[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14097

Non-Argument Calendar

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D.C. Docket No. 2:15-cr-00003-LGW-RSB-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

BYRON JAVONNE DELOATCH, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

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(May 12, 2016)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM: 

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In 2011, Byron Deloatch, having pled guilty to one count of mail fraud, 18 

U.S.C. § 1341, and two counts of bank fraud, 18 U.S.C. § 1344(1) and (2), in the 

Eastern District of North Carolina, was sentenced to concurrent prison terms for 30 

months followed by a like term of supervised release. Following his release from 

prison, the supervision of his behavior on supervised release was transferred to the 

Southern District of Georgia. 

In June 2015, the district court, granting Deloatch’s probation officer’s 

petition, issued a warrant for his arrest based on four violations of his supervised 

release: (1) committing the offense of false statements, in violation of 18 U.S.C. § 

1001, by failing to report business-related activities and income on monthly 

supervision reports, a 2015 financial statement, and his 2014 income tax return; (2)

committing the offense of wire fraud, in violation of 18 U.S.C. § 1343, and theft by 

deception, in violation of Ga. Code Ann. § 16-8-3, by making false representations 

in obtaining seasonings and spices on credit from Zenobia Company, a wholesaler 

doing business as My Spice Sage and failing to make payment toward the debt; (3)

incurring new credit charges or opening additional lines of credit without the 

approval of the probation office; and (4) leaving the judicial district without the 

permission of the court or probation officer. Regarding violation (2), the petition 

alleged that Deloatch had falsely represented to Zenobia that he was affiliated with 

celebrity chef Curtis Stone, and that he owned a restaurant and catering business 

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which required exotic spices. The probation officer contended that based on these 

representations, Zenobia agreed to sell and ship Deloatch seasonings and spices on 

credit. The probation officer recommended that Deloatch’s supervised release be 

revoked.

At the revocation hearing that followed, Deloatch admitted violations (3) 

and (4), but denied violations (1) and (2). The district court revoked his supervised 

release and sentenced him to prison for 24 months followed by supervised release 

of 24 months. He appeals the court’s decision, arguing that the court erred in 

finding that he violated the terms of his supervised release by committing the crime 

of theft by deception in violation of Ga. Code Ann. § 16-8-3. 

We review a district court’s revocation of supervised release for an abuse of 

discretion. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). “A 

district court’s finding of fact made at a revocation hearing is binding unless 

clearly erroneous.” United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993) 

(quotation omitted). 

A district court may “revoke a term of supervised release . . . if the court . . . 

finds by a preponderance of the evidence that the defendant violated a condition of 

supervised release . . . .” 18 U.S.C. § 3583(e)(3). Where the district court’s 

decision to revoke a defendant’s supervised release is adequately supported by one 

alleged violation, any possible error in the consideration of other allegations is 

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harmless. See United States v. Brown, 656 F.2d 1204, 1207 (5th Cir. 1981).1 An 

error is harmless if it “had no substantial influence on the outcome and sufficient 

evidence uninfected by error supports the decision.” Rivers v. United States, 777 

F.3d 1306, 1316 (11th Cir.), cert. denied, 136 S. Ct. 267 (2015) (alterations 

omitted) (quotation omitted); see also Fed.R.Crim.P. 52(a) (defining “harmless 

error” as “[a]ny error, defect, irregularity, or variance that does not affect 

substantial rights”). An error is not harmless if “there is a reasonable likelihood 

that [it] affected the defendant’s substantial rights.” Rivers, 777 F.3d at 1316 

(quotation omitted). 

