. 2011).
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