           Case: 19-12115   Date Filed: 03/17/2020   Page: 1 of 9



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12115
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:18-cr-20355-UU-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

SHANE R. SPIERDOWIS,


                                                         Defendant-Appellant.

                      ________________________

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

                            (March 17, 2020)

Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
               Case: 19-12115       Date Filed: 03/17/2020   Page: 2 of 9



      Shane Spierdowis appeals the substantive reasonableness of his 18-month

sentence—an upward variance from his Sentencing Guidelines range of three to

nine months—imposed upon revocation of his probation. After careful review, we

conclude that Spierdowis failed to show that the district court abused its discretion

at sentencing. We therefore affirm.

                                         I.

      Spierdowis pled guilty to conspiracy to commit securities fraud, in violation

of 18 U.S.C. § 371. The district court sentenced him to five years of probation. As

a special condition of probation, the court ordered that Spierdowis serve the first

six months of the term in monitored home confinement. The court also imposed

certain employment restrictions.

      Less than four months after sentencing, Spierdowis’s probation officer filed

a violation report alleging that Spierdowis had violated five conditions of his

probation—namely, he lied to the probation officer about his employment status,

used approved work hours for unauthorized activities, and stayed out well past his

8:30 P.M. curfew on four occasions. On one occasion, he missed his curfew by

five hours. The probation officer recommended that the court revoke Spierdowis’s

probation. Spierdowis waived a preliminary hearing and elected to proceed

directly to a revocation hearing.




                                              2
                  Case: 19-12115       Date Filed: 03/17/2020        Page: 3 of 9



      Before the revocation hearing, Spierdowis wrote a letter to the court in

which he admitted that, during his probation, he had “struggl[ed] immensely

financially, but most importantly, mentally and emotionally.” Doc. 44-1 at 1. 1 He

stated that he “started turning to alcohol to try to mask [his] personal issues,”

including his “depression and anxiety.” Id. He further emphasized that he was

working toward building a health and fitness company and was considering getting

a commercial driver’s license. He wrote that he had never been in trouble before

and intended this to be his “last experience with the court system.” Id. at 2.

Finally, he apologized for his actions, which were “a result of [his] mental

condition.” Id. at 3.

      At the revocation hearing, the district court initially stated that it “g[a]ve

[Spierdowis] a chance” by putting him on probation, but he had “done virtually

nothing to comply” with the conditions of his probation. Doc. 58 at 3. Spierdowis

admitted to violating the terms of his probation. He explained that, during his

probation, he could not find a job and had no support, although his father helped

him pay his bills. He said he was trying to go to school and find a job. He referred

to the letter he wrote to the court, which explained his mental condition.




      1
          “Doc. #” refers to the numbered entry on the district court’s docket.


                                                 3
                 Case: 19-12115         Date Filed: 03/17/2020        Page: 4 of 9



       The probation officer recommended a sentence at the high end of the

guidelines range.2 He explained that the probation office had been “very, very

patient with [Spierdowis],” but he believed that Spierdowis would not “be

amenable to any further supervision.” Id. at 5–6. Spierdowis then personally

apologized to the court, saying that it “ha[d]n’t been easy” for him to comply with

the terms of his probation, as he “started turning to alcohol” and his “whole career

changed.” Id. at 6. He said that he was “doing the best [he] [could] to really turn

[his] life around and start a new career.” Id. Finally, he argued that putting him in

jail would not “benefit anybody.” Id. at 7.

       After hearing the parties’ arguments, the district court commented that it had

“absolutely no reason to believe a word [Spierdowis] just said.” Id. at 8. Noting



       2
          Neither the parties nor the court explicitly mentioned Spierdowis’s guidelines range for
the revocation of probation. Nevertheless, we may ascertain from the record that his
recommended guidelines range was three to nine months. Specifically, under U.S.S.G. § 7B1.4,
the guidelines range for a revocation sentence is three to nine months for a defendant who
commits a Grade C violation and whose criminal history category was I at the time he was
originally sentenced to probation. U.S.S.G. § 7B1.4(a). Spierdowis committed a Grade C
violation when he violated the terms of his probation. See U.S.S.G. § 7B1.1(a)(3) (defining
Grade C violations as those punishable by a term of imprisonment of one year or less or
“violation[s] of any other condition of supervision”). Further, the presentence investigation
report prepared by the probation office before Spierdowis’s original sentencing stated that his
criminal history category was I. Accordingly, Spierdowis’s guidelines range for revocation of
his probation was three to nine months. Spierdowis does not challenge on appeal the court’s
failure to calculate the guidelines range or, more generally, the procedural reasonableness of his
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007) (explaining that a sentence is
procedurally unreasonable if a district court commits an error “such as failing to calculate . . . the
Guidelines range”); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(recognizing that an issue not briefed on appeal is deemed abandoned). Further, both parties
agree that the guidelines range for revocation of Spierdowis’s probation was nine months’
imprisonment at the high end.
                                                  4
              Case: 19-12115     Date Filed: 03/17/2020   Page: 5 of 9



that it had “carefully considered the statements of the parties and the information

contained in the violation report,” the court “determined that a sentence above the

guideline range [was] appropriate” and sentenced Spierdowis to 18 months’

imprisonment. Id. Spierdowis objected, arguing that the 18-month sentence,

which was “double” the high end of the guidelines range, was unreasonable given

his personal characteristics and the circumstances of the probation violations. Id.

at 9. The court responded that Spierdowis had “many advantages,” it “gave him a

very big break,” and yet he “violated [the terms of his probation] time and time and

time and time again.” Id.

