           Case: 12-14734   Date Filed: 04/16/2013   Page: 1 of 14




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-14734
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 3:02-cr-00012-CAR-2

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

SHERWIN HOWARD,
a.k.a. Weezer,
a.k.a. Sug,

                                                          Defendant-Appellant.

                       ________________________

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

                             (April 16, 2013)


Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Sherwin Howard appeals his 60-month sentence imposed upon revocation of

his supervised release. On appeal, Howard argues that his counsel during the

revocation proceedings was ineffective and that his sentence is unreasonable.

After review, we affirm.

                                   I. BACKGROUND

A.    Petition for Revocation of Supervised Release

      In 2002, Defendant Howard pled guilty to unlawful possession with intent to

distribute crack cocaine and was sentenced to 170 months in prison, followed by 5

years of supervised release. Later, Howard’s sentence was reduced to 120 months,

pursuant to 18 U.S.C. § 3582(c)(2). On November 10, 2011, Howard completed

his prison term and began supervised release.

      On February 13, 2012, Defendant Howard’s probation officer petitioned the

district court for a warrant to arrest Howard and to revoke his supervised release.

The petition charged that Howard had violated the terms of his supervised release

by, on February 6, 2012, committing the offenses of aggravated assault, battery,

cruelty to children, and criminal trespass-damage to property. According to the

probation officer’s revocation report, these offenses occurred when Defendant

Howard physically attacked his wife at their shared residence while their two sons

were present.



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      The district court issued an arrest warrant, which was executed by the U.S.

Marshals on February 14, 2012. The revocation report stated that, because Howard

had committed a Grade A violation and his criminal history category at the time of

his original offense was VI, his recommended imprisonment range was 51 to 63

months, under U.S.S.G. § 7B1.4. Howard did not object to these calculations.

B.    Revocation Hearing

      At the outset of the revocation hearing, the government asked to place on the

record a plea offer Defendant Howard had rejected. The prosecutor stated that if

Howard admitted to the battery and cruelty to children offenses, the federal

prosecutor agreed to not make a sentencing recommendation at the revocation

hearing and the assistant district attorney handling Howard’s parallel state case

agreed to let the state sentence run concurrent to the federal sentence. The

prosecutor advised the court that Howard’s “case at the state level remains viable.”

Although the prosecutor did not know the penalties for the state offenses, he

assumed they would be substantially higher than the five-year sentence Howard

faced in federal court. Defense counsel responded, “just for the record, on the state

case, the aggravated assault carries up to 20 years. The three misdemeanors . . .

each carry[ ] up to 12 months.”

      The district court heard testimony from the victim, Gavrila Howard, and the

two police officers who responded at her residence on February 6, 2012.


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According to their testimony, Defendant Howard hit his wife in the face and head,

scratched her neck with an eyebrow shaper (a plastic implement with a small razor

at the end), slammed her head into the wall, creating a hole in the drywall, and

threw her to the floor, where he stomped and kicked her. Two children were in the

home, and their twelve-year-old son saw his father hit his mother’s head on the

wall and stomp on her head. As a result of the attack, Mrs. Howard had bruises on

her neck and arm, knots on her head and a cut on her throat and was treated at the

emergency room. Mrs. Howard also reported that on a previous occasion,

Defendant Howard punched her and broke several of her ribs. The government

also submitted the eye-witness statements given to the police and police

photographs of Mrs. Howard’s injuries and damage to the wall and a bedroom door

of her residence.

      During the hearing, however, defense counsel elicited testimony about

inconsistencies in Mrs. Howard’s version of events. For example, although the

two officers testified that, on February 6, Mrs. Howard said her husband had

brandished a knife at her, Mrs. Howard testified at the hearing that she did not say

anything about a knife. Furthermore, Mrs. Howard admitted visiting her husband’s

probation officer the morning after the attack and denying that it had happened.

Mrs. Howard explained that she did this because her husband called her repeatedly




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after the incident begging her to help him, but that she later realized she needed to

tell the truth.

       In addition, during cross-examination, defense counsel asked Mrs. Howard

whether she had appeared at her husband’s state bond hearing and denied the

attack. In response, Mrs. Howard stated that she did not remember saying that. As

a result, defense counsel made a factual proffer that Defendant Howard’s attorney

at the state bond hearing could testify that Mrs. Howard advised the state court that

Defendant Howard did not attack her. Defense counsel explained that, while she

did not want to call the state attorney because she was concerned about waiving

attorney-client privilege, Defendant Howard disagreed with her and had “issues

with the fact that [she] didn’t call [his state] lawyer.” The district court responded

that he understood the “circumstances relating to [Mrs. Howard’s] credibility in

this case quite well.” The district court indicated that, at best, the state attorney’s

testimony (i.e., that Mrs. Howard had previously said her husband did not attack

her) would be cumulative of Mrs. Howard’s own testimony.

