         Case: 15-12658   Date Filed: 04/19/2016   Page: 1 of 14


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-12658
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 1:07-cr-00046-CG-C-3



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,


                                versus


HARRY CLINTON CARTER,

                                                      Defendant - Appellant.

                     ________________________

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

                            (April 19, 2016)
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Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Harry Clinton Carter appeals his 24 month sentence, imposed after the

district court revoked his supervised release, pursuant to 18 U.S.C. § 3583(e)(3).

He argues that the district court issued a procedurally and substantively

unreasonable sentence. After a thorough review of the record and the parties’

briefs, we affirm Carter’s sentence.

                                I. BACKGROUND

      Carter pled guilty to one count of possession of crack cocaine with intent to

distribute and was sentenced to 43 months’ imprisonment and three years’

supervised release. The conditions of his supervised release required him to

participate in a drug treatment program, submit to drug tests, refrain from using

controlled substances, and refrain from associating with anyone engaging in

criminal conduct.

      Carter commenced his supervised release in 2011. In March 2012, Carter

tested positive for cocaine and marijuana and admitted to using those drugs. His

probation officer placed him in group counseling as a result. The following

September, Carter was charged with criminal mischief and domestic violence after

getting into an argument with his girlfriend. Consequently, the district court

ordered that Carter submit to electronic location monitoring. One month after that,


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Carter again tested positive for cocaine, and his probation officer placed him in a

residential drug treatment program.

      Unfortunately, Carter continued to struggle with his drug addiction. Around

the end of March 2013, he left the area monitored by his electronic monitoring

device and tested positive for cocaine once more. After Carter waived his right to

a revocation hearing and admitted to having violated the terms of his supervised

release on numerous occasions, the district court revoked his supervised release

and sentenced him to eight months’ imprisonment followed by 28 months’

supervised release.

      After being released, Carter once again tested positive for cocaine in January

2015, but he denied having used any illegal drugs. The district court nevertheless

allowed him to remain on supervised release, and his probation officer referred him

to an outpatient substance abuse treatment program. Carter’s probation officer

warned him that this was his final opportunity to receive substance abuse

treatment.

      The treatment was, regrettably, unsuccessful. In April 2015, Carter tested

positive for cocaine and failed to attend his outpatient treatment sessions. He also

failed to report to, and ignored calls and messages from, his probation officer. The

outpatient substance abuse program eventually discharged him for failing to attend

treatment sessions. Carter’s probation officer reported Carter’s violations to the


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district court and asked the court to revoke his supervised release. Considering the

nature of Carter’s violation and his criminal history, Carter’s Violation Worksheet

calculated a Sentencing Guidelines range of four to 10 months’ imprisonment. The

statutory maximum sentence was 24 months’ imprisonment.

      Carter waived his right to a revocation hearing and admitted to the probation

officer’s allegations. At his sentencing hearing, Carter described how he lost his

job and consequently became unable to afford to pay for his car, housing, or phone.

He explained that he failed to attend his treatment sessions because he was

attempting to find a new job and lacked a means of transportation. He asked for a

sentence within the range established by the Sentencing Guidelines.

      The district court revoked Carter’s supervised release. The court stated that

Carter had exhibited a pattern of supervised release violations and that, despite his

probation officer’s repeated attempts to assist him in treating his addiction, Carter

had failed to complete his drug treatment program and to report to the probation

officer. As a result, the court determined that a sentence within the range indicated

by the “chapter seven provisions” of the Sentencing Guidelines was inappropriate

because Carter was exhibiting the “same conduct” he had exhibited before his

previous revocation. Revocation Hr’g Tr. at 6 (Doc. 278). 1 The district court

sentenced Carter to 24 months’ imprisonment, the statutory maximum. Carter


      1
          “Doc.” refers to the docket entry in the district court record in this case.
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objected that the court’s upward variance was unreasonable and filed a timely

appeal.

