           Case: 12-10854   Date Filed: 08/07/2012   Page: 1 of 16




                                                          [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-10854
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:00-cr-00040-WHA-TFM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

REID KELSEY BLACK,

                                                          Defendant-Appellant.

                      ________________________

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

                             (August 7, 2012)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Reid Kelsey Black appeals the district court’s revocation of his supervised

release and imposition of a 24-month prison sentence, pursuant to 18 U.S.C.

§ 3583(e)(3). After review, we affirm.

                                I. BACKGROUND

A.    Conviction and Sentence

      In 2000, Black pled guilty to possession with intent to distribute

methamphetamine (Count 1) and to brandishing a firearm (Count 2). At

sentencing, the district court granted the government’s motion for a downward

departure based on Black’s substantial assistance. As a result of the downward

departure, Black received a 60-month sentence on Count 1, which represented a

91-month reduction from his guidelines range of 151 to 188 months.

      As a result of the mandatory, consecutive sentence in 8 U.S.C.

§ 924(c)(1)(A)(ii), the district court imposed a consecutive 84-month sentence on

Count 2. The district court imposed a total 144-month sentence followed by five

years’ supervised release. As conditions of his supervised release, Black was

required, inter alia, to “work regularly at a lawful occupation unless excused by

the probation officer for schooling, training, or other acceptable reasons” and to

“notify the probation officer at least ten days prior to any change in residence or

employment.”

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B.    Petition for Revocation of Supervised Release

      After serving his 144-month sentence, Black began his term of supervised

release on March 17, 2011. On January 11, 2012, Black’s probation officer filed a

petition alleging that Black had violated the conditions of his supervised release

by: (1) failing to work regularly; and (2) failing to provide notification to the

probation officer prior to changing his employment status.1 According to the

probation officer’s Supervised Release Violation Report (the “Report”), Black had

held jobs with four different employers since beginning supervised release and had

quit each job. At the time the Report was filed, Black was unemployed.

C.    Testimony at the Revocation Hearing

      At a February 2, 2012 revocation hearing, the district court found that

Black’s alleged Grade C violations and his criminal history category of II yielded

a guidelines range of four to ten months and that the statutory maximum was five

years’ imprisonment. Black pled not guilty to the above two violations.

      Probation Officer John Meredith testified that Black obtained his first job at

West Point Foundry, where he worked as a painter from May 23 to August 19,

2011, less than three months. Black did not notify Meredith before he quit the

West Point Foundry job, but later told Meredith he left because of insufficient pay,

      1
          The government later dismissed a third alleged violation of failing to pay restitution.

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inconvenient hours and the danger from chemical exposure. When Meredith told

Black to try to get his job back, Black said he had a second job at Autosport.

Meredith urged Black to return to West Point Foundry because it was steady work

and because Meredith had been informed Black was a good worker.

      Against Meredith’s advice, Black began working at Autosport on September

12 and then quit on September 29, 2011, less than three weeks later. Again, Black

did not notify Meredith in advance. Black’s reason for quitting was the

uncertainty of pay due to working on commission.

      On November 14, 2011, Black began working at Opelika Metal Fabricators.

Black obtained this job through an employment agency. Black quit on December

5, 2011, less than a month later. Black did not tell Meredith before he quit this

job. Black told Meredith he left because he did not like the job and the wages

were low. Black told the employment agency he left because he did not like the

manner in which the manager spoke to him.

      On December 8, 2011, Black began work at Daewon, a car manufacturing

facility, and quit on December 24, 2011, less than three weeks later. Black did not

inform Meredith before he quit this job. Meredith found out that Black was not

working through another probation officer. Black told Meredith he quit because

“he refused to work with illegal Mexicans doing slave labor in an Asian

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sweatshop.” When Meredith reminded Black that steady, lawful employment was

a condition of his release, Black shouted that Meredith “better not threaten [him]

about getting a job,” and that the release conditions were “bullshit.” Black also

said that “if the government could afford to keep him locked up, then take him to

jail.” Meredith testified that he spoke with the employment agency through which

Black gained the Daewon job and learned that Black had given them a two-week

notice that he intended to quit.

