[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 14734 Non

- Argument Calendar

________________________ D.C. Docket No. 3:02

- cr - 00012

- CAR

- 2 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus SHERWIN HOWARD , a.k.a. Weezer, a.k.a. Sug , Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Georgia

________________________ (April 16, 2013)

Before HULL, MARTIN and FAY, Circuit Judges. PER CURIAM:

Case: 12-14734 Date Filed: 04/16/2013 Page: 1 of 142 Sherwin Howard appeals his 60

- month sentence imposed upon revocation of his supervised release. On appeal, Howard argues that his counsel during the revocation proceedings was ineffective and that his sentence is u nreasonable. After review, we affirm. I. BACKGROUND A. Petition for Revocation of Supervised Release In 2002, Defendant Howard pled guilty to unlawful possession with intent to distribute crack cocaine and was sentenced to 170 months in prison, followed by 5 years of supervised release. Later, Howard’s sentence was reduced to 120 months, pursuant to 18 U.S.C. § 3582(c)(2). O n November 10, 2011, Howard completed his prison term and began supervised release.
O n February 13 , 2012, Defe ndant Howard’s probation officer petitioned the district court for a warrant to arrest Howard and to revoke his supervised release. The petition charged that Howard had violated the terms of his supervised release by, on February 6, 2012, committing the o ffenses of aggravated assault, battery, cruelty to children, and criminal trespass

- damage to property. According to the probation officer’s revocation report, these offenses occurred when Defendant Howard physically attacked his wife at their shared resid ence while their two sons were present.

Case: 12-14734 Date Filed: 04/16/2013 Page: 2 of 143 The district court issued an arrest warrant, which was executed by the U.S. Marshals on February 14, 2012. The revocation report stated that, because Howard had committed a Grade A violation and his criminal histo ry category at the time of his original offense was VI, his recommended imprisonment range was 51 to 6 3 months, under U.S.S.G. § 7B1.4. Howard did not object to these calculations.
B. Revocation Hearing
At the outset of the revocation hearing, the government asked to p lace on the record a plea offer Defendant Howard had rejected. The prosecutor stated that if Howard admitted to the battery and cruelty to children offenses, the federal prosecutor agreed to not make a sentencing recommendation at the revocation hearing and the assistant district attorney handling Howard’s parallel state case agreed to let the state sentence run concurrent to the federal sentence . The prosecutor advised the court that Howard’s “case at the state level remains viable

. ” Although the prosecutor did not know the penalties for the state offenses, he assumed they would be substantially higher than the five

- year sentence Howard faced in federal court. Defense counsel responded, “just for the record, on the state case, the a ggravated assault carries up to 20 years. The three misdemeanors . . . each carry [ ] up to 12 months.”
T he district court heard testimony from the victim, Gavrila Howard, and the two police officers who responded at her residence on February 6, 2012.

Case: 12-14734 Date Filed: 04/16/2013 Page: 3 of 144 Acc ording to th eir testimony, Defendant Howard hit his wife in the face and head,

s cratched her neck with an eyebrow shaper (a plastic implement with a small razor at the end), slammed her head into the wall, creating a hole in the drywall, and threw her to the floor, where he stomped and kicked her. Two children were in the home, and their twelve

- year - old son saw his father hit his mother’s head on the wall and stomp on her head. As a result of the attack, Mrs. Howard had bruises on her neck and arm, knots on her head and a cut on her throat and was treated at the
emergency room. Mrs. Howard also reported that on a previous occasion, Defendant Howard punched her and broke several of her ribs. The government also submitted the eye - witness statements given to the police and police photographs of Mrs. Howard’s injuries and damage to the wall and a bedroom door of her residence

. During the hearing, howev er, defense counsel elicited testimony about inconsistencies in Mrs. Howard’s version of events. For example, a lthough the two officers testified that , on Febr uary 6, Mrs. Howard said her husband had brandished a knife at her, M rs. Howard testified at the hearing that she did not say anything about a knife. Furthermore, Mrs. Howard admitted visiting her husband’s probation officer the morning after the attack and denying that it had happened. Mrs. Howard explained that she did this because her husband called her repeatedly

Case: 12-14734 Date Filed: 04/16/2013 Page: 4 of 145 after the incident begging her to help him , but that she later realized she needed to tell the truth

