[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12152

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

THEODORE LEE DUGGAN, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:10-cr-20682-FAM-1

____________________

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2 Opinion of the Court 21-12152

Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

Theodore Duggan appeals his sentence of 12 months and 

one day imprisonment followed by 24 months of supervised 

release, which was imposed upon his second revocation of 

supervised release. He raises two issues on appeal. First, he argues 

that the district court plainly erred by imposing a 24-month term 

of supervised release because this exceeded the maximum term 

authorized by statute after accounting for his terms of 

imprisonment for the revocations. Second, he argues that his 

sentence is substantively unreasonable. We conclude that the 

district court plainly erred in imposing a 24-month term of 

supervised release, and that the sentence is not substantively 

unreasonable. Accordingly, we affirm his sentence in part, vacate 

in part, and remand.

I. Background 

In 2010, Duggan pleaded guilty to one count of bank 

robbery, in violation of 18 U.S.C. § 2113(a), and was sentenced to 

120 months’ imprisonment followed by 36 months of supervised 

release. The terms of Duggan’s supervised release prohibited him

from using controlled substances and required him to submit to 

drug tests. Duggan was also ordered to pay $3,597 in restitution. 

Duggan began supervised release in July 2020. In October 

and November 2020, his probation officer reported several 

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21-12152 Opinion of the Court 3

violations, including his failure to pay restitution and testing 

positive for cocaine on five urine tests. Duggan admitted to these 

violations and the district court revoked his supervised release and 

sentenced Duggan to 60 days’ imprisonment followed by 24 

months of supervised release. 

Duggan began supervised release again in January 2021. In 

March and April of 2021, his probation officer reported several new 

violations, including his continued failure to pay restitution, an 

additional five positive urine tests for cocaine, one positive test for 

alcohol, and failure to work regularly in a lawful occupation. The 

probation officer’s subsequent Report and Recommendation 

(“R&R”) stated that Duggan’s violations qualified as Grade C 

violations, for which the Court could revoke supervised release or 

modify its conditions. See U.S.S.G. § 7B1.1(a)(3); Id. § 7B1.3(a)(2). 

Duggan’s guideline imprisonment range was 8 to 14 months’

imprisonment. See Id. § 7B1.4(a). 

At the revocation hearing, Duggan admitted to the asserted

violations. The probation officer recommended a sentence of 12 

months’ imprisonment with no supervised release. The 

government requested eight months’ imprisonment with no 

supervised release, arguing that Duggan’s violations appeared to 

be the result of drug addiction, rather than “one-off” instances. 

Duggan requested a “bottom or lower” sentence and furlough to 

provide him time to sublease his apartment, pointing out that he 

had already served 120 months, and that, as a drug addict, more 

time in the system would not change his addiction. Duggan and 

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the district court engaged in a lengthy conversation regarding his 

history of drug abuse, his past offenses, and his family. Duggan 

identified several mitigating circumstances, including his 

admission of his supervised release violations, his desire to send 

money to his son for graduate school, the deficiency of his 

treatment program—he received only two minutes of online 

individual treatment at his weekly court ordered group session 

drug treatment program—and the fact that he had achieved stable 

housing and was trying to “stay clean.” The district court noted

Duggan’s lengthy drug history, including his past drug offenses, his 

previous abscondment from a conditional release drug treatment 

program, and his misconduct while in prison. The probation 

officer noted that Duggan also withdrew from a drug treatment 

program in prison. 

The district court stated that, even though it would be 

justified in imposing an above-guideline sentence under 18 U.S.C. 

§ 3553(a) based on Duggan’s prior record, it would not because 

Duggan admitted to his supervised release violations. The court 

also acknowledged Duggan’s drug addiction but noted that he had 

been referred to treatment programs several times. The court 

sentenced Duggan to 12 months’ and 1 day to be followed by 24 

months’ supervised release. The court also recommended drug 

treatment in prison and upon release. Duggan did not object to his 

sentence. 

Duggan timely appealed. 

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II. Discussion 

A. Whether the district court plainly erred in imposing a 

term of 24 months’ supervised release 

Duggan argues that the district court plainly erred when it 

sentenced him to 24 months of supervised release because that

term exceeded the maximum amount of supervised release that is 

allowed under 18 U.S.C. § 3583(h). The government agrees that 

plain error occurred.1 

When “a defendant raises a sentencing argument for the first 

time on appeal, we review for plain error.” United States v. 

Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). We may reverse if: 

(1) there was an error; (2) that error was plain; (3) that error affects 

the defendant’s substantial rights; (4) and that error seriously affects 

the fairness, integrity, or public reputation of judicial proceedings. 

United States v. Innocent, 977 F.3d 1077, 1081 (11th Cir. 2020). “An 

error is plain if it is clear or obvious,” meaning that the explicit 

language of a statute, rule, or precedent from the Supreme Court 

or our Court directly resolves the issue. Id. (quotation omitted). 

For an error to affect substantial rights, it must have been 

prejudicial, meaning that “[i]t must have affected the outcome of 

the district court proceedings.” United States v. Olano, 507 U.S. 

1 “Although we are not required to accept the government's concession . . . 

we agree with [Duggan] and the government that the district court plainly 

erred in imposing a term of supervised release here.” United States v. Moore, 

_F.4th_, *4 n.4 (11th Cir. 2022).

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725, 734 (1993). To determine whether plain error in imposition of 

supervised release affects the defendant’s substantial rights, “we 

must decide whether the term of supervised release that the district 

court imposed exceeds that permissible under the applicable 

statute.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 

2003). Duggan has demonstrated all four prerequisites here.

