           Case: 13-11710   Date Filed: 12/19/2013   Page: 1 of 15


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11710
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:02-cr-00045-ODE-LTW-18


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

KEATON LAMAR JOHNSON,
a.k.a. White Boy Keith,

                                                          Defendant-Appellant.

                       ________________________

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

                            (December 19, 2013)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Keaton Johnson appeals his sentence of 36 months’ imprisonment and one

year of supervised release imposed upon revocation of his supervised release.

Johnson argues that his sentence is procedurally and substantively unreasonable.

After review, we affirm.

                                I. BACKGROUND

      This is not Johnson’s first revocation of supervised release. We review his

earlier revocation and then this one.

A.    First Petition for Revocation of Supervised Release

      In 2002, Johnson pled guilty to conspiring to distribute cocaine and money

laundering. The district court imposed concurrent 87-month sentences, followed

by five years of supervised release. Later, Johnson’s prison term was reduced to

70 months, pursuant to Federal Rule of Criminal Procedure 35(b). On March 30,

2007, Johnson completed his prison term and began supervised release in the

Northern District of Georgia.

      Less than four months later, on July 19, 2007, Johnson’s probation officer

petitioned the district court for a warrant for his arrest and to revoke supervised

release. The petition alleged that Johnson: (1) was charged with new criminal

conduct, driving on a suspended license, in Tennessee; (2) had failed to answer the

probation officer’s questions truthfully concerning his reasons for leaving the

district; and (3) had traveled outside the district without the probation officer’s


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permission. The petition alleged that Johnson had told the probation officer that he

left the district for Tennessee due to an emergency concerning his daughter but that

the official police reports indicated Johnson told the arresting officers in Tennessee

that he was returning from Buffalo, New York.

B.    First Revocation Hearing

      At a revocation hearing, Johnson admitted the allegations. Johnson and his

fiancé told the district court that Johnson went to New York to sell some of her

jewelry because they were having financial problems and that Johnson was

returning from New York with the proceeds when he was arrested in Tennessee.

Johnson admitted asking Charmane Porter, the woman arrested with him in

Tennessee, to claim that the money belonged to her because Johnson feared his

probation officer would think he had returned to drug dealing.

      The district court found that Johnson had violated the conditions of his

supervised release. The district court stated that Johnson’s explanation for why he

was outside the district “[did] not compute” and found that Johnson “in fact [was]

lying still about what actually happened.” The district court further found that the

advisory guidelines range of three to nine months’ imprisonment was not adequate.

The district court revoked Johnson’s supervised release and imposed a twelve-

month sentence, followed by three years of supervised release.

C.    Second Petition for Revocation of Supervised Release


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      On August 15, 2008, Johnson was released from prison and began serving

his second period of supervised release. In May 2010, Johnson’s probation officer

again petitioned the district court for a warrant for Johnson’s arrest. The petition

alleged that Johnson had failed to report to the probation officer for the last two

months and his whereabouts were unknown.

      Johnson’s whereabouts remained unknown for almost three years, until

February 2013, when Johnson was arrested in Texas for presenting a fictitious

driver’s license to Transportation Security Administration officers at an airport.

Johnson’s probation officer then filed an amended petition, including this February

2013 arrest.

D.    Second Revocation Hearing

      At his second revocation hearing, Johnson admitted the allegations in the

amended petition and did not oppose revocation of supervised release. Johnson

requested a sentence within the advisory guidelines range of three to nine months.

      In mitigation, Johnson explained that he panicked after a traffic accident and

chose to abscond rather than risk revocation. Johnson said that, at that time of his

accident, his oldest son was facing an attempted murder charge, his grandson was

hospitalized and later passed away, and his mother was in poor health and having

financial troubles. Johnson submitted letters from his oldest son, his daughter, his




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girlfriend, and his girlfriend’s daughter, all of whom spoke generally of Johnson as

a caring and supportive father.