      This is Spierdowis’s appeal.

                                         II.

      We review sentences imposed for violations of the terms of probation for

reasonableness, analyzed under an abuse of discretion standard. See United States

v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). The party

challenging a sentence bears the burden of showing that the sentence is

unreasonable. United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir.

2015).

      Although we afford district courts substantial deference in their sentencing

decisions, they must abide by certain parameters at sentencing. Id. When a

defendant violates a condition of his probation, a district court may revoke the


                                          5
               Case: 19-12115     Date Filed: 03/17/2020     Page: 6 of 9



sentence of probation and resentence the defendant. See 18 U.S.C. § 3565(a). In

considering whether to revoke probation and deciding an appropriate sentence, the

district court must consider the factors set forth in 18 U.S.C. § 3553(a). See id.

Those factors include the nature of the offense, the defendant’s history and

characteristics, the need for deterrence and public protection, the defendant’s

educational and vocational needs, and the applicable guidelines range and pertinent

policy statements of the Sentencing Commission. See 18 U.S.C. § 3553(a). A

district court abuses its discretion when it “(1) fails to afford consideration to

relevant 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.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (internal quotation marks omitted).

      “This Court will defer to the district court’s judgment regarding the weight

to be given to the § 3553(a) factors unless the district court has made a clear error

of judgment.” United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014)

(internal quotation marks omitted). We will vacate a sentence only when 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.”

Irey, 612 F.3d at 1190 (quoting U.S. v. Pugh, 515 F.3d 1179, 1191 (2008)).


                                           6
               Case: 19-12115    Date Filed: 03/17/2020    Page: 7 of 9



                                         III.

      Spierdowis argues that the district court imposed a substantively

unreasonable sentence when it sentenced him to 18 months of imprisonment,

which was double the high end of the guidelines range. He asserts that the court

failed to afford appropriate weight to his mental health issues, substance abuse, and

efforts to start a new career. He argues that a sentence at the low end of the

Guidelines would have reflected the seriousness of the violations and provided just

punishment.

      The record does not support Spierdowis’s contention that the district court

improperly weighed the relevant § 3553(a) factors in varying upward from the

applicable guidelines range. The district court’s stated reasons were sufficient to

justify its upward variance. See Dougherty, 754 F.3d at 1363. At the revocation

hearing, the court “carefully considered” Spierdowis’s personal history by hearing

testimony and argument about his mental health issues, substance abuse, and

employment struggles. Doc. 58 at 8. The court heard testimony about

Spierdowis’s letter, which explained “mentally where he was at” when he violated

the terms of his probation. Id. at 5. The court also considered the characteristics of

the offense. The court heard argument from the government that Spierdowis’s

behavior during probation demonstrated that he was not “amenable to any further

supervision.” Id. at 6. The court noted that Spierdowis had “done virtually


                                          7
               Case: 19-12115      Date Filed: 03/17/2020    Page: 8 of 9



nothing to comply” with his probation conditions and that he violated the

conditions “time and time again.” Id. at 3, 9. It was not an abuse of discretion for

the court to afford significant weight to the characteristics of Spierdowis’s

violations, particularly where he committed numerous violations within a short

span of time. We are not convinced that the 18-month sentence lies “outside the

range of reasonable sentences dictated by the facts of the case.” See Irey, 612 F.3d

at 1190 (internal quotation marks omitted).

      Spierdowis further contends that the court’s failure to explicitly mention the

§ 3553(a) factors demonstrates that the court “failed to afford consideration to

relevant factors that were due significant weight.” Appellant’s Br. at 12. Although

it is true that the court did not explicitly refer to the § 3553(a) factors during

sentencing, the court expressly acknowledged that it had “carefully considered” the

parties’ arguments regarding the sentencing factors. Doc. 58 at 8. Because the

record contained the parties’ arguments about the relevant § 3553(a) factors, and

the court stated that it had considered those arguments, we are satisfied that the

court adequately considered the factors. See United States v. Dorman, 488 F.3d

936, 938 (11th Cir. 2007) (determining that the district court need not state on the

record that it has explicitly considered each of the § 3553(a) factors or discuss

them all individually, so long as the record indicates that it considered the party’s

arguments and the sentencing factors). Thus, our review of the revocation hearing


                                            8
               Case: 19-12115    Date Filed: 03/17/2020    Page: 9 of 9



leaves us with no definite conviction that the district court committed a clear error

of judgment in weighing the § 3553(a) factors. See Irey, 612 F.3d at 1190.

Regardless of whether we would have imposed the same term of incarceration had

we been tasked with sentencing Spierdowis, we cannot say that the district court

abused its discretion in imposing a sentence of 18 months.

                                         IV.

      Spierdowis failed to meet his burden of showing that his sentence was

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

      AFFIRMED.




                                          9
