             Case: 16-12101    Date Filed: 01/13/2017   Page: 1 of 8


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-12101
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:06-cr-20397-UU-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

KAREEM JACKSON,
a.k.a. Jamar Fields,
a.k.a. Face,

                                                            Defendant-Appellant.
                         ________________________

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

                              (January 13, 2017)

Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Kareem Jackson appeals his 24-month sentence of imprisonment following

the revocation of his supervised release, pursuant to 18 U.S.C. § 3583(e)(3). On
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appeal, Jackson argues that his sentence is substantively unreasonable because the

supervised-release violations proved by the government were minor and did not

warrant an upward variance from the guideline range of 6 to 12 months. The

court’s decision to vary upward, Jackson contends, indicates that the court

improperly relied on more substantial, but unproven, conduct alleged by the

government. After careful review, we affirm.

      In 2007, Jackson pled guilty to holding a person in peonage, in violation of

18 U.S.C. § 1581(a). According to the plea colloquy, Jackson held a minor to a

condition of involuntary servitude and compelled her to work for him as a

prostitute until she could repay $800 that Jackson claimed she owed him. For this

offense, Jackson was sentenced to 84 months of imprisonment followed by three

years of supervised release. Jackson began serving his term of supervised release

on July 19, 2012.

      In March 2013, the district court granted the U.S. Probation Office’s petition

to modify the terms of supervised release to include a search condition. In October

2013, the court granted Probation’s petition to modify the terms of supervised

release to include participation in a sex-offender treatment program and location

monitoring for 90 days.     In that petition, Probation alleged that had Jackson

violated the conditions of his supervised release by twice submitting a urine

specimen which tested positive for cocaine.


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      In February 2014, Jackson admitted to unspecified violations of his

supervised release. On April 10, 2014, following a hearing, the district court

“revoked” Jackson’s supervised release and resentenced him to a three-year term

of supervised release, but no imprisonment.        At that time, the court relieved

Jackson of his obligation to participate in a sex-offender treatment program but

ordered him to attend an anger-management program.

      About six months later, in October 2014, Probation petitioned the district

court to revoke Jackson’s supervised release. Probation alleged that Jackson had

committed the offenses of sexual battery, robbery, and burglary (Violations 1–3),

and had failed to maintain full-time employment (Violation 4). In a superseding

petition, Probation added that Jackson had failed to give notice of his change in

residence from Virginia to Indiana (Violation 5). On October 26, 2015, over a year

after the court issued a warrant for his arrest, Jackson was arrested in Indianapolis,

Indiana.

      A magistrate judge held an evidentiary hearing on the revocation petition in

December 2015. For Violations 1–3, the government alleged that a victim had

reported that Jackson attacked her with pepper spray and then invaded her vaginal

cavity in search of cash. The government claimed that the victim was afraid to

testify, however, so it sought to rely on hearsay statements from the victim through

the testimony of others. Jackson objected to the use of hearsay to sustain the


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violations. Ultimately, the magistrate judge found that live testimony from the

victim was necessary for Violations 1–3.       Accordingly, the magistrate judge

recommended that Violations 1–3 be denied and dismissed, but that Violations 4

and 5, which Jackson had conceded, be sustained. The district court adopted the

magistrate judge’s recommendation over the government’s objections.

      At the sentencing hearing, the district court announced the guideline range

(6 to 12 months of imprisonment) and the statutory maximum term (24 months of

imprisonment). Then, the court recounted Jackson’s supervised-release history,

noting that the court had extended his supervised release in April 2014 to give him

an opportunity to demonstrate “that he’s not as bad a guy as he appears to be.”

“And now here we are again,” the court said, “and for technical reasons, Mr.

Jackson has escaped three of his violations and he has two violations that have

stuck.”

      The district court specifically addressed one of the violations that had

“stuck”—Jackson’s failure to notify Probation of his change of address. In the

court’s view, this violation was an “aggravating factor” because Jackson did not

just fail to notify Probation of a change of address. Rather, he had effectively

absconded to Indiana from Virginia, where he had previously resided. Probation

could have but did not charge Jackson’s change in jurisdiction as a separate

violation, because it would not have affected the guideline range, but the court


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suggested that Probation do so in the future because it “certainly might change

someone’s perspective on the defendant.”