      On January 5, 2012, Meredith met with Black in person to discuss the

violations. Meredith told Black that, rather than pursue revocation, he would try a

“graduated sanctions” option that would place Black in a federal halfway house

for six months. Black responded that he would not go to a halfway house. Black

again stated that if the government could afford to house him, it should take him to

jail. After the meeting concluded, Meredith escorted Black out of his office and

into the lobby, where Black’s parents waited. Meredith heard Black tell his

parents that Meredith was “an asshole.”

      Meredith recommended that the district court revoke Black’s supervised

release and sentence him to serve an additional 24 months in prison with no

supervised release to follow. Meredith explained that he did not believe Black

was amenable to supervision due to his conduct while on supervised release and

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his poor record with the Bureau of Prisons (“BOP”). While in BOP custody,

Black was cited for, or disciplined for, threatening bodily harm, refusing to work,

being absent from assignment, assault without serious injury and being insolent to

a staff member. Meredith further testified that his contact with Black had become

increasingly confrontational. Black’s mother told Meredith that Black had no

respect for law enforcement or any authority figure. Meredith recommended a 24-

month sentence because of Black’s refusal to be placed in a halfway house, which

demonstrated he was not amenable to supervision and because Black received a

downward departure at sentencing.

      Dennis Anglin, Black’s supervisor at Daewon, testified that Black worked

on a production machine, which required standing, bending and lifting and that

Black was a good employee. Black gave notice that he would be leaving the job

due to lower back problems.

      Black’s mother, Murriel Black, testified that she and her husband were in

poor health and that Black helped them around their farm. Mrs. Black also

confirmed that Black has a back problem and explained that Black used a tractor

to lift things when working on their farm.

      Black testified that he was a trained and certified automotive collision repair

specialist. Black applied to all the body shops in his area, but could not obtain a

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position with any of them. Black was promoted to supervisor while at West Point

Foundry, but left because of environmental dangers, including chemical exposure,

that higher management refused to address. Black called to tell Meredith he was

leaving West Point Foundry, but Meredith never called him back.

      Black said he worked at Autosport as a subcontractor and left because they

would not offer him a full-time position, which his supervised release required.

Black then worked for Opelika Manufacturing. Black reported to the employment

agency that he was being exposed to chemicals there, and the agency told him not

to go back. Three days later, Black began working at Daewon, but quit because

the work was too physically demanding for his back problems. Black was

diagnosed by BOP doctors with degenerative disc disease and two bulging and

misaligned vertebrae. Black said that he had received an offer to begin working at

a collision center on February 6, 2012, four days after the revocation hearing.

      Black said that Meredith’s instructions to return to his job at Daewon

frustrated him because he felt that Meredith would be happy only if Black worked

at a job that caused him physical pain. Black explained that he becomes frustrated

when someone is condescending and difficult “because they feel like they’re in a

position where they can impose their will and they don’t have to give.” Black felt

that Meredith did not want Black to better himself or rebuild his life financially

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and just wanted Black to get a temporary job. Black admitted that he has “some

anger issues sometimes” and that he was combative with Meredith at the January 5

meeting because he felt Meredith was ignoring Black’s best interests and trying to

hold Black down. When Black was asked whether he would do something

Meredith told him to do even though Black did not want to do it, Black responded,

“I’m going to do the right thing. I’m going to -- I mean if he’s being unreasonable

how can I? But I mean I -- I try to do everything that I’m expected to do.”

D.    District Court’s Ruling

      The district court found Black guilty of both violations and revoked his

supervised release. The district court further found that: (1) Black quit four jobs;

(2) the time between each of the jobs did not constitute engagement in a lawful

occupation; (3) Black did not notify Meredith before quitting any of the four jobs;

(3) Meredith excused Black for not notifying him before quitting the first three

jobs; (4) although Meredith warned Black that he needed to advise his probation

officer, Black left his fourth job at Daewon without notifying Meredith ten days

before the change; and (5) Meredith “had to find out about it from another source

after [Black] had already quit.” The district court rejected Black’s contention that

he complied with his condition to notify Meredith by notifying the employment

agency.