       After the close of the evidence, defense counsel argued,

              Basically what this all boils down to . . . is if the Court believes
       Miss Howard and the various variations of what she claims has
       happened to her, one of the things that we see is that she escalates it
       and then she says it didn’t happen and then she says it did and then
       she says it didn’t, all the while Mr. Howard maintains it did not
       happen. I would . . . suggest to the Court that that’s not enough
       evidence standing on its own to find Mr. Howard guilty of violating
       his supervised release.
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      After defense counsel’s argument, Defendant Howard asked to speak and

told the district court that his defense counsel “won’t tell you what I want her to

tell you.” Defense counsel explained that Defendant Howard wanted to tell the

court about defense counsel’s deficiencies in representing Howard.

      After Defendant Howard was advised of the risks of testifying and placed

under oath, Defendant Howard stated that, despite his request, defense counsel had

not subpoenaed witnesses, including the attorney at Defendant Howard’s state

bond hearing. The district court then asked Defendant Howard whether he had any

witnesses who were present “when this incident allegedly happened,” and

Defendant Howard indicated he wanted to call his daughter, who picked him up

after he left the family residence. Defendant Howard admitted, however, that his

wife and two sons were the only other people in the home at the time and his

daughter did not see what happened.

      Defense counsel explained that, although Howard’s daughter was waiting in

the hallway, defense counsel had made “a tactical decision” not to call the two

witnesses Howard requested, as follows:

            There is ample evidence that Miss Howard made varying
      statements to people and told people that Mr. Howard had not hit her,
      and I felt that that evidence was cumulative and, quite frankly, not
      going to be helpful to [Defendant Howard’s] case given Miss
      Howard’s position in all of this.

           In addition to that, Your Honor, as I expressed earlier when I
      made the proffer as to Miss Howard being at the bond hearing, again,

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      that evidence went to Miss Howard has made statements that this did
      not happen.

The district court responded, “Well, you’ve been in my Court long enough to know

that I don’t like cumulative evidence.” The district court then explained to

Defendant Howard what was meant by cumulative evidence, that it was excludable

under Federal Rule of Evidence 403, and that defense counsel had decided not to

call his daughter because defense counsel thought it was going to be cumulative.

Defendant Howard indicated that he understood. The district court further stated

that it would accept defense counsel’s factual proffer—that the attorney at the state

bond hearing would say that Mrs. Howard denied any attack to the state court—“as

evidence in this case,” but that “the best witness in terms of statements that are

inconsistent is your wife over there who has said over and over again, yeah, that’s

what she told [the probation officer].”

      The district court found that the testimony of the two officers and Mrs.

Howard was credible and that Defendant Howard committed the four alleged

offenses. With respect to Mrs. Howard’s credibility, the district court found that

she did on more than one occasion contradict herself about what happened, but that

this did not “destroy[ ] her overall credibility” at the hearing.

C.    Sentencing

      At a separate sentencing hearing, Defendant Howard requested a 51-month

sentence, at the low end of the recommended range of 51 to 63 months. The

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government requested (1) a 60-month sentence, the statutory maximum, and (2)

that the sentence run consecutive to any state sentence.

      Defendant Howard objected to a consecutive sentence, arguing that the

district court did not have the authority to impose a consecutive sentence when

Defendant Howard had not yet been indicted in state court and might receive a

sentence for “different behavior and not behavior contemplated as part of this

revocation.” The district court stated that, although there was no state criminal

case number yet, “there ought to be some way to fashion the judgment in this case

so that it’s very clear that this sentence will run consecutive to” any state sentence

based on the same conduct. The government responded, “Your Honor, the only

case that the government is talking about is the one that occurred on February 6,

2012, which is the one the Court heard the testimony about. We are not talking

about anything else that Mr. Howard may have done or may do in the future.”

      The district court then imposed a 60-month sentence, to run consecutive to

any state sentence that arises “based on the conduct on that day . . . . if that turns

out to be a case that’s indicted and tried.” The district court also stated that the

sentence imposed complied with the 18 U.S.C. § 3553(a) factors and adequately

addressed the totality of the circumstances.

      At the conclusion of the hearing, defense counsel requested that the district

court appoint new counsel to represent Defendant Howard on appeal because


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Defendant Howard wanted to raise an ineffective assistance of counsel claim

against her. The district court granted the request, and Howard timely appealed his

sentence.

                                 II. DISCUSSION

A.    Ineffective Assistance of Counsel

      Although ordinarily we do not review ineffective assistance claims on direct

appeal, we address Defendant Howard’s claim because it was raised in the

revocation proceedings, and the district court was able to sufficiently develop the

record. See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (stating

that we will consider an ineffective assistance claim if the record is sufficiently

developed in the district court). Whether a criminal defendant’s counsel was

ineffective is a mixed question of law and fact that we review de novo. Id.