                                  II. DISCUSSION

      “Pursuant to 18 U.S.C. § 3583(e), upon finding that a 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 certain factors set

forth in 18 U.S.C. § 3553(a). United States v. Velasquez Velasquez, 524 F.3d

1248, 1252 (11th Cir. 2008). These factors include the nature and circumstances

of the offense, the history and characteristics of the defendant, the need to afford

adequate deterrence to criminal conduct, the need to protect the public from further

crimes, the pertinent policy statements of the Sentencing Commission, the need to

avoid unwarranted sentencing disparities, and the need to provide restitution to

victims. 18 U.S.C. § 3583(e), 3553(a). When the district court determines that a

variance from the guidelines range is appropriate, it must then consider the extent

of the variance and ensure that there is a sufficiently compelling justification for it.

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      Reviewing the reasonableness of a sentence is a two-step process. “We look

first at whether the district court committed any significant procedural error and

then at whether the sentence is substantively reasonable under the totality of the

circumstances.” Id. The party challenging the sentence bears the burden of


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showing it is unreasonable in the light of the record and the relevant factors. Id.

Carter contends that his sentence is both procedurally and substantively

unreasonable. We address these arguments in turn.

   A. Procedural Reasonableness

      “A sentence may be procedurally unreasonable if the district court

improperly calculates the Guidelines range, treats the Guidelines as mandatory

rather than advisory, fails to consider the appropriate statutory factors, selects a

sentence based on clearly erroneous facts, or fails to adequately explain the chosen

sentence.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).

Carter contends that the district court committed two procedural errors. First, he

argues that the district court failed to explain adequately the basis of his sentence.

Second, he argues that the district court failed to calculate or otherwise explicitly

reference the applicable Sentencing Guidelines range during his sentencing

hearing. Neither argument merits relief.

      Carter is correct that a district court must explain its reasons for imposing a

particular sentence. Rita v. United States, 551 U.S. 338, 356 (2007); 18 U.S.C. §

3553(c)(1). This explanation, however, need not be exhaustive. Rather, an

acknowledgement by the court that it has considered the defendant’s arguments

and the factors listed in § 3553(a) will satisfy this requirement. United States v.

Dorman, 488 F.3d 936, 938 (11th Cir. 2007). Moreover, “[t]he district court need


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not state on the record that it has explicitly considered each factor and need not

discuss each factor.” Id. We typically conclude that a district court failed to

adequately explain a sentencing decision only “when the record contain[s] no

evidence that the district court had considered, or the defendant had even raised,

the applicability of any of the § 3553(a) factors.” United States v. Smith, 568 F.3d

923, 928 (11th Cir. 2009). We conduct a de novo review of the sufficiency of a

district court’s explanation of a defendant’s sentence, even if the defendant did not

object before the district judge. United States v. Bonilla, 463 F.3d 1176, 1181

(11th Cir. 2006).

      We are satisfied that the district court’s explanation of its sentencing

decision, although undeniably terse, fulfills this minimal requirement. The court

heard and considered Carter’s arguments for why he should receive a sentence

within the guidelines range. Carter’s counsel explained that Carter’s violations of

his supervised release conditions largely stemmed from his loss of employment

and his consequent inability to make car, rent, or phone payments. Carter himself

expressed remorse and apologized for his conduct.

      Apart from considering Carter’s and his counsel’s presentations, the court

also noted that Carter’s probation officer “did everything [he] could to help

[Carter] get off . . . drugs” and that, while Carter “took advantage of that for a little

while,” he eventually “went off the deep end” and not only “fail[ed] to participate


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with the drug treatment program” but “fell out of contact with probation” as well.

Revocation Hr’g Tr. at 6 (Doc. 278). The court then considered the advisory

sentencing range, referencing the policy statements in the “chapter seven

provisions” of the Sentencing Guidelines, and found the guidelines range

inappropriate because Carter was exhibiting “the same conduct” he had exhibited

when the court revoked his supervised release two years earlier. Id.

