           Case: 18-10941   Date Filed: 11/05/2018   Page: 1 of 8


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10941
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:17-cr-00337-LSC-JHE-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

DEVON SHONDALE RUSSELL,

                                             Defendant - Appellant.

                      ________________________

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

                            (November 5, 2018)

Before MARCUS, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Devon Russell appeals the reasonableness of his 15-year term of supervised

release, imposed after he pled guilty to three counts of distributing heroin in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). After a review of the record and

the parties’ briefs, we affirm.


                                          I

      In September of 2016, Mr. Russell made three sales of a mixture containing

heroin to a confidential informant. Mr. Russell was charged with three counts of

distributing heroin, and in October of 2017, he pled guilty to all three counts

pursuant to a plea agreement. Mr. Russell’s plea reserved the right to challenge a

sentence in excess of the advisory guideline range.


      At the sentencing hearing, the district court concluded that Mr. Russell had a

criminal history category of VI, based on five prior adult convictions for

possession of marijuana. The district court also determined that the advisory

guideline range was 30 to 37 months’ imprisonment, and three years’ supervised

release. The statutory maximum term of supervised release for each charge was

life. See 21 U.S.C. § 841(b)(1)(C).


      The district court heard from both the government and Mr. Russell’s

attorney, and ultimately sentenced Mr. Russell to 37 months of imprisonment, at

the top end of the advisory guideline range, and 15 years of supervised release, in

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excess of the guideline range. At sentencing, the district court stated that it was

“greatly concerned that the high end [of the advisory guideline range for

imprisonment] is insufficient” and that Mr. Russell’s criminal history indicated that

he had “no regard whatsoever for law and our society or the health of those that [he

sold] drugs to.” Doc. 28 at 6. The court also expressed “hope” that Mr. Russell

would not “want to go back to prison because [he] will be an easy target for law

enforcement to identify as being back in the business again.” Id. at 7. At the end of

the hearing, the district court asked both parties whether they objected to the

findings of fact, the calculation of the sentence, or the manner in which the

sentence was pronounced or imposed. Both the government and Mr. Russell’s

attorney answered that they had no objections. Id. at 9.


      On appeal, Mr. Russell argues that the district court plainly erred by

considering retribution, an improper sentencing factor, in determining his term of

supervised release. He also contends that the district court failed to adequately

explain its upward variance from the advisory guideline range. Finally, Mr. Russell

also appears to briefly argue that his 15-year term of supervised release is

substantively unreasonable.




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                                          II

      Using a two-step process, we ordinarily review the reasonableness of a

district court’s sentence for abuse of discretion. United States v. Pugh, 515 F.3d

1179, 1190 (11th Cir. 2008). We first look for significant procedural error, such as

miscalculating the advisory guideline range, treating the advisory guidelines as

mandatory, failing to consider the sentencing factors set forth in 18 U.S.C. §

3553(a), or failing to adequately explain a sentence. See Gall v. United States, 552

U.S. 38, 51 (2007). Thereafter, we review the sentence’s substantive

reasonableness for abuse of discretion, taking into account the totality of the

circumstances and the § 3553(a) factors. See United States v. Trailer, 827 F.3d

933, 936 (11th Cir. 2016).


      Mr. Russell, however, did not object to the procedural reasonableness of his

sentence below, so we review for plain error his argument that his sentence was

procedurally unreasonable. United States v. Vandergrift, 754 F.3d 1303, 1307

(11th Cir. 2014). To prevail under plain-error review, Mr. Russell has to establish

that “(1) the district court erred, (2) that the error was plain, and (3) that the error

affected his substantial rights.” Id. (internal quotation marks omitted).


      We review de novo Mr. Russell’s argument that the district court failed to

adequately explain its variance from the advisory guideline range, even though he


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did not object on this basis below. United States v. Parks, 823 F.3d 990, 996 (11th

Cir. 2016).


                                           III

      In determining the length of a term of supervised release, the district court

must consider certain of the § 3553(a) sentencing factors. See 18 U.S.C. § 3583(c).

