USA v. John Whitehurst

Filing

Opinion issued by court as to Appellant John Whitehurst in 16-11095, 16-11097. 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. [16-11095, 16-11097]

Case: 16-11095

Date Filed: 01/18/2017

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 16-11095 ; 16-11097
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:98-cr-00040-MP-GRJ-1; 1:99-cr-00038-MP-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WHITEHURST,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(January 18, 2017)
Before TJOFLAT, MARCUS and FAY, Circuit Judges.
PER CURIAM:

Case: 16-11095

Date Filed: 01/18/2017

Page: 2 of 5

John Whitehurst appeals his 60-month sentence imposed by the district court
after revocation of his supervised release resulting from a prior armed bank
robbery conviction. On appeal, Whitehurst argues that the district court plainly
erred by finding that home-invasion robbery in Florida is a “crime of violence”
under U.S.S.G. § 7B1.1(a)(1)(A)(i). Whitehurst does not contest that he
committed conduct equivalent to a home-invasion robbery. In Florida, homeinvasion robbery is punishable by a maximum sentence exceeding 20 years’
imprisonment. After review of the record, the parties’ briefs, and the applicable
law, we find that the district court did not plainly err by finding that Whitehurst
committed a Grade A violation.
We review de novo the legality of a sentence imposed pursuant to revocation
of a supervised-release term. United States v. Mazarky, 499 F.3d 1246, 1248 (11th
Cir. 2007). However, if a defendant fails to object to an issue at sentencing, this
Court reviews it for only plain error. United States v. Vandergrift, 754 F.3d 1303,
1307 (11th Cir. 2014). To establish plain error, a defendant must show: “(1) error,
(2) that is plain and (3) that affects substantial rights. If all three conditions are
met, an appellate court may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.
2007) (quotation and citation omitted). Error is plain if it is clear or obvious under
2

Case: 16-11095

Date Filed: 01/18/2017

Page: 3 of 5

existing law. United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777,
123 L. Ed. 2d 508 (1993). Lastly, we may affirm for any reason supported by the
record. United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012).
A district court may revoke a defendant’s supervised-release term and
require the defendant to serve an imprisonment term if it finds, by a preponderance
of evidence, that he violated a condition of his supervised release. 18 U.S.C.
§ 3583(e)(3). “For sentences imposed upon revocation of supervised release, the
recommended sentencing range is based on the classification of the conduct that
resulted in the revocation and the criminal history category applicable at the time”
of the defendant’s original sentencing. United States v. Campbell, 473 F.3d 1345,
1348-49 (11th Cir. 2007) (citing U.S.S.G. §§ 7B1.1, 7B1.4). A “Grade A”
violation occurs where the violation includes (A) conduct consisting of a federal,
state, or local offense punishable by more than one year in prison that is a “crime
of violence” or (B) “any other federal, state, or local offense punishable by a term
of imprisonment exceeding” 20 years. U.S.S.G. § 7B1.1(a)(1). Importantly, “[t]he
grade of violation does not depend upon the conduct that is the subject of criminal
charges or of which the defendant is convicted in a criminal proceeding Rather,
the grade of violation is to be based on the defendant’s actual conduct.” U.S.S.G.
§ 7B1.1. comment n.1.

3

Case: 16-11095

Date Filed: 01/18/2017

Page: 4 of 5

A “home-invasion robbery” is “any robbery that occurs when the offender
enters a dwelling with the intent to commit a robbery, and does commit a robbery
of the occupants therein.” Fla. Stat. § 812.135(1). If the offender carries a firearm
or other deadly weapon during the home-invasion robbery, the offense is a felony
punishable by a maximum of life imprisonment. Id. § 812.135(2)(a).
Distinct from determining sentencing enhancements under the Armed Career
Criminal Act, 18 U.S.C. § 924(e), or the career offender guideline, when grading a
violation under Chapter 7 of the Sentencing Guidelines, a district court considers
the conduct, rather than the conviction. U.S.S.G. § 7B1.1 comment n.1. Here, it is
undisputed that Whitehurst committed conduct consistent with a home-invasion
robbery. A home-invasion robbery is punishable by life imprisonment. Fla. Stat. §
812.135(2)(a). Accordingly, the district court did not plainly err by finding that
Whitehurst committed a Grade A violation of his supervised release.
Lastly, Whitehurst’s argument that this Court may not affirm on the basis of
U.S.S.G. § 7B1.1(a)(1)(B) because he was not on notice that the district court
could make a finding on that alternative ground is unpersuasive. Section
7B1.1(a)(1)(B)’s presence in the Sentencing Guidelines undercuts his argument.
Whitehurst’s counsel’s failure to discover and address this provision does not
deprive this Court of its ability to affirm the district court’s findings for any
reasons supported by the record.
4

Case: 16-11095

Date Filed: 01/18/2017

AFFIRMED.

5

Page: 5 of 5