              Case: 16-13048    Date Filed: 03/20/2017   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-13048
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 3:12-cr-00045-CAR-CHW-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

DARIUS SANTAS BRIGHTWELL,
a.k.a. Skeet,

                                                             Defendant-Appellant.
                          ________________________

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

                                (March 20, 2017)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Darius Brightwell appeals the sentence of 24-months imprisonment imposed

following the revocation of his supervised release under 18 U.S.C. § 3583(e). At

the same sentencing hearing, the district court also imposed a separate 24-month
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sentence for a new conviction, which was the crime that triggered the revocation of

Brightwell’s supervised release. The district court ordered the two sentences to run

consecutively, despite the government’s recommendation to the contrary. In this

appeal, Brightwell argues his sentence was substantively unreasonable because it

was too harsh and unjustifiably relied on his criminal history to the exclusion of

the other 18 U.S.C. 3553(a) factors. He also argues it was substantively

unreasonable for the district court to impose this sentence consecutive to the

sentence he received for the new conviction. After careful review, we affirm.

                                        I.
      On August 28, 2015, Brightwell pleaded guilty to possession with intent to

distribute. Brightwell also admitted violating the terms of his supervised release

from a previous conviction. For his violation of supervised release, the

presentence investigation report (“PSR”) calculated a guideline range of 33 to 41

months. Because 24-months imprisonment was the statutory maximum sentence,

the PSR recommended Brightwell receive 24 months. The PSR also noted that

United States Sentencing Guidelines policy is that this sentence be served

consecutive to any other term of imprisonment. See USSG § 7B1.3 cmt. n.4.

      At the sentencing hearing for both Brightwell’s violation of supervised

release and his new conviction, the district court acknowledged the government’s

recommendation that the two sentences be imposed concurrently. The court also


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noted Brightwell’s history of drug abuse, his health problems, and his “very

serious criminal history.” The district court said it considered the 18 U.S.C.

§ 3583(e) factors and sentenced Brightwell to 24-months imprisonment to be

served consecutive to his sentence for the new conviction. The court explained

that it ran the sentences “consecutively [] because of the very serious criminal

history.” The court also recommended Brightwell for a drug treatment program.

                                               II.
       “We review the sentence imposed upon revocation of supervised release for

reasonableness.”1 United States v. Velasquez Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008) (per curiam). “We review the substantive reasonableness of a

sentence for an abuse of discretion.” United States v. Osorio-Moreno, 814 F.3d

1282, 1287 (11th Cir. 2016). We will vacate a sentence “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.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation omitted).

“The weight given to any specific § 3553(a) factor is committed to the sound




       1
         The government argues this Court should review this appeal for plain error because
Brightwell did not object to the substantive reasonableness of his sentence before the district
court. But the government fails to cite binding precedent that a failure to object to the
substantive reasonableness of a sentence results in plain error review.
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discretion of the district court.” United States v. Croteau, 819 F.3d 1293, 1309

(11th Cir. 2016). 2

       In revoking a term of supervised release, the district court is required to

consider the nature and circumstances of the offense; the history and characteristics

of the defendant; the need to afford adequate deterrence to criminal conduct and to

protect the public from the defendant’s further crimes; and the need to provide the

defendant with educational or vocational training, medical care, or other

correctional treatment in the most effective manner. 18 U.S.C. § 3583(e); see id.

§ 3553(a)(1), (a)(2)(B–D). The district court must also consider the sentencing

ranges established by the Sentencing Guidelines and any pertinent policy statement

from the sentencing commission. Id. § 3583(e); see id. § 3553(a)(4–5).

                                              III.
       Brightwell challenges the substantive reasonableness of his sentence in two

ways. First, Brightwell argues the sentence was substantively unreasonable

because it was too harsh and unjustifiably relied on his criminal history to the

exclusion of the other § 3553(a) factors. He highlights mitigating factors,

including his drug addiction and commitment to change, as well as his medical

condition. At the sentencing hearing, the district court said it considered the 18

U.S.C. § 3583(e) factors, which adopt most of the § 3553(a) factors. It is true that

       2
        Most of the factors in 18 U.S.C. § 3553(a) apply in revocation of supervised release
proceedings. 18 U.S.C. 3583(e).
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the district court emphasized Brightwell’s “very serious criminal history,” but it

was within the court’s discretion to do so. See Croteau, 819 F.3d 1293, 1309. The

court also recognized relevant mitigating factors, including Brightwell’s history of

drug abuse and his health problems, and recommended Brightwell for a drug

treatment program. Therefore, Brightwell has not demonstrated that the district

court failed to consider mitigating factors or improperly weighed the sentencing

factors.

      Second, Brightwell argues it was substantively unreasonable for the district

court to impose the two sentences consecutively. The sentencing court may order

two terms of imprisonment to run concurrently or consecutively. 18 U.S.C.

§ 3584(a). In making this decision, the court must consider the factors set forth in

§ 3553(a), id. § 3584(b), which instructs courts to consider the pertinent policy

statements of the Sentencing Commission. Id. § 3553(a)(5). The Guidelines

recommend that “any sentence of imprisonment for a criminal offense that is

imposed after revocation of . . . supervised release be run consecutively to any term

of imprisonment imposed upon revocation.” USSG § 7B1.3, cmt. n.4. Because

the district court followed this recommendation, Brightwell cannot show it abused

its discretion in running the two sentences consecutively.

      AFFIRMED.




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