            Case: 14-13285   Date Filed: 03/24/2015   Page: 1 of 9


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13285
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:11-cr-00025-MEF-SRW-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                   versus

JIMMY CORNELL TERRY,

                                                      Defendant - Appellant.

                       ________________________

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

                             (March 24, 2015)

Before HULL, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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      Jimmy Cornell Terry appeals the district court’s revocation of his supervised

release and imposition of a 24-month sentence, the statutory maximum, which he

received based upon the terms of release the court found he violated. After careful

review, and for the reasons below, we affirm.

                                           I.

      In May 2012 Mr. Terry pled guilty to one count of failing to register as a sex

offender, in violation of 18 U.S.C. § 2250. He received a prison sentence to be

followed by 12 years of supervised release. As relevant here, under the terms of

his supervised release, Mr. Terry was prohibited from committing any federal,

state, or local crime, and he was required to notify his probation officer within 72

hours of any arrest. In September 2012, Mr. Terry began his term of supervised

release. Less than five months later, on January 31, 2013, Mr. Terry’s probation

officer petitioned the district court for revocation of Mr. Terry’s supervised release,

alleging that Mr. Terry committed five violations of the terms of his supervised

release: (1) an arrest for and charge of domestic violence on January 26, 2013; (2)

a charge of domestic violence on January 29, 2013; (3) a charge of violating

Alabama’s identification requirement for convicted sex offenders; (4) a charge of

failure to register as a convicted sex offender (specifically, by living at a location at

which he was not registered); and (5) failure to notify his probation officer of his

arrest within 72 hours. The district court conducted a revocation hearing on July


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17, 2014. At the hearing, Mr. Terry admitted the first two violations. The court

dismissed the third but found by a preponderance of the evidence that Mr. Terry

had committed the fourth and fifth violations. The court sentenced Mr. Terry to 24

months’ imprisonment, the statutory maximum, 1 to be followed by a lifetime term

of supervised release. Mr. Terry now appeals.

                                              II.

       Mr. Terry argues the district court erred in determining he violated the terms

of his supervised release by failing to report his arrest to his probation officer and

by residing at an unapproved address. To revoke a defendant’s term of supervised

release, the district court must find by a preponderance of the evidence that he

violated one or more conditions of his supervised release. United States v.

Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010) (citing 18 U.S.C.

§ 3583(e)(3)). We review the district court’s revocation decision for an abuse of

discretion, id., accepting the district court’s findings of fact unless they are clearly

erroneous. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). When

the evidence could give rise to two reasonable but different factual constructions,




1
  Under 18 U.S.C. § 3583(e)(3), the maximum term of imprisonment Mr. Terry could serve for
the violations the district court found he committed was two years. See 18 U.S.C. § 3583(e)(3)
(setting a two-year maximum sentence for Class C felonies and a one-year maximum for lesser
felonies); Ala. Code § 15-20A-10(j) (making failure to register as a sex offender a Class C
felony); id. § 13A-6-132(a)-(d) (making the domestic violence charges for which Mr. Terry was
arrested a Class A misdemeanor or, for a third domestic violence charge, a Class C felony).
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the district court’s choice between those two constructions is not clearly erroneous.

See United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012).

      Mr. Terry’s terms of supervised release included a statement that “the

defendant shall notify the probation officer within seventy-two hours of being

arrested or questioned by a law enforcement officer . . . .” At the revocation

hearing, Mr. Terry’s probation officer Chris Robertson testified that Mr. Terry

never contacted him about the domestic violence arrest. Instead, Mr. Robertson

testified, Mr. Terry’s brother and mother notified him of the arrest. The district

court concluded that Mr. Terry violated this term of release because, although Mr.

Robertson was notified of the arrest, Mr. Terry did not personally provide notice.

Mr. Terry contends his family’s notification was sufficient, but we cannot say the

district court’s literal interpretation of the term of supervised release, requiring “the

defendant” to notify Mr. Robertson, was clearly erroneous. See Almand, 922 F.2d

at 318. The district court, therefore, did not err in determining Mr. Terry violated

this term of supervised release.

      Pursuant to his judgment of conviction, Mr. Terry was also subject to

revocation of supervised release if he “commit[ed] another federal, state or local

crime.” Section 15-20A-10(b) of the Alabama Code requires sex offenders to

register with local law enforcement any time they establish a new residence. A

location is a “residence” under the Alabama Code if the offender resides there for


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three or more consecutive days or 10 or more aggregate days during a calendar

month. Id. § 15-20A-11(e). Violating the registration requirement is a felony

under Alabama law. See id. § 15-20A-10(j).

      During the revocation hearing, Mr. Terry’s counsel entered into evidence the

transcript of a state court’s April 2013 probation revocation hearing based on the

same arrest at issue here. At that hearing, Mr. Terry’s girlfriend Dorothy Spivey

testified that Mr. Terry sometimes would “come and stay two or three days a

week” from “September 2012 to January 2013.” Mr. Terry’s son testified that his

father began staying at Ms. Spivey’s house “a couple days after he got out of jail”

and stayed there “sometimes two or three days a week.” The government also

called a local police sergeant who was familiar with Mr. Terry, Christ Hurley, to

testify at the district court’s revocation hearing. Sergeant Hurley testified that, in

2012, Mr. Terry expressed a desire to reside at Ms. Spivey’s house; in January

2013, Ms. Spivey stated that Mr. Terry had stayed with her “one to three days” a

week since his release from prison; and also in January 2013, Mr. Terry and Ms.

