             Case: 12-12911    Date Filed: 12/28/2012   Page: 1 of 7

                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 12-12911
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:04-cr-00143-ODE-AJB-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

EDNECDIA (TINA) JOHNSON,
a.k.a. Tina Smith,

                                                            Defendant-Appellant.

                       ___________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                     ____________________________
                             (December 28, 2012)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      After revoking her term of supervised release, the district court sentenced

Ednecdia Johnson to 24 months’ imprisonment, which was above the advisory range
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suggested by the Sentencing Guidelines. Ms. Johnson appeals that sentence, arguing

that it is unreasonable and that the district court, by failing to hear her arguments in

mitigation, violated her due process rights. We affirm.

                                           I.

      Ms. Johnson, who at the revocation hearing chose not to contest the alleged

violations, does not take issue with the revocation of supervised release itself.

Instead, she contends that her sentence is unreasonable because it is above the 4-to-

10-month guidelines range. She argues that the district court failed to consider both

the guidelines range and the 18 U.S.C. § 3553(a) factors, did not give appropriate

weight to her mitigation evidence, and never identified the criminal classifications for

her violation.

      We have explained that where “a defendant [has] violated a condition of

supervised release, the district court may revoke the term of supervision and impose

a term of imprisonment after considering” the § 3553(a) factors. United States v.

Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007). Once the district court has made its

sentencing decision, we review it “only for abuse of discretion, and we use a two-step

process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). We “first

ensure that the district court committed no significant procedural error,” such as

failing to consider the guidelines range or the § 3553(a) factors. Gall v. United States,

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552 U.S. 38, 49, 51 (2007). But because the guidelines are, and have always been,

advisory “for sentences imposed upon revocation of supervised release, it is sufficient

that there be some indication that the district court was aware of and considered” the

sentencing range they establish. Campbell, 473 F.3d at 1349 (citations and quotation

marks omitted). Once we are satisfied that a sentence is procedurally sound, we then

weigh its “substantive reasonableness,” taking into account the “totality of the

circumstances.” Gall, 552 U.S. at 51.

      Ms. Johnson’s sentence, despite being 14 months above the top end of the

advisory guidelines, is reasonable. Although Ms. Johnson argues that the district

court failed to consider the guidelines range, the record does not support such a

conclusion. The district court certainly knew the suggested range, at one point even

prompting Ms. Johnson’s counsel to correct himself when he misstated it as 4 to 6

months. The court simply found the range inadequate, as Ms. Johnson had committed

“new, serious criminal conduct” that was “basically the same” as the criminal conduct

underlying her original conviction. As a result, the court found that “a sentence of 24

months is really minimal in terms of deterring future . . . misconduct.” Put simply, the

court decided “to give a sentence that’s above the advisory guideline” because it

most “adequately reflect[ed] the seriousness of the offense” and was most

“appropriate in light of [Ms. Johnson]’s characteristics of continuing fraudulent

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conduct.” There is nothing unreasonable about that decision.

      The district court’s explanation of the sentence makes clear that, in addition to

knowing and considering the guidelines range, it knew and considered the § 3553(a)

factors. The court used language taken directly from § 3553(a) in its explanation, and,

before giving that explanation, the court indicated that it would recite the § 3553(a)

factors despite not knowing whether it was “required to state [them] at a revocation

hearing or not.” Similarly, the record shows that the district court knew the criminal

classification of Ms. Johnson’s violations: Ms. Johnson’s counsel brought them to the

court’s attention several times, and those classifications formed the basis for the

applicable advisory guidelines range, which the court knew and considered despite

deciding to vary above it.

      Ms. Johnson’s final procedural concern—that the district court failed to give

appropriate weight to her mitigation evidence—also fails. “The weight to be accorded

any given § 3553(a) factor is a matter committed to the sound discretion of the district

court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotation marks

omitted). There is no question that the district court heard Ms. Johnson’s potentially

mitigating evidence regarding her continuing education, hard work and achievements

at her legitimate job, minimal criminal history, and mostly compliant conduct during

supervised release. When sentencing Ms. Johnson, the court was within its authority

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to give less weight to these characteristics than it gave to the new criminal conduct

and “breach of trust” that led to her supervised release being revoked. The district

court did not abuse its discretion in doing so. Nor, as Ms. Johnson suggests, did the

court err in referring to only the § 3553(a) factors that supported the 24-month

sentence. “[N]othing . . . requires the district court to state on the record that it has

explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Ms. Johnson’s

sentence is procedurally reasonable.

      The sentence is also substantively reasonable. First, although the sentence is

14 months above the maximum suggested by the guidelines, it is 12 months below the

statutory maximum. See 18 U.S.C. § 3583(e)(3) (authorizing a prison term of up to

3 years for class B felonies). The court could have varied upward even more but—

consistent with the §3553(a) directive to “impose a sentence sufficient, but not greater

than necessary”—decided to give Ms. Johnson the lowest sentence it found would

“deter[] future . . . misconduct.” Second, Ms. Johnson did not contest that, in

violation of the terms of her supervised release, she misled her probation officer about

her address, her contact with a felon, and the status of her monthly restitution

payments. Ms. Johnson also did not contest that she moved without informing her

probation officer, failed to pay restitution, and committed new criminal conduct. At

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the hearing, the district court learned that Ms. Johnson’s new criminal conduct

included being in possession of seven fraudulent driver’s licenses bearing her picture

but other people’s names and license numbers. It also included suspicious monetary

transactions very much like those leading to her original conviction. Based on what

it heard, the court found that Ms. Johnson had gotten involved with “a serious type

of criminal affair.” Weighing that damaging evidence along with the favorable

information Ms. Johnson presented, the court decided that an above-guidelines

sentence was most appropriate. We conclude, given the totality of the circumstances,

that the 24-month sentence was reasonable.

                                         II.

      Ms. Johnson also argues that the district court violated her due process rights

by interrupting her counsel during his mitigation arguments and by failing to consider

those arguments. We disagree. It is of course true that “[d]efendants involved in

revocation proceedings are entitled to certain minimal due process requirements,”

United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994), among them “an

opportunity to make a statement and present any information in mitigation,” United

States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008) (quotation marks omitted). But

the record reveals that the district court gave both Ms. Johnson and her counsel ample

time to present their case. When the court addressed Ms. Johnson’s counsel—who in

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the name of mitigation was attempting to disprove the truth of the alleged supervised

release violations—it was merely trying to clarify whether Ms. Johnson had changed

her mind about contesting violations that she had earlier agreed not to contest.

Questioning counsel to clear up confusion is not a due-process violation.

Furthermore, the court’s comments demonstrate that it heard and considered the

mitigation arguments. It just found them unpersuasive. This was not error.

                                        III.

      Ms. Johnson’s 24-month sentence is affirmed.

      AFFIRMED.




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