The United States Sentencing Guidelines provide three grades of probation 

and supervised release violations: (1) Grade A violations include felony conduct 

that constitutes a crime of violence, controlled substance offense, certain firearms 

offenses, and any other offense punishable by more than 20 years’ imprisonment; 

(2) Grade B violations include felony conduct not covered under Grade A; and 

(3) Grade C violations include misdemeanor conduct and violations of any other 

condition of supervision. U.S.S.G. § 7B1.1(a). Where there is more than one 

violation, the ultimate grade is determined by the violation having the most serious 

grade. Id. § 7B1.1(b). Upon a finding of a Grade A or B violation, the district 

 1 Eleventh Circuit precedent includes the decisions of the former U.S. Court of Appeals for the 

Fifth Circuit handed down prior to October 1, 1981, the effective date of the division of the Fifth 

Judicial Circuit into the current Fifth Judicial Circuit and the Eleventh Judicial Circuit. See 

Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

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court is required to revoke the defendant’s supervised release. Id. § 7B1.3(a)(1). 

Upon a finding of a Grade C violation, the court may either revoke the defendant’s 

supervised release, or extend the term of, or modify the conditions of, supervised 

release. Id. § 7B1.3(a)(2). Section 7B1.4 provides the applicable guideline range 

for each grade as it corresponds to the defendant’s criminal history category. See

id. § 7B1.4. 

Under Georgia law, “[a] person commits the offense of theft by deception 

when he obtains property by any deceitful means or artful practice with the 

intention of depriving the owner of the property.” Ga. Code Ann. § 16-8-3(a). A 

person deceives if, inter alia, he “creates or confirms another’s impression of an 

existing fact or past event which is false and which the accused knows or believes 

to be false.” Id. § 16-8-3(b)(1). The Georgia Court of Appeals has determined that 

“the gravamen of theft by deception lies in obtaining the property of another by 

intentionally creating a false impression as to an existing fact or past event,” and 

that “[c]reating a false impression as to a future event . . . by a promise of future 

payment, is not sufficient.” Ellerbee v. State, 256 Ga. App. 848, 851 (2002)

(quotation omitted). It determined that: 

[t]he reason for the rule [regarding existing or past events] is that if 

the party to whom the representations was made chose to rely upon 

the promise as to a future contingency, he is not deceived by deceitful 

means or artful practice, but his loss results from his absolute 

confidence in the party making the promise.

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Id. at 853 (alterations in original) (quotation omitted). It held that “any promises, 

reassurances, or representations” made by the defendant that he would make good 

on his checks, “could not as a matter of law constitute theft by deception” because 

“[a] promise of future performance cannot serve as the basis of a theft by deception 

prosecution.” Id. 

The district court’s finding that Deloatch committed theft by deception 

under § 16-8-3, arguably was not supported even by a preponderance of the 

evidence because the government failed to introduce any evidence to show that 

Deloatch created a false impression as to any existing fact or past event in 

obtaining the merchandise from Zenobia. Nonetheless, the court’s error was 

harmless since its decision to revoke Deloatch’s supervised release was premised 

on three other violations, any one of which could independently serve as a basis to 

revoke Deloatch’s supervised release. See Brown, 656 F.2d at 1207. Deloatch 

admitted to committing violations (3) and (4), and the court found that he had 

committed violation (1), which he does not challenge on appeal. Thus, despite any 

error in the court’s finding that he had committed the theft by deception, the court 

had three other violations on which to revoke his supervised release, any one of 

which could properly serve as a basis for revocation, and one of which actually 

required the court to do so. 

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Deloatch’s argument regarding ambiguity in his sentence is without merit. 

Violation (1), alone, resulted in a Guidelines sentence range of 21-27 months’ 

imprisonment, and the court sentenced him within the middle of that range.

Additionally, the court stated that despite the outcome on violation (2), it would 

have imposed the same sentence based on violations (1), (3), and (4). Thus, 

contrary to Deloatch’s assertions, there is no indication that his sentence would 

have been lower, absent a finding that he committed the theft by deception offense. 

Lastly, although he contends that the court’s error in finding that he committed the 

crime of theft by deception affects his substantial rights because it would “likely” 

have a bearing on Zenobia’s civil case against him, he has not cited any case law or 

provided any legal support for that contention. 

The district court’s decision revoking Deloatch’s supervise release is

AFFIRMED.

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