USA v. Keith Whittingham

Filing

Opinion issued by court as to Appellant Keith Whittingham. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-11781

Date Filed: 11/27/2013

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11781
Non-Argument Calendar
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D.C. Docket No. 1:99-cr-00272-FAM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH WHITTINGHAM,
a.k.a. Dennis Delary Brown,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 27, 2013)
Before WILSON, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:

Case: 13-11781

Date Filed: 11/27/2013

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Keith Whittingham appeals his 24-month sentence, imposed after the court
determined that he had violated the terms of his supervised release.
After a conviction for illegal re-entry into the United States in violation of 8
U.S.C. § 1326(a), Whittingham was sentenced on January 6, 2000, to a term of
incarceration of 120 months and three years of supervised release. On December
7, 2010, during his supervised release term, Whittingham was arrested for
aggravated battery on an elderly person, a charge of which he was later acquitted in
state court. He spent two years in county jail before the commencement of his trial
on December 11, 2012. The state court entered a judgment of acquittal on
December 12, 2012.
On December 27, 2010, the United States Probation Office filed a petition
for a warrant for the defendant’s arrest based on Whittingham’s violation of the
condition of his supervised release that he refrain from violation of the law. After
a supervised release violation hearing on March 14, 2013, the district court ruled
on April 16, 2013, that the defendant violated his supervised release. The district
court sentenced Whittingham to 24 months in federal prison without crediting him
for time served in state custody.
On appeal, Whittingham argues that the district court erred by refusing to
credit him for time served in state custody prior to his acquittal. Whittingham
relies on U.S.S.G. § 5G1.3 (instructing courts on how to sentence a defendant
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Case: 13-11781

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subject to an undischarged term of imprisonment), and United States v. Descally,
254 F.3d 1328, 1333 (11th Cir. 2001) (vacating the defendant’s sentence because
the district court had failed to apply U.S.S.G. § 5G1.3, cmt. n.2, in order to account
for time served in state custody for a related crime). He also briefly mentions 18
U.S.C. § 3585 as support.
A district court may revoke a defendant’s supervised release upon finding by
a preponderance of the evidence that the defendant violated a condition of
supervised release. 18 U.S.C. § 3583(e)(3). We review a federal sentence
imposed upon revocation of supervised release for reasonableness. United States
v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir. 2006) (per curiam). In reviewing
reasonableness, “[w]e look first at whether the district court committed any
significant procedural error and then at whether the sentence is substantively
reasonable under the totality of the circumstances.” United States v. Tome, 611
F.3d 1371, 1378 (11th Cir. 2010). And a prisoner seeking reduction of his
sentence pursuant to 18 U.S.C. § 3585(b) must exhaust administrative remedies
before petitioning for judicial review under 28 U.S.C. § 2241. United States v.
Williams, 425 F.3d 987, 990 (11th Cir. 2005) (per curiam).
Whittingham challenges his sentence only for procedural unreasonableness,
specifically for the failure to reduce his sentence for time served pursuant to §
5G1.3. The applicable sentencing guideline, however, is U.S.S.G. § 7B1.4.
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U.S.S.G. § 7B1.3(b) (“In the case of a revocation of . . . supervised release, the
applicable range of imprisonment is that set forth in § 7B1.4.”). Whittingham’s
reliance on § 5G1.3 is misplaced because it applies to defendants who have
undischarged terms of imprisonment, U.S.S.G. § 5G1.3, and he had no
undischarged term of imprisonment. Whittingham’s Grade A violation and his
criminal history category of VI give him a 33–41 month range of imprisonment.
U.S.S.G. § 7B1.4. Because the statutory maximum for a supervised release
violation is two years where, as here, the offense that resulted in the term of
supervised release is a class C felony, 18 U.S.C. § 3583(e)(3), the term of
imprisonment imposed by the district court is appropriate and reasonable.
In addition, we dismiss the § 3585(b) issue for lack of ripeness because
Whittingham has not exhausted his administrative remedies. Williams, 425 F.3d at
990.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.

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