In relevant part, the factors that that 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 .
      . . (B) to afford adequate deterrence to criminal conduct; (C) to protect
      the public from further crimes of the defendant; and (D) to provide the
      defendant with needed [training or treatment]; . . . (4) the kinds of
      sentence and the sentencing range established for--(A) the applicable
      category of offense committed by the applicable category of defendant
      as set forth in the guidelines . . . ; and (B) in the case of a violation of
      probation or supervised release, the applicable guidelines or policy
      statements issued by the Sentencing Commission . . . (5) any pertinent
      policy statement—(A) issued by the Sentencing Commission . . .; and
      (B) that . . . is in effect on the date the defendant is sentenced; (6) the
      need to avoid unwarranted sentence disparities among defendants with
      similar records who have been found guilty of similar conduct; and (7)
      the need to provide restitution to any victims of the offense.


18 U.S.C. § 3553(a). Two of the § 3553(a) factors are not listed as factors that the

district court must consider under § 3583(c): the kinds of sentences available and

“the need for the sentence imposed . . . to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense.” 18
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U.S.C. § 3553(a)(2)(A). Indeed, the Supreme Court has instructed that “a court

may not take account of retribution (the first purpose listed in § 3553(a)(2)) when

imposing a term of supervised release.” Tapia v. United States, 564 U.S. 319, 326

(2011).

      Mr. Russell argues that the district court plainly erred by taking account of

retribution in sentencing him to 15 years’ supervised release. In support of this

contention, Mr. Russell points to the following statement of the district court at

sentencing:


      Looking back at your record, it is clear to me that you have no regard
      whatsoever for law and our society or the health of those that you sell
      drugs to. I intend that the probation office will be checking up on you.
      And if you go back into the business of selling drugs or using drugs, I
      will know about it and I will take appropriate action when you get out
      of prison.
D.E. 28 at 6. We disagree with Mr. Russell that this statement demonstrates that

the district court took account of retribution in determining his sentence. The

district court’s comments indicate that its sentencing decision was based on

permissible sentencing factors, including Mr. Russell’s criminal record, the need to

deter him from committing future crimes, and the need to protect the public from

further crimes. Therefore, the district court did not commit plain error in this

regard.




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       Mr. Russell next argues that the district court committed procedural error by

failing to explain his sentence, specifically the upward variance from the advisory

guidelines’ recommendation of three years’ supervised release. The district court

was required to state “in open court” the specific reason for imposing a sentence

outside the applicable guideline range. 18 U.S.C § 3553(c).


       Here, as outlined above, the district court stated that it was imposing the

sentence based on Mr. Russell’s criminal history (“[l]ooking back at your record, it

is clear to me that you have no regard whatsoever for law and our society…”) and

the need for deterrence (“if you go back into the business of selling drugs or using

drugs, I will know about it.”). See D.E. 28 at 6. This explanation is “sufficiently

specific so that an appellate court can engage in the meaningful review envisioned

by the Sentencing Guidelines.” Parks, 823 F.3d at 997 (quoting United States v.

Suarez, 939 F.2d 929, 933 (11th Cir. 1991)). Therefore, the district court did not

err.


       Finally, Mr. Russell also appears to argue that his sentence was substantively

unreasonable because his fifteen-year term of supervised release is well in excess

of the advisory guidelines’ recommendation of three years. When reviewing the

substantive reasonableness of a sentence, we take into account the totality of the

circumstances, including any variance from a relevant guidelines range. See Gall,


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552 U.S. at 51. As noted, our review here is for plain error given that Mr. Russell

did not object below.


      Our review of the record does not show that the district court failed to

consider relevant factors that were due significant weight, gave significant weight

to an improper factor, or committed a clear error of judgment in its consideration

of the proper factors. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.

2010) (en banc). The district court expressed concern that the top end of the

advisory guidelines’ recommended range was insufficient in Mr. Russell’s case

because of his criminal history, and it arrived at a sentence based on the § 3553(a)

factors. Considering the totality of the circumstances, we find no plain error.


                                         IV

      For the foregoing reasons, we affirm Mr. Russell’s term of supervised

release.


      AFFIRMED.




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