       Although the district court never explicitly referenced the § 3553(a) factors,

the record clearly demonstrates that the court weighed them, both in considering

Carter’s arguments and in deciding that a variance was appropriate. Carter’s

failure to attend his treatment program, inability or refusal to remain in contact

with his probation officer, and consistent pattern of non-compliance with the terms

of his supervised release all concern the nature and circumstances of his offenses,

his personal history and characteristics, and the likelihood he would commit

additional violations in the future. In other words, although the district court

“fail[ed] to articulate specifically the applicability . . . of each of the section

3553(a) factors, . . . the record demonstrates that the pertinent factors were taken

into account.” Smith, 568 F.3d at 927. That is all the law requires. See Tome, 611

F.3d at 1378-79 (affirming as sufficient a district court’s explanation that it was

imposing an upward variance based on the defendant’s admission to repeated

violations of his supervised release).


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      We also reject Carter’s second procedural unreasonableness argument, that

the district court failed to calculate any guidelines range. At sentencing, Carter

objected that the district court’s “upward departure from the guideline range [was]

unreasonable.” Revocation Hr’g Tr. at 7 (Doc. 278). This objection failed to

challenge the procedural unreasonableness of Carter’s sentence. As a result, we

review for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th

Cir. 2014). To prevail on plain error review, Carter must demonstrate “(1) that the

district court erred; (2) that the error was plain; and (3) that the error affected his

substantial rights.” Id. (alterations and internal quotation marks omitted). “An

error that affects substantial rights is one that affected the outcome of the district

court proceedings.” United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir.

2005) (internal quotation marks omitted). “If all three conditions are met, [we then

decide whether] the error seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631

(2002) (internal quotation marks omitted).

      “[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38,

49 (2007). Although we have held in several unpublished decisions that a district

court’s failure to state the applicable guidelines range at sentencing constitutes




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procedural error,2 we have never addressed the issue in a published decision.

Thus, even if we assume that there was error here, Carter cannot demonstrate that

the error was plain. 3 See Vandergrift, 754 F.3d at 1309.

       Significantly, even were we to determine that the district court committed

plain error, Carter failed to establish that the error affected his substantial rights or

“the fairness, integrity, or public reputation of judicial proceedings.” Cotton, 535

U.S. at 631 (internal quotation mark omitted). Carter does not argue that the

probation office miscalculated his guidelines range, that he and his counsel were

unaware of the applicable guidelines range, or that the district court was unaware it

was applying a significant upward variance when sentencing him. To the contrary,

it is clear from the record that defense counsel argued for and the court considered

and rejected the applicable guidelines range, even though the court never expressly

stated what the range was. The court stated, “I therefore find that the chapter seven

provisions, which I have considered, are inappropriate because this is the same

conduct that we went through two years ago.” Revocation Hr’g Tr. at 6 (Doc.

278). Indeed, Carter’s counsel asked for “a sentence within the guideline range,”
       2
          See, e.g., United States v. Linkel, No. 15-10083, 2016 WL 384703, at *1 (11th Cir. Feb.
2, 2016); United States v. Cruz, No. 14-15776, slip op. at 3 (11th Cir. Jan. 6, 2016); United
States v. Valera, 622 F. App’x 876, 878-79 (11th Cir. 2015).
       3
         Carter points us to United States v. Campbell, but in that case it was impossible to
discern from the record whether the district court considered the applicable guidelines range.
473 F.3d 1345, 1349 (11th Cir. 2007). Here, in contrast, after defense counsel argued for “a
sentence within the guideline range,” the court stated that it had considered “the chapter seven
provisions” of the Sentencing Guidelines and deemed them inappropriate in Carter’s case.
Revocation Hr’g Tr. at 4, 6 (Doc. 278).
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which further demonstrates that both counsel and the court knew the court was

considering applying a variance. Id. at 4. And given Carter’s history of drug

abuse and repeated non-compliance with the terms of his supervised release, it is

hard to imagine that the resulting sentence would have been any different had the

district court stated the guidelines range on the record. See Henderson, 409 F.3d at

1308. In sum, because Carter has failed to demonstrate the existence of any plain

error that affected his substantial rights or the reputation of the judicial system, his

procedural unreasonableness challenge cannot survive plain error review.

