[DO NOT PUBLISH]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 14 
2

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 unreasonable. 

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). On November 10, 2011, Howard completed 

his prison term and began supervised release.

On February 13, 2012, Defendant 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 offenses 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 residence while their two sons 

were present. 

Case: 12-14734 Date Filed: 04/16/2013 Page: 2 of 14 
3

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 history category at the time of 

his original offense was VI, his recommended imprisonment range was 51 to 63 

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 place 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 aggravated assault carries up to 20 years. The three misdemeanors . . . 

each carry[ ] up to 12 months.”

The 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 14 
4

According to their testimony, Defendant Howard hit his wife in the face and head, 

scratched 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, however, defense counsel elicited testimony about 

inconsistencies in Mrs. Howard’s version of events. For example, although the 

two officers testified that, on February 6, Mrs. Howard said her husband had 

brandished a knife at her, Mrs. 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 14 
5

after the incident begging her to help him, but that she later realized she needed to 

tell the truth. 

In addition, during 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 Mrs. 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 with 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 best, the 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 14 
6

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. 

After 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 Defendant 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, however, 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, quite 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 14 
7

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 meant 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 in 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 that 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 credibility” 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 14 
8

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 indicted 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” any 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 arises “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 Defendant Howard on appeal because 

Case: 12-14734 Date Filed: 04/16/2013 Page: 8 of 14 
9

Defendant Howard wanted to raise an ineffective assistance of counsel claim 

against her. The district court granted the request, and Howard timely appealed his 

sentence.

II. DISCUSSION

A. Ineffective Assistance of Counsel

Although ordinarily 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 sufficiently develop the 

record. See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (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 establish 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 deficient performance, the defendant must show that his 

counsel’s representation fell below 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 14 
10

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 errors, 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—

the daughter and the attorney at the state bond hearing—that Howard wanted. 

Defense counsel explained that she did not call these two witnesses as a matter of 

strategy because she believed (correctly) that the district court would view these

witnesses’ testimony 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 attorney-client privilege. Therefore, instead 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 14 
11

Defendant Howard has not shown that his counsel’s strategic decision not to call 

these witnesses was objectively unreasonable or that, had these 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 rendered 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 adequate 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 14 
12

(11th Cir. 2008). Our reasonableness review 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 error 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 criminal 

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 sentence for a Class A felony”). Howard’s statutory maximum prison 

term upon revocation was five years. See 18 U.S.C. § 3583(e)(3).

The Supreme Court recently concluded, consistent with this Circuit’s 

longstanding precedent, that the district court “has authority 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 impose 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 14 
13

federal sentence be consecutive to an 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 (11th 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 would 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, despite not having this information, courts routinely weigh the 

§ 3553(a) factors to produce reasonable sentences set to run consecutive to 

possible state sentences. 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 indication 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 14 
14

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 sentence for the same underlying 

criminal conduct.

AFFIRMED.

Case: 12-14734 Date Filed: 04/16/2013 Page: 14 of 14