USA v. Ferrell Butler

Filing

Opinion issued by court as to Appellant Ferrell Butler. 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.

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Date Filed: 05/04/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14867
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-00172-WS-B-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERRELL BUTLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(May 4, 2017)
Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Ferrell Butler appeals his 36-month sentence, imposed for violating
conditions of his supervised release, and argues his sentence is procedurally and
substantively unreasonable. Butler was originally sentenced to a term of
imprisonment and four years’ supervised release after pleading guilty to possession
with intent to distribute 18.3 grams of crack cocaine, a Class B felony at the time
of his sentencing. While on supervised release, Butler sold or directed the sale of
controlled substances. When police officers searched a house where Butler was
present, they found drugs prepackaged for sale, bullets in the kitchen, and a loaded
firearm in the trunk of a car to which Butler had the only key. Further, the search
revealed that although Butler owned and lived in the house, he never notified his
probation officer that he changed residences.
We review the sentence imposed upon the revocation of supervised release
for reasonableness under a deferential abuse of discretion standard. United States
v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014); Gall v. United States, 552
U.S. 38, 41 (2007). However, we review for plain error when a defendant fails to
object to the procedural reasonableness of a sentence imposed by a district court at
the time of sentencing. Vandergrift, 754 F.3d at 1307. Prevailing on plain error
review requires the plain error to affect substantial rights, or seriously affect the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Olano, 507 U.S. 725, 732 (1993). One must also show a reasonable probability of
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a different result in the outcome of one’s case. United States v. Rodriguez, 398
F.3d 1291, 1299 (11th Cir. 2005).
Pursuant to 18 U.S.C. § 3583(e), upon finding that the defendant violated a
condition of supervised release, a district court may revoke the term of supervised
release and impose a term of imprisonment after considering specific factors set
forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(e)(3). Those factors include:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need to deter criminal conduct; (3) the need to protect the
public; (4) the need to provide the defendant with medical care or other
correctional treatment; (5) the applicable guideline range; (6) the pertinent policy
statements of the Sentencing Commission; (7) the need to avoid unwarranted
sentencing disparities; and (8) the need to provide restitution to victims. Id.; 18
U.S.C. § 3553(a)(1), (a)(2)(B)–(D), and (a)(4) – (7).
We employ a two-step process in reviewing the reasonableness of a
sentence. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We look
first at whether the district court committed any significant procedural error.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We then determine
the substantive reasonableness of the sentence under the totality of the
circumstances. Id. The party challenging the sentence holds the burden of

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demonstrating the sentence’s unreasonableness in light of the record and the
sentencing factors. Id.
In analyzing a sentence for significant procedural error, we examine factors
such as whether the district court incorrectly calculated the guideline range, failed
to consider the § 3553(a) factors, selected a sentence based on clearly erroneous
facts, or inadequately explained the chosen sentence. Gall, 552 U.S. at 51.
Nonetheless, where the record makes clear that the sentencing judge considered the
evidence and arguments for imposing a sentence outside the guideline range, even
a briefly worded statement of reasons for imposing a sentence is legally sufficient.
Rita v. United States, 551 U.S. 338, 359 (2007). Moreover, nothing requires the
court to state that it explicitly discussed each of the § 3553(a) factors, and the
sentence may be upheld as reasonable when the record indicates that the court
considered a number of the sentencing factors. United States v. Dorman, 488 F.3d
936, 944 (11th Cir. 2007).
The weight accorded to any given § 3553(a) factor is committed to the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). However, a district court abuses its discretion when it (1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors. United States v. Irey, 612 F.3d
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1160, 1189 (11th Cir. 2010) (en banc). Furthermore, a district court’s unjustified
reliance on any one § 3553(a) factor to the detriment of all the others may indicate
an unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.
2006).
When the underlying felony is a Class B felony, the term of imprisonment
imposed upon revocation of supervised release shall not exceed three years. 18
U.S.C. § 3583(e)(3).
Butler failed to demonstrate the procedural or substantive unreasonableness
of his sentence. As an initial matter, Butler did not object to the procedural
reasonableness of his sentence at the revocation hearing. Thus, we review the
issue for reviewed for plain error. See Vandergrift, 754 F.3d at 1307.
The court did not plainly err as to the procedural reasonableness of Butler’s
sentence. First, although the court did not calculate Butler’s guideline range,
Butler failed to show a reasonable probability that he would have received a
sentence below the statutory maximum had the court not erred; thus, the error did
not affect his substantial rights. See Rodriguez, 398 F.3d at 1299; Gall, 552 U.S. at
51. When imposing Butler’s sentence, the court expressed its clear intent to
sentence Butler to the highest sentence permitted by statute, which it stated was
appropriate in this case. The court explicitly stated that, unlike a sentence at the

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statutory maximum, a sentence within the guidelines would not be sufficient to
satisfy the statutory purposes of sentencing.
Moreover, the record indicates that the district court adequately explained
the chosen sentence and considered a number of the § 3553(a) factors, including
the serious nature of the offense, the need for the sentence to deter future criminal
conduct and protect the public given Butler’s poor performance on supervised
release, Butler’s history and characteristics, and the inadequacy of a guideline
sentence. See 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(C), and (a)(4); Dorman, 488 F.3d
at 944.
Additionally, Butler failed to demonstrate the substantive unreasonableness
of his sentence. As discussed above, the record shows that the court weighed a
number of the § 3553(a) factors before imposing Butler’s sentence, and it was
within the court’s discretion to accord more weight to certain sentencing factors.
See Clay, 483 F.3d at 743. As Butler failed to demonstrate that the court
improperly weighed the sentencing factors, committed a clear error of judgment, or
unjustly relied on one factor to the detriment of all the others, he failed to show
that the court abused its discretion in imposing the 36-month sentence. See Irey,
612 F.3d at 1189; Crisp, 454 F.3d at 1292. Accordingly, we affirm.
AFFIRMED.

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