FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 10, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12845

Non-Argument Calendar

________________________

D. C. Docket No. 03-00004-CR-CDL-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KIMBERLY RENEE ROBERTS,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(October 10, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
Kimberly Renee Roberts appeals her 14-month sentence, which included a

four-month variance over the applicable guideline range, upon revocation of

supervised release. Roberts’s sentence was procedurally reasonable because the

district court addressed her arguments and gave specific reasons in open court for

the sentence. As to substantive reasonableness, considering the totality of the

circumstances and the extent of the variance, a sentence of 14 months of

imprisonment was not an abuse of the district court’s discretion. Accordingly, we

AFFIRM Roberts’s sentence.

I. BACKGROUND

The present appeal concerns the second revocation of Roberts’s supervised

release, but it is necessary to start with some background about her underlying

conviction and previous revocation to place the issue on appeal into its proper

context. In 2003, Roberts pled guilty to aiding and abetting the theft of

approximately $4,880 from a bank that was insured by the Federal Deposit

Insurance Corporation, in violation of 18 U.S.C. § 2113(a). R1-30, 39. The

probation officer calculated a total offense level of 19 and a criminal history

category of II. R1-38. Roberts admitted to using crack cocaine before she was

arrested. R1-30 at 12. The district court sentenced Roberts to 27 months of

imprisonment and 3 years of supervised release. R1-38. The district court also

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ordered Roberts to pay $4,880 in restitution for her offense. Id. During Roberts’s

incarceration, she was required to participate in a drug treatment program. Id. Her

supervised release began in 2005.

In August 2006, the district court revoked Roberts’s supervised release

based on the following violations of her conditions of release: (1) possessing

and/or using a controlled substance ; (2) failing to submit required written monthly

reports; (3) failing to attend substance abuse counseling sessions; and

(4) defaulting on her restitution payments. R1-63. The district court sentenced

Roberts to 10 months of imprisonment. Id. at 2. Roberts’s supervised release

recommenced on 8 June 2007.

At issue in the present appeal is the government’s 2008 petition to revoke

Roberts’s supervised release. The government alleged that Roberts violated the

conditions of her supervised release by: (1) failing to submit a written monthly

report; (2) failing to report to her probation officer as directed; (3) associating with

persons involved in criminal activity; (4) failing to submit to urinalysis testing; and

(5) failing to participate in an approved substance abuse treatment program. R1-

80. At the revocation hearing, the district court found that Roberts committed the

first, second, fourth, and fifth violations. R2 at 25. With regard to the third

violation, the district court stated that it did not need to determine whether it was

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committed because the other violations provided sufficient grounds to revoke

Roberts’s supervised release. Id. The district court informed Roberts that she and

her attorney could address the court before it announced a sentence.

Roberts, herself, apologized to the court, and then her attorney addressed the

court. Id. at 25-26. Roberts’s attorney asserted that the first and second violations

were technical violations. Id. at 26. Roberts’s attorney argued that the court

should consider the factors in 18 U.S.C. § 3553(a) and hold the issue of

punishment in abeyance. Id. at 26-27. Roberts’s attorney requested that the court

allow Roberts to complete a 12-month residential drug treatment program before

she was sentenced. Id. at 27. Roberts’s attorney argued that if she successfully

completed the program, the court should find that she had been adequately

punished for her violations. Id. The government declined to respond. Id. at 27-28.

The court determined that Roberts had been sentenced to 10 months of

imprisonment the previous time her supervised release was revoked. Id. at 28.

The court stated that it was obvious the last sentence did not get Roberts’s

attention. The court further noted that Roberts showed “complete disregard” for

the court and the probation office by continuing to violate the conditions of her

supervised release. Id. The court opined that in determining Roberts’s sentence, a

“serious consideration” would be Roberts’s disregard for the seriousness of the

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conditions of her supervised release. Id. The court stated it would also consider

the other factors, including the seriousness of the violations. The court stated that

pursuant to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the

guideline range, which was four to ten months of imprisonment for a Grade C

violation, was advisory. Id. at 29. The court found that a sentence within the

advisory range was inadequate for the following reasons: (1) Roberts failed to

adhere to the conditions of supervised release after she had her supervised release

previously revoked; (2) she continued to engage in activity that was contrary to the

law; and (3) the previous sentence of 10 months of imprisonment did not get her

attention and had no deterrent effect on her behavior. Id.