      The government asked for the maximum four-year sentence, noting that:

(1) the circumstances of Johnson’s Texas arrest raised suspicions that Johnson had

returned to the drug trade; (2) Johnson absconded for almost three years; (3) this

was Johnson’s second revocation, and he had served a one-year term after his first

revocation; and (4) at Johnson’s original sentencing, he received an 87-month

sentence, below the ten-year mandatory minimum, and then later received a

reduction to 70 months based on his cooperation.

      Johnson’s counsel objected to the government’s speculation that Johnson

had re-engaged in drug activity, noting that there was no evidence of drug

involvement in Texas. When the district court pointed out that there was also no

evidence of any non-drug-related activity in Texas, Johnson’s counsel stated that

Johnson was in Texas for a bike event.

      The district court sentenced Johnson to a three-year term, followed by one

year of supervised release. In considering “the 3553 factors,” the district court

emphasized the importance of “promoting respect for the law,” and that Johnson

“just disregarded the court’s instructions as far as supervised release goes,” and

“just basically decided that what he wanted to do was more important.” The




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district court further noted that the sentence was imposed as “punishment for Mr.

Johnson’s just skipping out on supervised release.”

      The district court stated it was “struck” by the letters from Johnson’s family

and acknowledged that his family regarded him as a good father. The court

concluded, however, that Johnson had offered “no real explanation for what

happened here.” The district court stressed that Johnson “decided to absent

himself from the court’s supervision for several years.” The district court

acknowledged that it could not speculate about Johnson’s activities in Texas,

stating, “I won’t do that, but it just seems to me that there ought to be more

information coming in about what Mr. Johnson was doing during the period when

he was absconding from supervised release.” The district court credited Johnson’s

explanation of the family problems at the time that he absconded, but concluded

that the explanation was not sufficient, stating that if Johnson had not been caught

in Texas, he would “still be out on the lamb.” Finally, the district court opined that

Johnson’s case was not a “good case for giving him a break,” because he had

already received a break on his original sentence, and it was Johnson’s second

revocation.

      Johnson objected “to the substantive reasonableness of the length of the

sentence” and “to the substantive reasonableness of the imposition of an additional

year of supervised release.” Johnson then appealed.


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                                II. DISCUSSION

A.    General Principles

      Pursuant to 18 U.S.C. § 3583(e), a district court may revoke a term of

supervised release and impose a term of imprisonment after considering certain

factors set forth in 18 U.S.C. § 3553(a). The district court also must consider the

policy statements in Chapter 7 of the Sentencing Guidelines, including

recommended, non-binding ranges of imprisonment. United States v. Silva, 443

F.3d 795, 799 (11th Cir. 2006); U.S.S.G. § 7B1.4.

      Here, the parties do not dispute that, with a Grade C violation and a criminal

history of I, Johnson’s recommended guidelines range under advisory Chapter 7

was three to nine months’ imprisonment. See U.S.S.G. § 7B1.4(a). Because

Johnson was on supervised release for a Class A felony, the statutory maximum

sentence upon revocation was five years. See 18 U.S.C. § 3583(e)(3). However,

Johnson had already served one year after his first revocation. Thus, at Johnson’s

second revocation, the district court was authorized to impose up to four years of

supervised release. See United States v. Williams, 425 F.3d 987, 989 (11th Cir.

2005) (concluding that “§ 3582(e)(3)’s statutory maximums apply in the

aggregate” for sentences imposed on multiple revocations of supervised release).

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

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


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(11th Cir. 2008). Our reasonableness review applies the deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 46, 128 S. Ct. 586,

591, 594 (2007). We first examine whether the district court committed any

significant procedural error and then whether the sentence is substantively

unreasonable in light of the § 3553(a) factors and the totality of the circumstances.

United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). The party

challenging the sentence has the burden to show it is unreasonable. United States

v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      If the district court decides to impose an upward variance, “it must ‘consider

the extent of the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance.’” United States v. Williams, 526

F.3d 1312, 1322 (11th Cir. 2008) (quoting Gall, 552 U.S. at 50, 128 S. Ct. at 597).