First, there was an error and that error was plain. Bank 

robbery under 18 U.S.C. § 2113(a) carries a maximum term of three 

years of supervised release. See 18 U.S.C. §§ 2113(a), 3559(a)(3), 

§ 3583(b)(2). If a district court revokes a term of supervised release 

and then imposes a term of imprisonment, it may also require the 

defendant to serve a term of supervised release after that 

imprisonment. See 18 U.S.C. § 3583(h). However, “[t]he length of 

such a term of supervised release shall not exceed the term of 

supervised release authorized by statute for the offense that 

resulted in the original term of supervised release, less any term of 

imprisonment that was imposed upon revocation of supervised 

release.” Id. (emphasis added). However, after multiple 

revocations, § 3583(h) requires that the statutory maximum term 

of supervised release “be reduced by the aggregate length of any 

terms of imprisonment that have been imposed upon revocation.” 

United States v. Mazarky, 499 F.3d 1246, 1250 (11th Cir. 2007).

The statutory maximum term of Duggan’s supervised 

release is 36 months under the statute, reduced by any amount of 

time Duggan is imprisoned for violating the terms of his release. 

See 18 U.S.C. §§ 2113(a), 3559(a)(3), 3583(b)(2) & (h). The district 

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court sentenced Duggan to serve 12 months and 1 day 

imprisonment and Duggan had already served two months 

imprisonment for a prior revocation—resulting in a total term of 

imprisonment of 14 months and 1 day. Therefore, the maximum 

supervised release term that Duggan could be sentenced to for this 

revocation is 22 months less one day. See Moore, _F.4th at *4. 

Accordingly, the district court plainly erred by sentencing Duggan 

to 24 months of supervised release. 

Next, because Duggan would have received a lower 

sentence absent the district court’s plain error, he has also 

demonstrated prejudice. See Olano, 507 U.S. at 734. The error 

affects Duggan’s substantial rights “because it exposed him to an 

unauthorized term of supervised release.” Moore, _F.4th at *5.

Finally, as a plain statutory error, the excessive supervised 

release term undermines the fairness, integrity, or public 

reputation of judicial proceedings. See Rosales Mireles, 138 S. Ct. 

1897, 1908 (2018) (“The risk of unnecessary deprivation of liberty 

particularly undermines the fairness, integrity, or public reputation 

of judicial proceedings in the context of a plain Guidelines error 

because of the role the district court plays in calculating the range 

and the relative ease of correcting the error.”); Moore, _F.4th at *5.

Accordingly, we vacate Duggan’s term of supervised release 

and remand for the district court to resentence him to serve no 

more than 22 months less one day of supervised release consistent 

with this opinion.

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B. Whether the district court sentenced Duggan to a 

substantively reasonable term of imprisonment 

Duggan challenges his one year and one day sentence of 

imprisonment, arguing that it is substantively unreasonable under 

18 U.S.C § 3353(a)(1) because of Duggan’s drug addiction and 

inability to obtain sufficient treatment after he was sentenced 

originally because of the restraints of the pandemic. 

“We generally review a district court’s revocation of 

supervised release for an abuse of discretion. We review the 

sentence imposed upon the revocation of supervised release for 

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

1248, 1252 (11th Cir. 2008) (citation omitted). A defendant’s 

argument for a specific sentence preserves for appeal his claim that 

a longer sentence is substantively unreasonable. HolguinHernandez v. United States, 140 S. Ct. 762, 766 (2020).

When examining the substantive reasonableness of a 

sentence, we consider the totality of the circumstances and the 

18 U.S.C. § 3553(a) factors. United States v. Trailer, 827 F.3d 933, 

936 (11th Cir. 2016). After considering certain factors in § 3553(a), 

the district court may revoke a defendant’s supervised release if the 

court finds by a preponderance of the evidence that the defendant 

violated a condition of his supervised release. 18 U.S.C. § 

3583(e)(3). These factors include: (1) the nature and circumstances 

of the offense and the defendant’s history and characteristics; (2) 

the need for the sentence to deter criminal conduct, protect the 

public from the defendant’s further crimes, and provide the 

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defendant with needed educational or vocational training, medical 

care, or other correctional treatment; (3) the sentencing guidelines 

range; (4) any pertinent policy statement; (5) the need to avoid 

unwarranted sentence disparities among similarly situated 

defendants; and (6) the need to provide restitution to victims of the 

offense. See 18 U.S.C. §§ 3553(a) and 3583(e). “[T]he weight to be 

accorded any given § 3553(a) factor is a matter committed to the 

sound discretion of the district court, and we will not substitute our 

judgment in weighing the relevant factors.” United States v. 

Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013) (quotation omitted). 

The defendant bears the burden to establish that his

sentence is unreasonable considering the record and the § 3553(a) 

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

2010). We will vacate 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.” Trailer, 827 F.3d at 936 (quotation omitted). 

Here, Duggan’s sentence is substantively reasonable. The 

district court engaged in a lengthy colloquy with Duggan—

spanning more than half of the sentencing transcript—about his 

drug addiction, experiences with treatment programs, mitigating 

factors, and criminal history. Additionally, the district court 

explicitly indicated that it considered the § 3553(a) factors in its 

decision. The district court did not abuse its broad discretion by

choosing to place more weight on Duggan’s criminal history and 

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the need for deterrence, as the district court was entitled to do so. 

See Kuhlman, 711 F.3d at 1327. The prison term of one year and 

one day is also less than the maximum term of two years

imprisonment, an indicator of reasonableness. See 18 U.S.C. 

§3583(e)(3); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th 

Cir. 2008) (explaining that a sentence below the statutory 

maximum indicates reasonableness). Accordingly, we affirm 

Duggan’s sentence of imprisonment. 

AFFIRMED IN PART, VACATED IN PART, AND 

REMANDED.

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