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      With respect to the sentence, Black asked for a term of four months of home

confinement, where he paid for the confinement and attended anger management

classes. The government requested a 24-month sentence.

      The district court stated that Black had proven that he was unwilling to be

supervised and observed that Black’s violations were not technical or inadvertent,

but intentional violations of conditions imposed by the court and that Black “felt

that [he was] the one to decide what was reasonable and what [he] should do and

what [he] shouldn’t do, not the probation officer.” The district court stated to

Black:

             The Court didn’t impose on you conditions that you could decide
      on and come in after you had been charged with violations and after
      blowing up at your probation officer at least twice and then make
      suggestions of other things that you could do. The Court ordered you
      to do that while you were on supervised release. You flagrantly
      disobeyed that.
             One of the things that the Court has to look at is how what
      happens to you affects other people who are on supervised release. And
      if other people can act as you did in this case, come out from under it
      with simply going home and getting a job and going on about it, it
      destroys the whole authority of supervised release.

The district court noted that, although the advisory range was four to ten months,

the sentence could be increased because Black had received a downward departure

at his original sentencing. The district court said it was satisfied the probation

office had “done the best they could with [Black] and [could not] do any more.”

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The district court stated it had considered the factors in 18 U.S.C. § 3553,

“particularly the necessity to promote respect for the conditions of supervision

ordered by the Court, to reflect the seriousness of the defendant’s conduct, and to

provide just punishment, to set an example for others.” The district court imposed

a 24-month sentence, without further supervised release. Black appealed.

                                 II. DISCUSSION

A.    Sufficiency of the Evidence

      A district court may revoke a defendant’s term of supervised release if the

court finds by a preponderance of the evidence that the defendant violated a

condition of his supervised release. 18 U.S.C. § 3583(e)(3); U.S.S.G.

§ 7B1.3(a)(2) (providing that district court may revoke supervised release if court

finds defendant committed a Grade C violation); see also United States v. Trainor,

376 F.3d 1325, 1331 (11th Cir. 2004). We review for abuse of discretion a district

court’s finding that a defendant violated a term of supervised release. United

States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994). Furthermore, we are bound

by the district court’s findings of fact unless they are clearly erroneous. United

States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).

      Here the district court did not abuse its discretion in finding by a

preponderance of the evidence that Black had violated the conditions of his

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supervised release. Probation Officer Meredith testified that he repeatedly warned

Black that he needed to maintain employment as a condition of his supervised

release. Nonetheless, during almost eight months of supervision (May 23, 2011 to

January 11, 2012), Black quit four jobs and worked a total of only about 20 weeks.

Moreover, Black repeatedly quit jobs without giving Meredith the required ten

days’ advance notice, even though Black was able to give two weeks’ notice to his

employment agency. At the revocation hearing, Black admitted that he was

unemployed for periods of up to six weeks and that he did not try to notify

Meredith before quitting three of his four jobs.

      This evidence is sufficient to support a finding by a preponderance of the

evidence that Black failed to work regularly unless excused by his probation

officer and failed to notify his probation officer ten days before changing his

employment. Further, the district court’s fact finding that Black’s violations were

intentional, rather than inadvertent, is not clearly erroneous. Accordingly, the

district court did not abuse its discretion when it revoked Black’s supervised

release.

B.    Reasonableness of Sentence

      Black contends his 24-month sentence is substantively unreasonable. If the

district court finds that the defendant violated a condition of supervised release,

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the court may revoke the term of supervised release and impose a prison term after

considering certain factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C.

