USA v. Darren McCormick
Filing
Opinion issued by court as to Appellant Darren Jenard McCormick. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
Case: 15-13821
Date Filed: 02/26/2016
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13821
Non-Argument Calendar
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D.C. Docket No. 7:06-cr-00013-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARREN JENARD MCCORMICK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
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(February 26, 2016)
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Before JORDAN, JULIE CARNES, and EDMONDSON, Circuit Judges.
PER CURIAM:
Darren McCormick appeals his 24-month sentence imposed upon revocation
of his supervised release. McCormick contends that his above-guidelines sentence
procedurally and substantively is unreasonable. No reversible error has been
shown; we affirm.
In 2007, McCormick pleaded guilty to possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). McCormick was
sentenced to 108 months’ imprisonment (which was later reduced to 78 months)
followed by 5 years’ supervised release. McCormick’s term of supervised release
began in March 2012.
In April 2014, a probation officer petitioned the district court to revoke
McCormick’s supervised release. The petition charged McCormick with 18
violations including, among other things, possession of cocaine and marijuana,
testing positive for marijuana, possession of a firearm by a convicted felon,
obstructing an officer, attempted arson, battery, false imprisonment, criminal
trespass, and theft of an automobile. At the revocation hearing, McCormick
admitted to one violation: possession of cocaine. Based on this violation,
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McCormick was subject to mandatory revocation of his supervised release. See 18
U.S.C. § 3583(g)(1) (mandating revocation of supervised release when a defendant
possesses a controlled substance in violation of the conditions of supervised
release).
The district court calculated the advisory guidelines range of 12 to 18
months’ imprisonment based on McCormick’s original sentencing criminal history
score of I and commission of a Grade A supervision violation. See U.S.S.G. §§
7B1.1(a)(1), 7B1.4(a). The district court then decided to vary up and sentenced
McCormick to 24 months’ imprisonment.
McCormick contends that his sentence is procedurally and substantively
unreasonable because the district court (1) failed to explain adequately the chosen
sentence; (2) gave improper weight to the 18 U.S.C. § 3553(a) factors; and (3)
relied improperly on disputed testimony about McCormick’s lack of cooperation
while on supervised release.
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008). When reviewing for reasonableness, we apply a deferential abuse-ofdiscretion standard. Gall v. United States, 128 S.Ct. 586, 597 (2007) (in the
context of original criminal sentencing). We “must first ensure that the district
court committed no significant procedural error” such as “failing to consider the §
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3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence -- including an explanation for any
deviation from the Guidelines range.” Id.
If a sentence is procedurally sound, we then evaluate whether the sentence is
substantively reasonable in the light of the totality of the circumstances. Id. We
may consider the extent of an upward variance, but “must give due deference to the
district court’s decision that the § 3553(a) factors, on the whole, justify the extent
of the variance.” Id. The party challenging the reasonableness of the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
both the record and the section 3553(a) factors. United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005).
McCormick’s 24-month sentence is both procedurally and substantively
reasonable. The district court calculated properly the advisory guidelines range.
After considering the guidelines range and the Chapter 7 policy statements, the
district court concluded that a guidelines sentence would be “inadequate” and
decided to vary up by six months. The resulting 24-month sentence is well within
the statutory maximum sentence of 3 years. See 18 U.S.C. § 3583(e)(3).
The court explained that an above-guidelines sentence was necessary,
among other things, to afford adequate deterrence and to protect the public from
further crimes committed by McCormick. See 18 U.S.C. § 3553(a)(2)(B), (C). On
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this record, the district court stated sufficient reasons for imposing an upward
variance. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)
(nothing “requires the district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.”).
Some conflict exists on the record about McCormick’s level of cooperation
while on supervised release. At the sentencing hearing, McCormick’s probation
officer testified that McCormick was uncooperative while on supervised release
and failed repeatedly to comply with the probation officer’s instructions. In
response, McCormick denied generally the probation officer’s allegations and
testified that he had attended the classes required of him.
We do not know from the record the extent to which -- if at all -- the district
court relied on the probation officer’s testimony in applying an upward variance.
But even if we assume that the district court considered the probation officer’s
testimony in determining McCormick’s sentence, we see no abuse of discretion.
The district court, as the fact-finder, was in the best position to make a credibility
determination about whose testimony to believe. See United States v. RamirezChilel, 289 F.3d 744, 749 (11th Cir. 2002). Because the probation officer’s
testimony was not “exceedingly improbable” or “unbelievable,” we defer to the
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district court’s decision -- if a decision was made -- to credit the probation officer
over McCormick. See id.
Further, the district court’s stated reasons are supported by the totality of the
circumstances and the section 3553(a) factors. McCormick admitted that, less than
a year and a half after completing his 78-month sentence for possession of cocaine,
he possessed cocaine once again. Under these circumstances, the district court
abused no discretion in determining that an above-guidelines sentence was
necessary both to deter McCormick from committing future crimes and to protect
the public. The weight to be afforded any given section 3553(a) factor “is a matter
committed to the sound discretion of the district court.” United States v. Williams,
526 F.3d 1312, 1322 (11th Cir. 2008).
AFFIRMED.
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