. In addition, d uring cross

- examination, defense counsel asked Mrs. Howard whether she had appeared at her husband’s state bond hearing and denied the attack. In response, Mrs. Howard stated that she did not remember saying that. As a result, defense counsel made a factual proffer that Defendant Howard’s attorney at the state bond hearing could testify that M rs. Howard advised the state court that Defendant Howard did not attack her. Defense counsel explained that , while she did not want to call the state attorney because she was concerned about waiving attorney

- client privilege, Defendant Howard disagreed wi th her and had “issues with the fact that [she] didn’t call [ his state] lawyer.” The district court responded that he understood the “circumstances relating to [Mrs. Howard’s] credibility in this case quite well.” The district court indicated that, at be st, th e state attorney’s testimony (i.e., that Mrs. Howard had previously said her husband did not attack her) would be cumulative of Mrs. Howard’s own testimony

. After the close of the evidence, defense counsel argued, Basically what this all boils down to . . . is if the Court believes Miss Howard and the various variations of what she claims has happened to her, one of the things that we see is that she escalates it and then she says it didn’t happen and then she says it did and then she says it didn’t, all the while Mr. Howard maintains it did not happen. I would . . . suggest to the Court that that’s not enough evidence standing on its own to find Mr. Howard guilty of violating his supervised release. Case: 12-14734 Date Filed: 04/16/2013 Page: 5 of 146 After defense counsel’s argument, Defendant Howard asked to speak and told the district court that his defense counsel “won’t tell you what I want her to tell you.” Defense counsel explained that Defendant Howard wanted to tell the court about defense counsel’s deficiencies in representing Howard

. Afte r Defendant Howard was advised of the risks of testifying and placed under oath, Defendant Howard stated that, despite his request, defense counsel had
not subpoenaed witnesses , including the attorney at Defend ant Howard’s state bond hearing. The district court then asked Defendant Howard whether he had any witnesses who were present “when this incident allegedly happened,” and Defendant Howard indicated he wanted to call his daughter, who picked him up after he left the family residence. Defendant Howard admitted, ho wever, that his wife and two sons were the only other people in the home at the time and his daughter did not see what happened

. Defense counsel explained that, although Howard’s daughter was waiting in the hallway, defense counsel had made “a tactical decision” not to call the two witnesses Howard requested , as follows: There is ample evidence that Miss Howard made varying statements to people and told people that Mr. Howard had not hit her, and I felt that that evidence was cumulative and, qu ite frankly, not going to be helpful to [Defendant Howard’s] case given Miss Howard’s position in all of this. In addition to that, Your Honor, as I expressed earlier when I made the proffer as to Miss Howard being at the bond hearing, again, Case: 12-14734 Date Filed: 04/16/2013 Page: 6 of 147 that evidence went to Miss Howard has made statements that this did not happen. The district court responded, “Well, you’ve been in my Court long enough to know that I don’t like cumulative evidence.” The district court then explained to Defendant Howard what was mean t by cumulative evidence , that it was excludable under Federal Rule of Evidence 403 , and that defense counsel had decided not to call his daughter because defense counsel thought it was going to be cumulative. Defendant Howard indicated that he understood . The district court further stated that it would accept defense counsel’s factual proffer

— that the attorney at the state bond hearing would say that Mrs. Howard denied any attack to the state court

— “as evidence in this case,” but that “the best witness i n terms of statements that are inconsistent is your wife over there who has said over and over again, yeah, that’s what she told [the probation officer].” The district court found that the testimony of the two officers and Mrs. Howard was credible and tha t Defendant Howard committed the four alleged offenses. With respect to Mrs. Howard’s credibility, the district court found that she did on more than one occasion contradict herself about what happened, but that this did not “destroy[ ] her overall credib ility” at the hearing. C. Sentencing At a separate sentencing hearing, Defendant Howard requested a 51

- month sentence, at the low end of the recommended range of 51 to 63 months. The

Case: 12-14734 Date Filed: 04/16/2013 Page: 7 of 148 government requested (1) a 60

- month sentence, the statutory maximum , and (2) that the sentence run consecutive to any state sentence. Defendant Howard objected to a consecutive sentence , arguing that the district court did not have the authority to impose a consecutive sentence when Defendant Howard had not yet been indic ted in state court and might receive a sentence for “different behavior and not behavior contemplated as part of this revocation

