                    Case: 12-12173         Date Filed: 12/06/2012   Page: 1 of 3

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-12173
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 8:08-cr-00242-RAL-EAJ-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

GABRIEL BLAIR STITT,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (December 6, 2012)

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         The District Court revoked Gabriel Stitt’s supervised release on the ground
               Case: 12-12173     Date Filed: 12/06/2012    Page: 2 of 3

that he had engaged in conduct that constituted a felony battery under Florida law,

a “Grade A” violation under the Sentencing Guidelines, U.S.S.G. § 7B1.1(a),

notwithstanding that the State did not charge and convict Stitt of the felony. In

determining the sentence to be imposed, the District Court calculated Stitt’s

guidelines sentence range as calling for incarceration for a term of 33 to 41

months. The statutory maximum term the court could impose was 26 months, see

18 U.S.C. § 3583(e), and the court sentenced Stitt to that maximum term. Stitt

now appeals the revocation of supervised release on the ground that the District

Court lacked constitutional authority to revoke his supervision because he had not

been convicted of the felony battery. Put in his words, “the Federal Government

had no power to enforce a State criminal law against [him] after the State Attorney

of Hillsborough County had determined not to prosecute [him] for felony battery.”

Appellant’s br. at 12.

      Stitt’s problem is that he did not present this argument to the District Court.

Hence, we consider it under the plain error doctrine. See United States v. Nash,

438 F.3d 1302, 1304 (11th Cir. 2006). Under plain error review, we have

discretion to correct an error where it: (1) occurred, (2) was plain, (3) affects

substantial rights, and (4) seriously affects the fairness, integrity or public

reputation of judicial proceedings. United States v. Turner, 474 F.3d 1265, 1276

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(11th Cir. 2007). An error is not plain when no decision from the Supreme Court

or this Court directly resolves the issue in favor of the defendant. United States v.

Humphrey, 164 F.3d 585, 588 (11th Cir. 1999). That is the case here; Stitt cites no

decision holding that supervised release cannot be revoked for criminal conduct

that, in fact, occurred but did not result in a criminal conviction because it was not

charged. In short, there was no error here, much less plain error. To the extent

that Stitt argues that the District Court clearly erred in finding that he engaged in

the conduct cited in the petition to revoke supervised release, his argument is

frivolous; the evidence fully supports the court’s finding.

      AFFIRMED.




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