   B. Substantive Reasonableness

      Having determined that the district court’s sentencing decision was

procedurally sound, we next consider the substantive reasonableness of Carter’s

sentence under an abuse of discretion standard. Gall, 552 U.S. at 51. This

standard reflects the due deference we give to district courts because they have an

“institutional advantage in making sentencing determinations.” United States v.

Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010) (internal quotation marks

omitted). Thus, “[w]e may vacate 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.” Id. (internal quotation

marks omitted). That we “might reasonably have concluded that a different


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sentence was appropriate is insufficient to justify reversal.” Gall, 552 U.S. at 51.

Moreover, we may not presume a sentence is unreasonable merely because it is

outside the guidelines range. Id. “[I]t is only the rare sentence that will be

substantively unreasonable.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256

(11th Cir. 2015) (internal quotation marks omitted).

      A district court abuses its discretion and imposes a substantively

unreasonable sentence if it “(1) fails to afford consideration to relevant [§ 3553(a)]

factors that were due significant weight, (2) gives significant weight to an improper

or irrelevant factor, or (3) commits a clear error of judgment in considering the

proper factors.” Id. (internal quotation marks omitted). “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) (internal quotation marks omitted). In imposing an upward variance, the

district court may consider any information relevant to a defendant’s background,

character, and conduct. See Tome, 611 F.3d at 1379.

      Carter contends that his sentence of 24 months’ imprisonment was unduly

harsh and greater than necessary to achieve the purposes for which revocation

sentences are imposed. Although we recognize that Carter’s sentence represented

a significant variance from the guidelines range, we cannot conclude that the

district court committed a clear error of judgment in imposing it.


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      That Carter is attempting to battle his addiction while struggling to find

employment is certainly unfortunate, but it does not change the fact that he has

consistently and repeatedly failed to abide by the terms of his supervised release.

Since commencing his supervised release in 2011, Carter has failed countless drug

tests, been charged with criminal conduct, violated his electronic monitoring

restrictions, failed to attend treatment sessions, and avoided contact with his

probation officer.

      Notably, Carter has been provided multiple opportunities to reform his

behavior. On the several occasions when he violated the terms of his probation, he

was permitted to enter treatment in lieu of revocation. This leniency continued

even after the district court initially revoked Carter’s probation. Indeed, upon

being released for the second time, Carter again violated the terms of his

supervised release by failing a drug test—yet he was granted leniency once more

and allowed to enter treatment instead of returning to prison. But rather than

taking full advantage of the treatment provided to him, he once again reverted back

to the same behavior that previously resulted in his arrest and probation revocation.

      In sum, Carter has exhibited a persistent pattern of violating the terms of his

release and squandering the opportunities afforded him to rehabilitate himself.

Even if, as Carter argues, these violations fail to “set [his conduct] apart from any

other technical violation revocation case,” they are adequate to support his


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sentence. Appellant Br. at 16-17. The Supreme Court has “forbidden us from

requiring extraordinary circumstances to justify” a sentence outside the guidelines

range. Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks omitted).

      In the light of these facts, we cannot conclude that the district court abused

its discretion in deciding that a significant upward variance from the guidelines

range was warranted. “[T]he sentence was within the outer bounds of the district

court’s substantial sentencing discretion—in the ballpark of permissible

outcomes.” Id. at 1257 (internal quotation marks omitted).

                               III. CONCLUSION

      We conclude that Carter has failed to demonstrate that his sentence is

procedurally or substantively unreasonable. We therefore affirm the sentence the

district court imposed.

      AFFIRMED.




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