           Case: 14-15661   Date Filed: 07/14/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15661
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 8:11-cr-00263-SDM-TGW-1



KENTON D. PURVIS,

                                                         Defendant-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee.

                      ________________________

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

                             (July 14, 2015)



Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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         Kenton Purvis appeals his 24-month sentence, imposed for violating

conditions of his supervised release. Purvis raises three issues on appeal, which we

address in turn. After review, we affirm Purvis’s sentence.

                                    I. DISCUSSION

         As the parties are familiar with the facts of this case, we will not recount

them in detail. We include only those facts necessary to the discussion of each

issue.

A. Felon in possession of firearm charge

         Purvis first asserts the district court committed plain error by considering

that he was originally indicted for, but not convicted of, a charge of being a felon

in possession of a firearm in its imposition of sentence.

         Where, as here, a defendant does not raise an objection to the district court’s

consideration of an impermissible factor at the time of sentencing, this Court

reviews for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th

Cir. 2014). Plain error occurs when there is (1) an error, (2) that is plain, (3) that

affect substantial rights, and (4) that error seriously affects the fairness or integrity

of judicial proceedings. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir.

2010). “A substantial right is affected if the appealing party can show that there is

a reasonable probability that there would have been a different result had there

been no error.” United States v. Bennett, 472 F.3d 825, 831-32 (11th Cir. 2006).


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      The district court is free to consider any information relevant to a

defendant’s “background, character, and conduct” in imposing an upward variance.

United States v. Tome, 611 F.3d 1371, 1379 (11th Cir. 2010) (holding it was proper

for the district court to take into account a withheld adjudication in imposing an

upward variance because it was relevant to the defendant’s background, character,

and conduct). However, the district court may take uncharged or acquitted conduct

into account in sentencing only if such conduct is proven by a preponderance of

the evidence. United States v. Faust, 456 F.3d 1342, 1347-48 (11th Cir. 2006).

      The district court did not commit plain error. Although the district court did

not make a finding the prior charge was proven, there was no substantial rights

violation because Purvis admitted facts establishing his guilt as to that prior charge.

His plea agreement included his admission the police recovered a firearm from him

when he was arrested following a controlled drug buy. In addition, the presentence

investigation report (PSI), to which he did not object, stated he was a felon and

possessed a firearm while his rights had not been restored. See Bennett, 472 F.3d

at 832 (“A sentencing court’s findings of fact may be based on undisputed

statements in the PSI.”); United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.

2006) (stating a defendant who does not object to the facts in the PSI is deemed to

have admitted them for sentencing purposes). As a result, Purvis cannot establish

plain error.


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B. Need for rehabilitation

      Next, Purvis contends the district court abused its discretion by improperly

considering his welfare and rehabilitation when imposing its sentence of

imprisonment. He explains the district court stated it sentenced Purvis based on

the need to “protect him from himself” and “give him the maximum time available

to regain his sobriety.”

      As an initial matter, Purvis failed to preserve this argument before the

district court because he did not inform the district court of the legal basis he now

argues. “[F]or a defendant to preserve an objection to her sentence for appeal, she

must raise that point in such clear and simple language that the trial court may not

misunderstand it. When the statement is not clear enough to inform the district

court of the legal basis for the objection, we have held that the objection is not

properly preserved.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006)

(quotation and citation omitted). We applied plain error review in Vandergrift,

where the appellant argued on appeal that the district court improperly considered

rehabilitation in sentencing him to imprisonment, but did not do so before the

district court. 754 F.3d at 1307, 1309-1312.

      In Tapia v. United States, 131 S. Ct. 2382, 2391 (2011), the Supreme Court

held a sentencing court may not impose or lengthen a prison term in order to

promote an offender’s rehabilitation. In Vandergrift, we extended Tapia’s holding


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to a term of imprisonment imposed after the revocation of supervised release.

Vandergrift, 754 F.3d at 1309.