The court sentenced Roberts to the maximum statutory punishment of 14

months of imprisonment. Id. at 30. The court also ordered Roberts to pay the

unpaid balance of her restitution order immediately. The court recommended to

the Bureau of Prisons that Roberts participate in the financial responsibility

program and a drug abuse prevention program. The court addressed Roberts and

told her to use her time in prison to get off drugs so that she would not need to

appear in court again. Id. The court stated that the sentence complied with the

factors in § 3553(a) and adequately addressed the totality of the circumstances. Id.

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at 31. The court asked if there were any objections to the sentence, and there were

none. Id.

II. DISCUSSION

Roberts argues that her sentence was procedurally unreasonable because the

district court did not state its reasons for the sentence in open court in compliance

with 18 U.S.C. § 3553(c). Roberts asserts that we cannot adequately review a

sentence outside the advisory guideline range for substantive reasonableness when

the district court fails to give its reasons for the sentence. Roberts further contends

that the sentence was procedurally unreasonable because the district court

erroneously characterized her violations as serious and contrary to the law.

Roberts also argues that the district court did not consider whether she needed

educational or vocational training or medical care, or whether the sentence

promoted respect for the law. Roberts submits that her sentence was substantively

unreasonable because her sentence did not comply with the factors in § 3553(a).

Roberts asserts that her violations were non-violent, administrative errors and her

sentence was excessive because the district court did not adequately consider

whether a lower sentence would protect society. Roberts contends that her

violations were not the most serious possible, but she received the harshest

sentence possible.

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In response, the government notes that Roberts failed to object to her

sentence and the manner in which it was imposed, but it does not specifically argue

for plain error review. The government argues that Roberts’s repeated violations,

in combination with her history of drug abuse, made her violations serious. The

government asserts that continued drug abuse and disregard of conditions of

supervised release fit a general description of activity that is contrary to the law.

The government contends that Roberts fails to show how her sentence was an

abuse of discretion or a miscarriage of justice.

After Booker, we established a two-part process for district courts to use in

calculating sentences. United States v. McBride, 511 F.3d 1293, 1297 (11th Cir.

2007) (per curiam). First, the district court must consult and correctly calculate the

range recommended by the Sentencing Guidelines. Second, the district court must

fashion a reasonable sentence by considering the factors enumerated in § 3553(a).

Id.

Sentences upon revocation of supervised release are reviewed for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106 (11th Cir. 2006)

(per curiam). The reasonableness of a sentence is reviewed under an abuse-ofdiscretion standard. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008)

(citing Gall v. United States, 552 U.S. __, __, 128 S. Ct. 586, 597 (2007)). Under

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the abuse-of-discretion standard, we will only reverse if the district court made a

clear error of judgement. Id. at 1191. Although the government argues that

Roberts did not contemporaneously object in this case, we need not address

whether plain error applies because even under the abuse-of-discretion standard,

there was no reversible error.

When reviewing for procedural reasonableness, we review to ensure that the

district court (1) properly calculated the guideline range, (2) treated the guidelines

as advisory, (3) considered the § 3553(a) factors, (4) did not select a sentence

based on clearly erroneous facts, and (5) adequately explained the chosen sentence.

Gall, 552 U.S. at __, 128 S. Ct. at 597. Moreover, 18 U.S.C. § 3553(c) requires the

district court to state its reasons for the sentence in open court. Rita v. United

States, 551 U.S.__, __, 127 S. Ct. 2456, 2468 (2007). In complying with

§ 3553(c), “[t]he sentencing judge should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Id. However, the

appropriateness of what to say depends upon the circumstances. Id. Generally,

when sentencing inside the advisory guidelines range, the district court is not

required to state explicitly that it has considered each of the § 3553(a) factors in

open court, or give a lengthy explanation for its sentence. See United States v.

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Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008). However, when a “judge imposes

a sentence outside the Guidelines, the judge will explain why he has done so.” Id.

(internal quotation marks omitted). The district court should consider the extent of

the deviation outside of the guidelines and “ensure that the justification is

sufficiently compelling to support the degree of the variance.” Id. (internal

quotation marks omitted).