      To establish ineffective assistance of counsel, the defendant must show that

(1) his counsel’s performance was deficient and (2) the deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984). To establish deficient performance, the defendant must show that his

counsel’s representation fell below an objective standard of reasonableness. Id. at

688, 104 S. Ct. at 2064. To do this, the defendant must overcome “a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689, 104 S. Ct. at 2065. Which witnesses, if any,


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to call “is the epitome of a strategic decision, and it is one that we will seldom, if

ever, second guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en

banc). To establish prejudice, the defendant must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068.

        Here, Defendant Howard did not show that his defense counsel’s

representation during the revocation proceedings was deficient or that he suffered

any prejudice as a result of defense counsel’s decision not to call two witnesses—

the daughter and the attorney at the state bond hearing—that Howard wanted.

Defense counsel explained that she did not call these two witnesses as a matter of

strategy because she believed (correctly) that the district court would view these

witnesses’ testimony as cumulative of other evidence of Mrs. Howard’s changing

version of events. In fact, Mrs. Howard admitted she had changed her story.

        With respect to Howard’s lawyer at the state bond hearing, defense counsel

additionally was concerned about attorney-client privilege. Therefore, instead of

calling this witness, defense counsel made a factual proffer of what the state

lawyer would have testified, which the district court accepted. Indeed, in ruling on

the revocation petition, the district court found that on several occasions Mrs.

Howard had denied that her husband attacked her. Under these circumstances,


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Defendant Howard has not shown that his counsel’s strategic decision not to call

these witnesses was objectively unreasonable or that, had these two witnesses

testified, the outcome of his revocation proceeding would have been different.

B.     Reasonableness

       Howard contends that the district court’s decision to run his 60-month

federal sentence consecutive to any as yet unimposed state sentence rendered his

sentence unreasonable.

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

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

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

set forth in 18 U.S.C. § 3553(a).1 The district court must 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.

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

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


       1
          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)).
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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). In reviewing for reasonableness, we first consider 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). 2 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).

       The parties do not dispute that, with a Grade A violation and a criminal

history category of VI, Howard’s recommended guidelines range under advisory

Chapter 7 was 51 to 63 months. See U.S.S.G. § 7B1.4(a)(2) (providing for

increased ranges “[w]here the defendant was on probation or supervised release as

a result of a sentence for a Class A felony”). Howard’s statutory maximum prison

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

       The Supreme Court recently concluded, consistent with this Circuit’s

longstanding precedent, that the district court “has authority to order that the

       2
         We note that Howard does not argue that his 60-month sentence—apart from its
consecutive nature—is unreasonably long. Moreover, it is unclear from Howard’s appeal brief
whether his challenge to the reasonableness of his consecutive federal sentence is procedural or
substantive. To the extent Howard argues the district court lacked authority to impose the
federal sentence consecutive to a future state sentence, he appears to be raising a procedural
error. In any event, Howard has not shown that his consecutive federal sentence is procedurally
or substantively unreasonable.
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federal sentence be consecutive to an anticipated state sentence that has not yet

been imposed.” Setser v. United States, 566 U.S. ___, 132 S. Ct. 1463, 1466

(2012); see also United States v. Andrews, 330 F.3d 1305, 1306-07 (11th Cir.

2003); United States v. Ballard, 6 F.3d 1502, 1507-10 (11th Cir. 1993). Moreover,

in Setser, the Supreme Court concluded that such a consecutive sentence was

reasonable. See Setser, 132 S. Ct. at 1472.

       Howard attempts to distinguish Setser and our precedent, arguing that,

unlike the defendants in those cases, Howard had not yet been indicted for any

state offenses. This argument, however, ignores that the courts in Setser and our

precedent did not know whether the indicted defendant would plea or be found

guilty or what sentence would be imposed, and if so, what its actual duration

would be. Knowing whether the state would indict Howard still would not tell the

district court what the outcome as to guilt would be or what the sentence would be.

Thus, Howard’s case is not materially different from Setser and our precedent. 3

       In any event, despite not having this information, courts routinely weigh the

§ 3553(a) factors to produce reasonable sentences set to run consecutive to

possible state sentences. See, e.g., id.; Andrews, 330 F.3d at 1306-07 (concluding

that district court did not abuse its discretion in imposing a federal sentence

consecutive to a future state sentence). Importantly, the record reflects that the

       3
        There is still no indication that a state prosecution has occurred, much less any state
sentence, based on the conduct alleged in Howard’s revocation petition.
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district court was aware of the maximum state penalties Howard potentially faced

should the state proceed with prosecution for his underlying criminal conduct, and

the district court nevertheless expressed its clear intent to make Howard’s federal

sentence run consecutive to any state sentence he might receive for the same

conduct.

      Under the circumstances of this particular case, we cannot say the district

court abused its discretion when it imposed a 60-month sentence to be served

consecutive to any as yet unimposed state sentence for the same underlying

criminal conduct.

      AFFIRMED.




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