      In Vandergrift, the defendant served a prison sentence for possession and

distribution of child pornography. Id. at 1305. His supervised release was later

revoked and the district court sentenced him to 24 months’ imprisonment. Id. at

1306. We determined the district court erred in considering rehabilitation when it

imposed Vandergrift’s sentence and assumed for the sake of analysis the error was

plain. Id. at 1310-12. Nevertheless, we affirmed because Vandergrift had failed to

prove the third prong of the plain error test—the error affected his substantial

rights. See id. at 1312. Specifically, Vandergrift failed to show his sentence would

have been different, because the sentencing transcript reflected that his

rehabilitative needs constituted only a minor portion of the district court’s

reasoning. Id. We explained, “[t]he [district] court’s primary considerations were

for the safety of the public and deterring others from similar conduct.” Id.

      We will assume without deciding that the district court committed error that

is plain by considering rehabilitation in imposing Purvis’s sentence. However,

Purvis has not established this error affected his substantial rights by showing a

reasonable probability he may have received a lower sentence but for the district

court’s error. Like the court in Vandergrift, the district court considered

rehabilitation in imposing a sentence of imprisonment, but this consideration only


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reflected a minor portion of the court’s reasoning. The district court primarily

focused on the seriousness and continuing nature of Purvis’s violations, public

safety, and the need to deter him from further criminal activity. Therefore, Purvis

cannot establish plain error.

C. Substantive reasonableness

      Purvis argues his 24-month sentence is substantively unreasonable. We

review the reasonableness of a sentence using a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 41 (2007).

      If a defendant violated a condition of supervised release, the district court

may, after considering certain factors set forth in § 3553(a), revoke the supervised

release, and impose a term of imprisonment on the defendant for the offense that

resulted in the term of supervised release. 18 U.S.C. § 3583(e)(3). These factors

include the nature and circumstances of the offense and the history and

characteristics of the defendant, the need for the sentence imposed to afford

adequate deterrence to criminal conduct and to protect the public from further

crimes of the defendant, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.

§ 3553(a)(1), (a)(2)(B)-(C), (a)(4)-(7).




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      The district court did not abuse its discretion in sentencing Purvis to an

above-the-guidelines, statutory maximum sentence of 24 months’ imprisonment.

While Purvis received a sentence at the statutory maximum, well above the top-end

of the advisory guidelines range of 8 to 14 months, above-guidelines sentences do

not result in a presumption of unreasonableness. See Gall, 552 U.S. at 47. While

the district court must have a justification compelling enough for an upward

variance to the statutory maximum, “we will vacate such 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. Early, 686 F.3d 1219, 1221 (11th Cir. 2012). Here, the district

court presented a justification compelling enough for an upward variance to the

statutory maximum.

      It is uncontested the district court adjudicated Purvis in violation of his

supervised release based on six violations. Despite receiving a continuance of his

initial revocation hearing with a warning he would go to prison if he committed

another violation, Purvis not only continued to violate his supervised release, but

committed one of the same violations as he did earlier (testing positive for

marijuana). Furthermore, several of the later violations were of a serious nature,

including fleeing from the police, which placed the police officers and bystanders


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in danger. Purvis’s sentence reflected the nature and circumstance of the offense,

the need to protect the public from his actions, and the need to deter him from

further criminal activity after his repeated violations of supervised release. See 18

U.S.C. § 3553(a)(1), (a)(2)(B)-(C). As a result, Purvis’s sentence is not a clear

error of judgment and not outside the range of reasonable sentences in light of the

totality of the circumstances and § 3553(a) factors. See United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc) (explaining a district court abuses its

discretion and imposes a substantively unreasonable sentence when it fails to

afford consideration to relevant factors that were due significant weight, gives

significant weight to an improper or irrelevant factor, or commits a clear error of

judgment in considering the proper factors). Purvis’s sentence is substantively

reasonable.

                                 II. CONCLUSION

      Accordingly, Purvis’s sentence is AFFIRMED.




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