§ 3583(e)(3).2 The district court must also consider the policy statements in

Chapter 7 of the Sentencing Guidelines, one of which, U.S.S.G. § 7B1.4, provides

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

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

U.S.S.G. § 7B1.4 states 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).” U.S.S.G. § 7B1.4, cmt. n.4.

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

history category of II, Black’s recommended guidelines range under advisory

Chapter 7 was four to ten months’ imprisonment. See U.S.S.G. § 7B1.4(a).

Because Black 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).3

       2
         Specifically, in a revocation proceeding, the relevant factors the district court must
consider are: (1) the nature and circumstances of the offense and the history and characteristics of
the defendant; (2) the need for the sentence imposed to afford adequate deterrence, protect the
public and provide the defendant with needed educational or vocational training or medical care;
(3) the Sentencing Guidelines range and pertinent policy statements of the Sentencing
Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide
restitution. See 18 U.S.C. § 3583(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),
(a)(4)-(7)).
       3
        Black does not argue that the district court committed any procedural error at the
revocation hearing.

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      We review a sentence imposed upon revocation of supervised release for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.

2006). 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). The party challenging the sentence has the burden to show it is

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

      Black has not shown that his 24-month sentence was substantively

unreasonable. The district court found that Black’s violations were intentional and

flagrant and constituted a refusal to accept the authority of the court and the

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probation officer. As such, the district court believed that Black was not willing to

be supervised. This view is supported by the evidence. When Meredith met with

Black to discuss Black’s repeated failures to comply with his supervised release

conditions, Black was argumentative with Meredith and dismissive of the court’s

conditions of supervised release. Black also rejected Meredith’s proposed

“graduated sanction” of six months in a halfway house, essentially daring the

government to re-imprison him if it could afford it. Then, at his revocation

hearing, Black admitted he would be unable to follow his probation officer’s

instructions if Black deemed those instructions unreasonable.

      In varying upward, the district court cited the need to promote respect for

the conditions of supervised release imposed by the court and to deter others. The

district court also emphasized that a sentence above the advisory range was

warranted given that Black had received a significant downward departure at his

original sentencing. Contrary to Black’s assertion, the district court’s explanation

for the variance is sufficiently compelling to justify the 14-month variance. As the

district court explained, Black’s violations were not merely “technical” because

they were willful and thus tended to undermine the system of supervised release.

Moreover, although Black’s 24-month sentence was above the recommended

range, it was well below the five-year statutory maximum. See United States v.

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Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Black also argues that the district court’s 24-month sentence created an

unwarranted disparity with other defendants in two other cases. However, the

cases Black cites are not published and are not binding precedent. See 11th Cir.

R. 36-2. In any event, to be unwarranted, a disparity must be between similarly

situated defendants with similar records. See United States v. Spoerke, 568 F.3d

1236, 1252 (11th Cir. 2009). Black has not shown that the defendant in either

case he cites was similarly situated. The only similarities to Black are that both

defendants committed Grade C violations and had a criminal history category of

II, which resulted in an advisory guidelines range of 4 to 10 months, and both

defendants received sentences above that range. Beyond that, the nature of the

defendants’ Grade C violations and the circumstances surrounding them were

different. Additionally, the cases Black cites do not require a finding of

unreasonableness here. Rather, they merely demonstrate the broad range of

discretion a district court has in imposing a reasonable sentence.

      Finally, Black points out that he did not commit any new crimes or test

positive for illegal drugs, that he constantly sought work, and that he was a good

worker and helped his elderly parents. The district court considered these

mitigating facts at the revocation hearing and concluded that they were

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outweighed by the willfulness of Black’s violations and his unwillingness to be

supervised. In short, Black asks us to substitute our judgment for the district

court’s and to reweigh the factors on appeal, which is something we do not do.

See United States v. Saac, 632 F.3d 1203, 1214-15 (11th Cir.), cert. denied, 132 S.

Ct. 139 (2011).

      Under the totality of the circumstances, we cannot say the district court’s

decision to vary upward and impose a 24-month sentence was an abuse of

discretion.

      AFFIRMED.




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