We review a sentence for reasonableness in light of the factors listed in 18

U.S.C. § 3553(a). McBride, 511 F.3d at 1296-97. Those factors are the following:

(1) the need to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense; (2)

the need for deterrence; (3) the need to protect the public; (4) the need

to provide the most effective correctional treatment or medical care;

(5) the nature and circumstances of the offense; (6) the history and

characteristics of the defendant; (7) the Sentencing Guidelines range;

and (8) the need to avoid unwanted sentencing disparities.

Id. at 1297 n.1 (citing 18 U.S.C. § 3553(a)). When considering the substantive

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

circumstances and the extent of the variance from the guideline range. Livesay,

525 F.3d at 1091. “[T]he party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005) (per curiam).

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Although Roberts does not dispute the district court’s guideline calculation,

it is discussed to place Roberts’s other arguments into context. Roberts had a

criminal history category of II, and her violations were Grade C violations, which

meant the advisory guideline range was four to ten months of imprisonment.

U.S.S.G. § 7B1.4(a). Roberts’s offense of conviction was 18 U.S.C. § 2113(a),

which is a class C felony because it is punishable by up to 20 years of

imprisonment. 18 U.S.C. §§ 2113(a), 3559(a)(3). Upon revocation of supervised

release, a defendant may not be required to serve more than 2 years in prison if the

offense of conviction was a class C felony. 18 U.S.C. § 3583(e)(3). Since Roberts

served 10 months of imprisonment for her previous revocation of supervised

release, the statutory maximum term of imprisonment she could serve was 14

months of imprisonment. See United States v. Williams, 425 F.3d 987, 989 (11th

Cir. 2005) (per curiam) (holding that statutory maximums apply in the aggregate

for sentences upon revocation of supervised release).

As to Roberts’s procedural arguments, we note that the district court

explained its reasons in compliance with Gall and § 3553(c). Gall, 552 U.S. at __,

128 S. Ct. at 597; 18 U.S.C. § 3553(c). The district court explained that it was

sentencing Roberts outside the advisory guideline range because (1) she failed to

adhere to the conditions of supervised release after her supervised release had been

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previously revoked; (2) she continued to engage in activity that was contrary to the

law; and (3) the previous sentence of 10 months of imprisonment did not get her

attention and had no deterrent effect on her behavior. Furthermore, Roberts is

incorrect that these statements were mischaracterizations of the facts of the case.

Roberts was previously sentenced to 10 months of imprisonment for violating the

conditions of her supervised release, and she committed some of the same

violations again after she was re-released. Specifically, Roberts failed to submit

written monthly reports or participate in a drug treatment program. R1-63, 87. In

addition, Roberts’s failure to submit to drug tests during supervised release was an

unlawful activity. See 18 U.S.C. § 3583(g)(3). Finally, the district court was not

required to state explicitly that it had considered each of the § 3553(a) factors. See

Livesay, 525 F.3d at 1090. Accordingly, the district court provided an adequate

basis for this Court to review the reasonableness of the sentence. Thus, we find

that the sentence was procedurally reasonable.

As to substantive reasonableness, as explained above, Roberts’s supervised

release had been previously revoked and she committed some of the same

violations after she was re-released. Roberts’s repeated drug-related violations

were serious because they showed that Roberts had a lack of respect for the law

and that she was not overcoming her problems with drugs. Although Roberts

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argues that she received the maximum statutory sentence for a Class C violation, a

four-month upward variance does not appear to be an abuse of discretion because

the first sentence of 10 months of imprisonment did not have the desired deterrent

effect on Roberts. Furthermore, it appears that the driving factor was Roberts’s

recidivism, which weighed more heavily for the district court than the need to

protect the public from Roberts. R2 at 28. Consequently, considering the totality

of the circumstances, a sentence of 14 months of imprisonment was not an abuse of

discretion. Furthermore, Roberts has not carried her burden to show that the

sentence was unreasonable. Talley, 431 F.3d at 788.

III. CONCLUSION

Roberts appeals her sentence, including a four-month upward variance, upon

the revocation of her supervised release. For the reasons set out above, we

conclude that Roberts’s sentence was both procedurally and substantively

reasonable. Accordingly, we AFFIRM Roberts’s sentence.

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