. ” The district court stated that, although there was no state criminal case number yet, “there ought to be some way to fashion the judgment in this case so that it’s very clear that this sentence will run consecutive to ” a ny state sentence based on the same conduct. The government responded, “Your Honor, the only case that the government is talking about is the one that occurred on February 6, 2012, which is the one the Court heard the testimony about. We are not talking about anything else that Mr. Howard may have done or may do in the future.” The district court then imposed a 60

- month sentence , to run consecutive to
any state sentence that arise s “ based on the conduct on that day

. . . . if that turns out to be a case that’s indicted and tried.” The district court also stated that the sentence imposed complied with the 18 U.S.C. § 3553(a) factors and adequately addressed the totality of the circumstances. At the conclusion of the hearing, defense counsel requested that the district court appoint new counsel to represent Defe ndant Howard on appeal because

Case: 12-14734 Date Filed: 04/16/2013 Page: 8 of 149 Defendant Howard wanted to raise an ineffective assistance of counsel cl aim against her. The district court granted the request, and Howard timely appealed his
sentence. II. DISCUSSION A. Ineffective Assistance of Counsel Although o rdinarily we do not review ineffective assistance claims on direct appeal , we address Defendant Howard ’s claim because it was raised in the revocation proceedings, and the district court was able to sufficient ly develop the record. See United States v. Bender , 290 F.3d 1279, 1 2 8 4 (11th Cir. 200 2 ) (stating that we will consider an ineffective assistance claim if the record is sufficiently developed in the district court)

. Whether a criminal defendant’s counsel was ineffective is a mixed question of law and fact that we review de novo

. Id.
To esta blish ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance was deficient and (2) the deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To establish de ficient performance , the defendant must show that his counsel’s representation fell be low an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 2064. To do this, the defendant must overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S. Ct. at 2065. Which witnesses, if any,

Case: 12-14734 Date Filed: 04/16/2013 Page: 9 of 1410 to call “is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess.” Waters v. Thomas , 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). To establish prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional error s, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. Here, Defendant Howard did not show that his defense counsel’s representation during the revocation proceedings was deficient or that he suffered any prejudice as a result of defense counsel’s decision not to call two witnesses

—
t he daughter and the attorney at the state bond hearing

— that Howard wanted

. D efense counsel explained that she did not call the se two witnesses as a matter of strategy because she believed (correctly) that th e district court would view these witnesses’ tes timony as cumulative of other evidence of Mrs. Howard’s changing version of events. In fact, Mrs. Howard admitted she had changed her story. With respect to Howard’s lawyer at the state bond hearing, defense counsel additionally was concerned about attorn ey - client privilege. Therefore, i nstead of calling this witness , defense counsel made a factual proffer of what the state lawyer would have testified, which the district court accepted. Indeed, in ruling on the revocation petition, the district court found that on several occasions Mrs. Howard had denied that her husband attacked her

. Under these circumstances,

Case: 12-14734 Date Filed: 04/16/2013 Page: 10 of 1411 Defendant Howard has not shown that his counsel’s strategic decision not to call these witnesses was objectively unreasonable or that, had the se two witnesses testified, the outcome of his revocation proceeding would have been different.
B. Reasonableness Howard contends that the district court’s decision to run his 60

- month federal sentence consecutive to any as yet unimposed state sentence re ndered his sentence unreasonable. Pursuant to 18 U.S.C. § 3583(e), upon finding that the defendant violated a condition of supervised release, a district court may revoke a term of supervised release and impose a term of imprisonment after considering the specific factors set forth in 18 U.S.C. § 3553(a). 1 The district court must consider the policy statements in Chapter 7 of the Sentencing Guidelines, one of which, U.S.S.G. § 7B1.4, provides recommended, non

- binding ranges of imprisonment. United States v. Silva , 443 F.3d 795, 799 (11th Cir. 2006); U.S.S.G. § 7B1.4. “We review the sentence imposed upon revocation of supervised release for reasonableness.” United States v. Velasquez Velasquez , 524 F.3d 1248, 1252