Spivey’s daughter Carlisia Doster stated that Mr. Terry had been staying with Ms.

Spivey. In response to Sergeant Hurley’s testimony, the defense introduced an

affidavit from Ms. Spivey in which she stated: “Sometimes [Mr. Terry] spent the

night, but he never stayed more than a day or two before he would go back to his




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brother’s house. He did not live with me. He lived with his brother [at his

approved residence] over in Dale County.”

       We conclude the district court heard sufficient evidence to find by a

preponderance of the evidence that, by spending a significant number of nights

away from his approved residence and at the home of his girlfriend, Mr. Terry

established a new residence under the Alabama Code for which he failed to

register.2 Mr. Terry contends Ms. Spivey’s affidavit contradicts her testimony at

the state revocation hearing and should have been credited over that testimony, but

we do not see a necessary conflict. There is no indication that, in stating that Mr.

Terry “did not live” with her, Ms. Spivey knew the Alabama Code’s specific

definition of residence and meant to state Mr. Terry’s occupation of her home did

not meet that definition. Her affidavit otherwise confirms the substance of her

state court testimony: Mr. Terry sometimes stayed at her home for a couple of

days at a time. The district court took this testimony, in addition to that of Mr.

Terry’s son, to indicate that Mr. Terry stayed at Ms. Spivey’s home at least 10 days

in a month between his release from prison and his arrest. Based on the testimony

described above, we conclude the district court’s finding was not clearly



2
  The district court apparently misspoke in making this finding, stating that Mr. Terry resided at
Ms. Spivey’s home “more than 10 consecutive days and three or more days between September
11, 2012, and . . . January 26, 2013,” rather than three consecutive days or more than 10 total
days. Neither party asserts this actually was the court’s finding, however, and we are satisfied
that it was merely a mistake.
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erroneous.3 Thus, the court was within its discretion to sentence Mr. Terry based

on a violation of the term of his supervised release that he must not commit any

crime. See Almand, 922 F.2d at 318.

                                              III.

       Mr. Terry’s final contention is that his 24-month sentence, the statutory

maximum for the violations with which he was charged, is substantively

unreasonable. We review the reasonableness of a sentence, including one imposed

upon the revocation of supervised release, for an abuse of discretion. United States

v. Irey, 612 F.3d 1160, 1188-89 (11th Cir. 2010) (en banc); United States v.

Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). When imposing a sentence for

violating terms of supervised release, a district court must consider the factors

delineated in 18 U.S.C. § 3553(a), including the nature and circumstances of the

offense and history and characteristics of the defendant; the need for the sentence

imposed to afford adequate deterrence to criminal conduct, to protect the public

from further crimes by the defendant, and to provide the defendant with needed

educational or vocational training; and the kinds of sentences available and

established sentencing ranges. See 18 U.S.C. § 3553(a)(1)-(5). The weight to be

accorded any given factor generally is committed to the sound discretion of the

3
  The state court’s finding that there was insufficient evidence from which to conclude Mr. Terry
resided at Ms. Spivey’s home within the meaning of the Alabama Code does not persuade us
otherwise. The district court’s construction of the evidence was reasonable, and we do not
require it to be the only plausible interpretation. See Almedina, 686 F.3d at 1315.
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district court. United States v. Dougherty, 754 F.3d 1353, 1361-62 (11th Cir.

2014). A district court abuses its discretion by failing to afford consideration to

relevant factors that were due significant weight, giving significant weight to an

improper or irrelevant factor, or by committing a clear error of judgment in

considering the proper factors. Irey, 612 F.3d at 1189.

      Mr. Terry argues the district court abused its discretion in imposing the

statutory maximum sentence by giving too much weight to his criminal history —

the court emphasized that Mr. Terry had been arrested for 62 offenses during his

adult life and was “not learning [his] lesson” — and to his problems with alcohol,

while affording too little weight to other factors, such as the need to provide

educational or vocational training. We disagree. First, although Mr. Terry argues

to the contrary, ample evidence in the record supported the district court’s reliance

on Mr. Terry’s problems with alcohol in imposing an appropriate sentence. Ms.

Spivey’s testimony at the state court revocation hearing, entered into evidence in

this case, included that Mr. Terry’s arrest for domestic violence occurred after he

choked his son because he was drunk. The probation office’s presentence

investigation report (“PSI”) contained Mr. Terry’s admission that he often got into

fights while he was drinking but refused to seek treatment. The PSI also indicated

that Mr. Terry’s mother said he had a drinking problem. These facts, part of Mr.

Terry’s history and characteristics, properly were considered under § 3553(a).


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      Also contrary to Mr. Terry’s contention, the district court considered a

number of additional factors before imposing the sentence. The court stated that it

needed to impose a sentence that would protect the public from any future criminal

activity by Mr. Terry. And the court told Mr. Terry that its sentence needed to be

appropriately tailored to “a number of factors, both for your benefit and society’s

benefit.” Thus, it is clear that the district court considered a number of factors in

arriving at an appropriate sentence, and we cannot say that the court’s heavy

reliance upon Mr. Terry’s history and characteristics in this case was unreasonable.

See Dougherty, 754 F.3d at 1361-62.

                                          IV.

      For the foregoing reasons, we affirm the district court’s revocation of Mr.

Terry’s supervised release and the sentence it imposed.

AFFIRMED.




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