      The    government     recommended       the   two-year   maximum     term    of

imprisonment with an additional term of supervised release to follow.             The

government suggested that the court could take into account Violations 1–3, but

also noted that Jackson had been hostile toward Probation throughout his time on

supervised release.

      Jackson contended that the district court could not consider Violations 1–3.

And, in Jackson’s view, imposing the statutory maximum was “really to punish

him for the charges that have been dismissed.” The district court responded,

“Well, or to punish him for having been such a pain on supervision.” The court

elaborated that it had given Jackson a chance and that he “blew it,” having

“managed to find [his] way back here again for whatever reason, including, in [the

court’s] view, absconding to Indianapolis.” Consequently, the court varied upward

and imposed a two-year sentence with no supervised release to follow. Jackson

objected to the court’s sentence and findings of fact, and he now brings this appeal.

      We review the sentence imposed upon revocation of supervised release for

reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th

Cir. 2008). We review the reasonableness of a sentence under a deferential abuse-

of-discretion standard. United States v. Trailer, 827 F.3d 933, 935–36 (11th Cir.


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2016). The party who challenges the sentence bears the burden of showing it is

unreasonable. Id.

      If a defendant violates a condition of his supervised release, the district court

may revoke a defendant’s supervised release and impose a prison term. 18 U.S.C.

§ 3583(e)(3). When sentencing a defendant upon revocation of supervised release,

the district court must consider the following § 3553(a) factors: (1) the nature and

circumstances of the offense and the history and characteristics of the defendant;

(2) the need for deterrence, protection of the public, and rehabilitation; (3) the

guideline range and the kinds of sentences available; (4) any pertinent policy

statements; (5) the need to avoid sentencing disparities; and (6) the need to provide

restitution to any victims. See 18 U.S.C. §§ 3583(e), 3553(a)(1), (a)(2)(B)–(D), &

(a)(4)–(7). The court may, in its discretion, give greater weight to some factors

over others. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir.

2015). And the court may vary above the range established by the Sentencing

Guidelines. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).

      We may not presume that a sentence outside the guideline range is

unreasonable, and we must give due deference to the district court’s decision that

the § 3553(a) factors justify the extent of the variance. United States v. Irey, 612

F.3d 1160, 1186–87 (11th Cir. 2010) (en banc) (stating that the justification given

should be sufficiently compelling to support the degree of variance). We will


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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.” Id. at 1190 (quotation marks omitted); Trailer, 827 F.3d

at 936.

      Here, the district court’s decision to impose a two-year sentence of

imprisonment with no supervision to follow was a permissible exercise of its

discretion. We find not support in the record for Jackson’s contention that the

court impermissibly relied on unproven conduct in varying above the guideline

range. Although the parties discussed this conduct, it played no role in the court’s

explanation of its reason for the variance, and the court expressly rejected defense

counsel’s suggestion that a two-year term could have been warranted only if the

unproven conduct were considered. The court explained that the reason for the

upward variance was because Jackson had blown the chance the court gave him in

April 2014, when the court extended his term of supervision rather than ordering

imprisonment. In the court’s view, Jackson had been a “pain” to Probation, as

even defense counsel acknowledged, and he had “managed to find [his] way back

here again for whatever reason, including . . . absconding to Indianapolis.”

      The record amply supports the district court’s determination that a sentence

at the statutory maximum of 24 months of imprisonment was necessary to sanction


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Jackson for his breach of the court’s trust and his disregard for the conditions of his

supervised release. See U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b) (“[A]t revocation the

court should sanction primarily the defendant’s breach of trust, while taking into

account, to a limited degree, the seriousness of the underlying violation and the

criminal history of the violator.”).     In April 2014, after Jackson admitted to

violating the conditions of his first term of supervised release, the court gave him a

chance, despite the seriousness of his underlying conduct, and extended his term of

supervised release for three years. Around six months later, Probation petitioned

to revoke his supervised release. But Jackson was not found until over a year after

the arrest warrant issued, having effectively absconded to another state. In light of

these facts, we do not find that the district court abused its discretion in concluding

that an upward variance was appropriate. See Irey, 612 F.3d at 1190; Silva, 443

F.3d at 799 (finding that an upward variance was warranted based on the

defendant’s numerous probation violations);

      For these reasons, we affirm Jackson’s sentence.

      AFFIRMED.




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