1 Specifically, in a revocation proceeding, the relevant factors 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 to afford adequ ate deterrence, protect the public and provide the defendant with needed educational or vocational training or medical care; (3) the Sentencing Guidelines range and pertinent policy statements of the Sentencing Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide restitution. See 18 U.S.C. § 3583(e) (cross

- referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)

- (D), (a)(4)

- (7)). Case: 12-14734 Date Filed: 04/16/2013 Page: 11 of 1412 (11th Cir. 2008). Our reasonableness rev iew applies the deferential abuse of discretion standard. Gall v. United States , 552 U.S. 38, 41, 46, 128 S. Ct. 586, 591, 594 (2007). In reviewing for reasonableness, we first consider whether the district court committed any significant procedural erro r and then whether the sentence is substantively unreasonable in light of the § 3553(a) factors and the totality of the circumstances. United States v. Pugh , 515 F.3d 1179, 1190 (11th Cir. 2008). 2 The party challenging the sentence has the burden to show it is unreasonable in light of the record and the § 3553(a) factors. United States v. Talley , 431 F.3d 784, 788 (11th Cir. 2005). The parties do not dispute that, with a Grade A violation and a cr iminal history category of VI, Howard’s recommended guidelines range under advisory Chapter 7 was 51 to 63 months. See U.S.S.G. § 7B1.4(a)(2) (providing for increased ranges “[w]here the defendant was on probation or supervised release as a result of a se ntence for a Class A felony”). Howard’s statutory maximum prison term upon revocation was five years. See 18 U.S.C. § 358 3 (e)(3). The Supreme Court recently concluded, consistent with this Circuit’s longstanding precedent, that the district court “ has a uthority to order that the

2 We note that Howard does not argue that his 60

- month sentence

— apart from its consecutive nature

— is unreasonably long. Moreover, it is unclear from Howard’s appeal brief whether his challenge to the reasonableness of his consecutive federal sentence is procedural or substantive. To the extent Howard argues the district court lacked authority to imp ose the federal sentence consecutive to a future state sentence, he appears to be raising a procedural error. In any event, Howard has not shown that his consecutive federal sentence is procedurally or substantively unreasonable.

Case: 12-14734 Date Filed: 04/16/2013 Page: 12 of 1413 federal sentence be consecutive to a n anticipated state sentence that has not yet been imposed. ” Setser v. United States , 566 U.S. ___, 132 S. Ct. 1463, 1466 (2012); see also United States v. Andrews , 330 F.3d 1305, 1306

- 07 (11t h Cir. 2003); United States v. Ballard , 6 F.3d 1502, 1507

- 10 (11th Cir. 1993). Moreover, in Setser , the Supreme Court concluded that such a consecutive sentence was reasonable. See Setser , 132 S. Ct. at 1472

. Howard attempts to distinguish Setser and our precedent, arguing that, unlike the defendants in those cases, Howard had not yet been indicted for any state offenses. This argument, however, ignores that the courts in Setser and our precedent did not know whether the indicted defendant would plea or be found guilty or what sentence w ould be imposed, and if so, what its actual duration would be. Knowing whether the state would indict Howard still would not tell the district court what the outcome as to guilt would be or what the sentence would be. Thus, Howard’s case is not materially different from Setser and our precedent. 3 In any event, d espite not having this information, courts routinely weigh the § 3553(a) factors to produce reasonable sentences set to run consecutive to possible state s entences. See , e.g. , id. ; Andrews , 330 F.3d at 1306

- 07 (concluding that district court did not abuse its discretion in imposing a federal sentence consecutive to a future state sentence). Importantly, the record reflects that the

3 There is still no indica tion that a state prosecution has occurred, much less any state sentence, based on the conduct alleged in Howard’s revocation petition.

Case: 12-14734 Date Filed: 04/16/2013 Page: 13 of 1414 district court was aware of the maximum state penalties Howard potentially faced should the state proceed with prosecution for his underlying criminal conduct, and the district court nevertheless expressed its clear intent to make Howard’s federal sentence run consecutive to any state sentence he might receive for the same conduct

. Under the circumstances of this particular case , we cannot say the district court abused its discretion when it imposed a 60

- month sentence to be served consecutive to any as yet unimposed state sentenc e for the same underlying criminal conduct. AFFIRMED. Case: 12-14734 Date Filed: 04/16/2013 Page: 14 of 14