However, 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. Shaw,

560 F.3d 1230, 1238 (11th Cir. 2009) (internal quotation marks omitted).

B.    Procedural Reasonableness

      Johnson contends his sentence is procedurally unreasonable because the

district court improperly speculated that Johnson had committed additional


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criminal conduct in Texas. 1 A sentence is procedurally unreasonable if the district

court, inter alia, selected a sentence based on clearly erroneous facts. See Gall,

552 U.S. at 51, 128 S. Ct. at 597; see also United States v. Barrington, 648 F.3d

1178, 1197 (11th Cir. 2011) (explaining that the district court “may not speculate

about the existence of a fact that would result in a higher sentence” and instead the

government must prove the fact by “reliable and specific evidence” (internal

quotation marks omitted)).

       The record belies Johnson’s claim. In explaining the sentence, the district

court explicitly stated that it would not speculate on whether Johnson was engaged

in wrongdoing in Texas. Rather, the district court merely observed that, although

Johnson was requesting mitigation, he had provided “no real explanation” of his

whereabouts during the nearly three years he was a fugitive. The district court’s

comments reflected its frustration with Johnson’s failure to explain adequately his

activities over that three-year period and its unwillingness to give Johnson yet

another “break” in light of that failure.

C.     Upward Variance and Substantive Reasonableness

       Johnson argues that his 36-month sentence is “unreasonably harsh.” While

Johnson’s sentence is above the recommended guidelines range in Chapter 7, it

       1
          The government contends we should review Johnson’s procedural reasonableness claim
only for plain error because he did not raise this procedural objection to his sentence in the
district court. We need not decide if plain error review applies because we conclude that there
was no procedural error, plain or otherwise.
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was 12 months below the statutory maximum. Furthermore, the totality of the

circumstances warranted the upward variance.

       Johnson not only failed to report to his probation officer, he also absconded

from supervised release for three years and was found only after he was arrested in

Texas. Although Johnson explained that he initially absconded because he

“panicked” after his accident, he did not provide a satisfactory explanation for why

he then remained a fugitive for almost three years and appeared to have no

intention of turning himself in when he was caught by authorities. Additionally,

this was Johnson’s second revocation, and the one-year sentence he received for

his first revocation had not deterred him from violating the terms of his supervised

release again. Finally, as the district court noted, Johnson had received a

significant sentence reduction of 17 months as a result of the government’s Rule

35(b) motion. See U.S.S.G. § 7B1.4, cmt. n.4 (providing that “an upward

departure may be warranted” if the defendant’s “original sentence was the result of

a downward departure (e.g., as a reward for substantial assistance)”). Under the

totality of the circumstances, we cannot say the district court abused its discretion

when it imposed a 27-month upward variance.2

D.     Relevant Factors in Revocations and Substantive Reasonableness



       2
        In addition, Johnson has not shown that the district court’s decision to impose an
additional year of supervised release after his three-year prison term was an abuse of discretion.
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      Johnson alternatively contends his sentence is substantively unreasonable

because the district court considered improper factors. A revocation sentence may

be substantively unreasonable if it is “based entirely” on impermissible factors.

Velasquez Velasquez, 524 F.3d at 1252.

      Specifically, Johnson points to the district court’s comments about

“promoting respect for the law” and “punishment” and argues that those factors

were omitted from 18 U.S.C. § 3582(e)(3)’s list of factors to consider.

      In initial sentencing, courts consider the § 3553(a) factors which are:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed—
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant
             (D) to provide the defendant with needed educational or
      vocation training, medical care, or other correctional treatment in the
      most effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range established [under
      the Sentencing Guidelines or federal statute];
      (5) any pertinent policy statement [of the Sentencing Commission or
      Congress];
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of similar
      conduct; and
      (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).




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      Revocations of supervised release are governed by 18 U.S.C. § 3583(e).

Section 3583(e) provide that a district court “may, after considering the factors set

forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and

(a)(7)” revoke a term of supervised release. 18 U.S.C. § 3583(e)(3). In other

words, § 3583(e)(3) references most, but not all, of the § 3553(a) factors, and does

not reference the factors in 18 U.S.C. § 3553(a)(2)(A)—“the need for the sentence

imposed . . . to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense.”

