           Case: 15-13918   Date Filed: 07/13/2016   Page: 1 of 6


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13918
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 3:97-cr-00006-RV-6



UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                  versus

SHERWIN D. KNIGHT,

                                                        Defendant-Appellant.

                      ________________________

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

                             (July 13, 2016)

Before JORDAN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Sherwin Knight appeals his 21-month sentence for revocation of supervised

release. On appeal, he argues that his sentence was procedurally unreasonable

because the district court considered marijuana possession allegations not proven

by a preponderance of the evidence and because he did not receive adequate notice

in the petition for revocation of his fleeing or eluding charge. He also argues that

his sentence is substantively unreasonable.



                                          I.


      We review factual findings made at supervised release hearings for clear

error. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). Pursuant to 18

U.S.C. § 3583(e), upon finding that the defendant violated a condition of

supervised release, a district court may revoke the term of supervised release and

impose a term of imprisonment after considering specific factors set forth in 18

U.S.C. § 3553(a). 18 U.S.C. § 3583(e)(3).

      The government is not required to prove beyond a reasonable doubt that the

defendant committed the alleged crime. See United States v. Sweeting, 437 F.3d

1105, 1107 (11th Cir. 2006). The standard of proof at a revocation of supervised

release hearing is a preponderance of the evidence. Id. The Sentencing

Commission intended to avoid a situation where “[t]he potential unavailability of

information and witnesses necessary for a determination of specific offense

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characteristics or other guideline adjustments could create questions about the

accuracy of factual findings concerning the existence of those factors.” U.S.S.G.

Ch. 7, Pt. A, intro. comment. 3(b). Therefore, “the grade of the violation does not

depend upon the conduct that is the subject of criminal charges . . . . Rather, the

grade of the violation is to be based on the defendant’s actual conduct.” U.S.S.G.

§ 7B1.1, comment. (n.1).

      The court’s finding was not clearly erroneous. The testimony presented by

Kelly indicated that significant amounts of marijuana were in the vehicle and the

bag containing the drugs smelled strongly. Further, Knight appeared nervous and

fled. This evidence, under a preponderance of the evidence standard, was

sufficient for the district court to conclude that Knight had knowledge of the

marijuana.

      Moreover, although Knight repeatedly requested that the court only consider

the fleeing or eluding and resisting arrest violations, the court was not required to

do this. The determination of the appropriate sentence is not based on the specific

charges, but rather, the totality of the defendant’s conduct. See U.S.S.G. § 7B1.1,

comment. (n.1). Thus, the district court was free to consider the marijuana

allegations. Therefore, the district court’s sentence was procedurally reasonable in

this respect, and we affirm.




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                                           II.

      We review objections to the procedural unreasonableness of a sentence for

plain error when not objected to at sentencing. See United States v. Vandergrift,

754 F.3d 1303, 1307 (11th Cir. 2014). We do not, however, review invited error.

United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). Invited error exists

when a party’s statements or actions induce the district court into making an error.

Id. We have applied the doctrine of invited error where a party affirmatively

requested or specifically agreed with the challenged action of the district court.

See, e.g., United States v. Jernigan, 341 F.3d 1273, 1289-90 (11th Cir. 2003)

(concluding that the defendant invited error by affirmatively stipulating to

admission of the evidence challenged on appeal). Merely failing to object to the

district court’s action is not sufficient to trigger the invited error doctrine. United

States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012).


      Knight invited any error by admitting to fleeing or eluding, specifically

asking the court to sentence him on the violation, and not objecting to inadequate

notice. Because Knight requested the court take an action that he now claims was

error, we will not hear the issue on appeal.




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                                         III.


      We review a district court’s sentence for reasonableness under an abuse of

discretion standard. United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir.

2008) (applying the same reasonableness standard to a revocation hearing).

Substantive reasonableness also involves examining whether a sentence meets the

goals of § 3553(a). United States v. Saac, 632 F.3d 1203, 1214 (11th Cir. 2011).

The party who challenges the sentence bears the burden of showing that the

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

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). However, while we do not

presume that a sentence falling within the guideline range is reasonable, we

ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2009).

      The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in § 3553(a), including the need to

reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. 18 U.S.C. § 3583(e); see also 18 U.S.C.

§ 3553(a)(2). In imposing a sentence, the court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, the pertinent policy

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statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. Id.

§ 3553(a)(1), (3)-(7).

      Knight does not demonstrate that his sentence was substantively

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

concern regarding Knight’s criminal history and the circumstances of his arrest.

Knight’s original sentence was for a significant controlled substance offense, and

the violation that supported the revocation of his release involved marijuana.

Considering Knight’s criminal history, the district court did not abuse its discretion

by sentencing him within the applicable guideline range. See 18 U.S.C.

§ 3553(a)(2). Moreover, the district court’s sentence of 21 months represents the

low end of the applicable guideline range of 21 to 27 months, and we would

ordinarily expect such a sentence to be reasonable. See Hunt, 526 F.3d at 746.

Thus, the sentence was substantively reasonable, and we affirm.

      AFFIRMED.




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