[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13527

Non-Argument Calendar

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D.C. Docket No. 1:09-cr-20632-KMM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

NORRIS LUNDY,

a.k.a. Polo, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(May 21, 2018)

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

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Norris Lundy appeals the revocation of his supervised release and his 

subsequent sentence of eight months’ imprisonment and twenty eight months’

supervised release, which the district court ordered after he failed two drug tests in 

violation of the conditions of his supervised release.1

 On appeal, he argues that the 

district court erred in revoking his supervised release by punishing his status as a 

drug addict in violation of the Eighth Amendment. He also argues that his

sentence was unreasonable because the district court failed to consider his 

addiction status and progress in treatment under U.S.S.G. § 7B1.4. After careful 

review, we affirm. 

I.

Generally, we review a district court’s decision to revoke supervised release

for abuse of discretion, and we review the sentence imposed upon revocation for 

reasonableness. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 

2014). However, “[w]hen the appealing party does not clearly state the grounds 

for an objection in the district court, we are limited to reviewing for plain error.” 

United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). At the hearing 

below, Lundy stated that “we’ll object on the basis and note our previous request 

 1 Lundy completed his eight months of imprisonment on March 23, 2018. However, because he 

still has to serve twenty eight months of supervised release, we do not consider his appeal moot. 

See Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998) (“Once the convict’s sentence 

has expired, . . . some concrete and continuing injury other than the now-ended incarceration or 

parole—some ‘collateral consequence’ of the conviction—must exist if the suit is to be 

maintained.”).

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for treatment given the nature of these violations.” Neither the objection itself nor 

the context of the objection in the record provides any clear indication of the 

grounds for the objection; therefore, we are limited to reviewing Lundy’s claims

for plain error. “An appellate court may not correct an error the defendant failed to 

raise in the district court unless there is: (1) error, (2) that is plain, and (3) that 

affects substantial rights and then only if (4) the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” Id. (alterations adopted). 

II.

Under 18 U.S.C. § 3583(e)(3), a district court may revoke a term of 

supervised release and impose a term of imprisonment based upon a preponderance 

of the evidence showing that a defendant has violated a condition of supervised 

release. United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006) (per 

curiam). When a defendant possesses a controlled substance in violation of the 

conditions of supervised release, revocation and imprisonment are generally 

mandatory, 18 U.S.C. § 3583(g)(1), but when a defendant fails a drug test, the 

district court has discretion to grant the defendant an exception. 18 U.S.C.

§ 3583(d). In determining whether an exception is warranted, the Guidelines 

require that the court consider “the availability of appropriate substance abuse 

programs, or a defendant’s current or past participation in such programs.” 

U.S.S.G. § 7B1.4 cmt. 6. 

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Lundy first argues that the revocation of his sentence violated the Eighth

Amendment because it punished his status as a drug addict, in violation of the 

Supreme Court’s holding in Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 

(1962). In Robinson, the Court struck down a California statute that made the 

“‘status’ of narcotic addiction a criminal offense” for which the offender would be 

“continuously guilty” until he reformed, regardless of whether he actually 

possessed or used illegal drugs. Id. at 666, 82 S. Ct. at 1420. The Court went on to 

hold that “a state law which imprisons a person thus afflicted as a criminal, even 

though he has never touched any narcotic drug within the State or been guilty of 

any irregular behavior there, inflicts a cruel and unusual punishment.” Id. at 667, 

82 S. Ct. at 1420–21. In this case, the district court revoked Lundy’s supervised 

release not because he was an addict, but because he twice tested positive for 

cocaine, which evidenced Lundy’s possession and use of a controlled substance in 

direct violation of the conditions of his supervised release. Punishing these actions 

did not violate the Eighth Amendment. 

Lundy also argues that the district court committed plain error because it 

failed to take into account Lundy’s status as a drug addict and his progress in 

counseling as required by the Guidelines. We find that the district court did not 

plainly err. The court explicitly stated that it considered Lundy’s arguments for 

reinstatement of his supervised release, rejected them, and then based its 

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revocation decision on permissible factors under 18 U.S.C. § 3582. To the extent 

that the court also considered 18 U.S.C. § 3553(a)(2)(A) factors in imposing its

sentence, Lundy has not shown any plain error under current law. See Vandergrift, 

754 F.3d at 1308–09. Lundy admitted on the record that the district court correctly 

calculated his guideline range, and he has not shown that the district court 

committed any plain error in sentencing him to the bottom of that range.

The revocation of Lundy’s supervised release did not violate the Eighth 

Amendment, and the district court did not commit plain error in sentencing Lundy

to eight months’ imprisonment and twenty eight months of additional supervised 

release. 

AFFIRMED.

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