      Ordinarily, we review de novo whether the district court considered an

impermissible factor. Velasquez Velasquez, 524 F.3d at 1252. Because Johnson

did not object to his sentence on this ground in the district court, however, we

review this claim only for plain error. United States v. Castro, 455 F.3d 1249,

1251 (11th Cir. 2006). Here, Johnson has not shown plain error.

      First, even assuming arguendo that the district court considered the factors in

§ 3553(a)(2)(A), it is not “plain” that those factors are impermissible in the

revocation context. Section 3583(e)(2) contains a list of factors district courts are

obligated to consider but that list does not purport to be exhaustive and does not

identify any impermissible factors. Thus, § 3582(e)(3) does not explicitly prohibit

consideration of the factors in § 3553(a)(2)(A).




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      Neither this Court nor the Supreme Court has addressed whether it is error to

consider a factor listed in § 3553(a)(2)(A) in imposing a sentence after revoking

supervised release. Other circuits that have addressed this issue do not agree. The

First, Second, Third, and Sixth Circuits have concluded that it is not error, while

the Fourth, Fifth, and Ninth Circuits concluded that it is error. Compare United

States v. Vargas-Davila, 649 F.3d 129, 131-32 (1st Cir. 2011); United States v.

Young, 634 F.3d 233, 238-39 (3d Cir. 2011); United States v. Lewis, 498 F.3d

393, 399-400 (6th Cir. 2007); United States v. Williams, 443 F.3d 35, 47-48 (2d

Cir. 2006); with United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011); United

States v. Crudup, 461 F.3d 433, 438-39 (4th Cir. 2006); United States v. Miqbel,

444 F.3d 1173, 1181-83 (9th Cir. 2006). Under such circumstances, any alleged

error cannot be “plain.” See United States v. Moriarty, 429 F.3d 1012, 1019 (11th

Cir. 2005) (explaining that an error cannot be plain “[w]hen neither the Supreme

Court nor this Court has resolved an issue, and other circuits are split on it”).

      Second, even assuming it was error to consider the factors in

§ 3553(a)(2)(A) in the revocation context, a review of the district court’s

comments as a whole convinces us that the district court did not do so here.

Subsection (a)(2)(A) is concerned with the seriousness of the defendant’s offense

and the need to promote respect for the criminal law the defendant violated and to

provide just punishment for the defendant offense. Sentences imposed upon


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revocation, on the other hand, are not directed toward “any new criminal conduct”

committed by the defendant. U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b). Instead,

revocation sentences are imposed primarily as a sanction for the defendant’s

breach of trust. Id. (explaining that “at 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”).

      Here, the district court, after stating that “promoting respect for the law” was

important, pointed out that Johnson had “disregarded the court’s instructions as far

as supervised release goes” and instead “decided that what he wanted to do was

more important.” The district court then stated that Johnson’s sentence was

“punishment” for “just skipping out on supervised release.” In other words, the

district court’s concern was for Johnson’s flagrant disregard of the court-ordered

terms of his supervised release and not for Johnson’s possible violation of any

criminal statutes. The district court appropriately considered Johnson’s breach of

trust and “to a limited degree” the seriousness of Johnson’s violations. See

U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b). Significantly, the district court’s stated

concerns were equally relevant to other, explicitly permissible factors under

§ 3583(e)(3), such as the nature and circumstances of Johnson’s violations (i.e., his

blatant disregard of the court-ordered terms of supervised release) and the need to


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afford deterrence of further such blatant violations (either by Johnson or others).

For these reasons, we are convinced the district court did not in fact consider either

“promot[ing] respect for the law” or “provid[ing] just punishment for the offense”

as those phrases are used in § 3553(a)(2)(A).

      For all these reasons, Johnson has not carried his burden to show that his 36-

month sentence is substantively unreasonable.

      AFFIRMED.




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