           Case: 16-14867   Date Filed: 05/04/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-14867
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:08-cr-00172-WS-B-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

FERRELL BUTLER,

                                                         Defendant-Appellant.

                      ________________________

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

                              (May 4, 2017)

Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Ferrell Butler appeals his 36-month sentence, imposed for violating

conditions of his supervised release, and argues his sentence is procedurally and

substantively unreasonable. Butler was originally sentenced to a term of

imprisonment and four years’ supervised release after pleading guilty to possession

with intent to distribute 18.3 grams of crack cocaine, a Class B felony at the time

of his sentencing. While on supervised release, Butler sold or directed the sale of

controlled substances. When police officers searched a house where Butler was

present, they found drugs prepackaged for sale, bullets in the kitchen, and a loaded

firearm in the trunk of a car to which Butler had the only key. Further, the search

revealed that although Butler owned and lived in the house, he never notified his

probation officer that he changed residences.

      We review the sentence imposed upon the revocation of supervised release

for reasonableness under a deferential abuse of discretion standard. United States

v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014); Gall v. United States, 552

U.S. 38, 41 (2007). However, we review for plain error when a defendant fails to

object to the procedural reasonableness of a sentence imposed by a district court at

the time of sentencing. Vandergrift, 754 F.3d at 1307. Prevailing on plain error

review requires the plain error to affect substantial rights, or seriously affect the

fairness, integrity, or public reputation of judicial proceedings. United States v.

Olano, 507 U.S. 725, 732 (1993). One must also show a reasonable probability of


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a different result in the outcome of one’s case. United States v. Rodriguez, 398

F.3d 1291, 1299 (11th Cir. 2005).

      Pursuant to 18 U.S.C. § 3583(e), upon finding that the defendant violated a

condition of supervised release, a district court may revoke the term of supervised

release and impose a term of imprisonment after considering specific factors set

forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(e)(3). Those factors include:

(1) the nature and circumstances of the offense and the history and characteristics

of the defendant; (2) the need to deter criminal conduct; (3) the need to protect the

public; (4) the need to provide the defendant with medical care or other

correctional treatment; (5) the applicable guideline range; (6) the pertinent policy

statements of the Sentencing Commission; (7) the need to avoid unwarranted

sentencing disparities; and (8) the need to provide restitution to victims. Id.; 18

U.S.C. § 3553(a)(1), (a)(2)(B)–(D), and (a)(4) – (7).

      We employ a two-step process in reviewing the reasonableness of a

sentence. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We look

first at whether the district court committed any significant procedural error.

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We then determine

the substantive reasonableness of the sentence under the totality of the

circumstances. Id. The party challenging the sentence holds the burden of




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demonstrating the sentence’s unreasonableness in light of the record and the

sentencing factors. Id.

      In analyzing a sentence for significant procedural error, we examine factors

such as whether the district court incorrectly calculated the guideline range, failed

to consider the § 3553(a) factors, selected a sentence based on clearly erroneous

facts, or inadequately explained the chosen sentence. Gall, 552 U.S. at 51.

Nonetheless, where the record makes clear that the sentencing judge considered the

evidence and arguments for imposing a sentence outside the guideline range, even

a briefly worded statement of reasons for imposing a sentence is legally sufficient.

Rita v. United States, 551 U.S. 338, 359 (2007). Moreover, nothing requires the

court to state that it explicitly discussed each of the § 3553(a) factors, and the

sentence may be upheld as reasonable when the record indicates that the court

considered a number of the sentencing factors. United States v. Dorman, 488 F.3d

936, 944 (11th Cir. 2007).

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

discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007). However, a district court abuses its discretion when it (1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors. United States v. Irey, 612 F.3d


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1160, 1189 (11th Cir. 2010) (en banc). Furthermore, a district court’s unjustified

reliance on any one § 3553(a) factor to the detriment of all the others may indicate

an unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.

2006).

      When the underlying felony is a Class B felony, the term of imprisonment

imposed upon revocation of supervised release shall not exceed three years. 18

U.S.C. § 3583(e)(3).

      Butler failed to demonstrate the procedural or substantive unreasonableness

of his sentence. As an initial matter, Butler did not object to the procedural

reasonableness of his sentence at the revocation hearing. Thus, we review the

issue for reviewed for plain error. See Vandergrift, 754 F.3d at 1307.

      The court did not plainly err as to the procedural reasonableness of Butler’s

sentence. First, although the court did not calculate Butler’s guideline range,

Butler failed to show a reasonable probability that he would have received a

sentence below the statutory maximum had the court not erred; thus, the error did

not affect his substantial rights. See Rodriguez, 398 F.3d at 1299; Gall, 552 U.S. at

51. When imposing Butler’s sentence, the court expressed its clear intent to

sentence Butler to the highest sentence permitted by statute, which it stated was

appropriate in this case. The court explicitly stated that, unlike a sentence at the




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statutory maximum, a sentence within the guidelines would not be sufficient to

satisfy the statutory purposes of sentencing.

      Moreover, the record indicates that the district court adequately explained

the chosen sentence and considered a number of the § 3553(a) factors, including

the serious nature of the offense, the need for the sentence to deter future criminal

conduct and protect the public given Butler’s poor performance on supervised

release, Butler’s history and characteristics, and the inadequacy of a guideline

sentence. See 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(C), and (a)(4); Dorman, 488 F.3d

at 944.

      Additionally, Butler failed to demonstrate the substantive unreasonableness

of his sentence. As discussed above, the record shows that the court weighed a

number of the § 3553(a) factors before imposing Butler’s sentence, and it was

within the court’s discretion to accord more weight to certain sentencing factors.

See Clay, 483 F.3d at 743. As Butler failed to demonstrate that the court

improperly weighed the sentencing factors, committed a clear error of judgment, or

unjustly relied on one factor to the detriment of all the others, he failed to show

that the court abused its discretion in imposing the 36-month sentence. See Irey,

612 F.3d at 1189; Crisp, 454 F.3d at 1292. Accordingly, we affirm.

      AFFIRMED.




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