United States of America v. Johnny Albert Roberts Harris

United States Court of Appeals
For the Eighth Circuit
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No. 22-2019
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Johnny Albert Roberts Harris
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: October 17, 2022
Filed: December 22, 2022
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
Johnny Albert Roberts Harris appeals the supervised release revocation
sentence the district court1 imposed when it found, after a hearing, that he had
committed three Grade C violations -- a new law violation, failure to comply with a
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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search condition, and marijuana use. The Grade C violations, together with his
Category II criminal history, resulted in an advisory guidelines revocation range of
4-10 months’ imprisonment. See USSG § 7B1.4(a). The district court sentenced
Harris to eight months’ imprisonment followed by twenty-one months of supervised
release. On appeal, Harris argues the sentence is substantively unreasonable because
ordering imprisonment, rather than extending his mandatory residential reentry
placement, is “simply unreasonable.” Reviewing the substantive reasonableness of
a revocation sentence for abuse of discretion, we affirm. See United States v. Dennis,
35 F.4th 1116, 1118 (8th Cir. 2022) (standard of review).
At the time the district court imposed this sentence, Harris had repeatedly
violated his conditions of supervised release. After serving a 15-month sentence for
conspiracy to distribute a controlled substance, Harris commenced supervised release
in May 2021. In July, the court ordered location monitoring following drug use. In
August, the court required Harris to stay at a residential reentry center for up to ninety
days following his failure to abide by substance abuse testing, failure to appear as
instructed, and failure to provide change of residence information. When Harris then
failed to abide by residential reentry center rules, the court revoked supervised release
in October and sentenced him to five months’ imprisonment.
After supervised release recommenced in February 2022, Harris provided urine
samples that tested positive for marijuana use on March 4, March 11, March 15, April
1, and April 4, 2022. At a hearing on April 1, Harris had tested positive that morning,
but he denied continued use and the test results were not yet confirmed. The district
court ordered placement in a residential reentry center rather than revocation. When
he tested positive again on April 4, the probation office petitioned to revoke, alleging
a new law violation (driving without a license), drug use, and failure to comply with
a search condition. Harris admitted the new law violation but contested the other two.
At the revocation hearing, the government submitted national laboratory drug test
reports confirming positive urine samples and a letter from the laboratory’s Director
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of Toxicology opining that, although the March 15, April 1, and April 4 tests showed
decreasing THC levels, Harris engaged in new or continued drug use between March
15 and April 4. The district court found by a preponderance of the evidence that
Harris committed all three alleged violations.
On appeal, Harris argues that, because he tested positive on April 1, it was a
“near certainty” that he would test positive again on April 4. Therefore, for the
district court to order eight months imprisonment on May 4 after ordering residential
reentry on April 1 is “simply unreasonable.” Essentially, Harris contends that the
district court’s prior leniency made its later harsher sentence unreasonable. We
conclude the argument is without merit. We have repeatedly upheld revocation
sentences that varied upward from the advisory guidelines range because the
defendant was a “recidivist violator of supervised release conditions.” United States
v. Kocher, 932 F.3d 661, 664 (8th Cir. 2019). Here, the district court imposed a
within-range sentence of eight months, a sentence that “is accorded a presumption of
substantive reasonableness.” United States v. Petreikis, 551 F.3d 822, 824 (8th Cir.
2009). In imposing this sentence, the court explained that Harris’s continuing
marijuana use and supervised release non-compliance required an “increased
consequence.” It also noted that on April 4, three days after the court had ordered
residential reentry but before a bed was available, Harris refused instructions to
provide his cell phone’s password after a cursory consensual search suggested drug
trafficking. On this record, the court did not abuse its substantial revocation
sentencing discretion.
The judgment of the district court is affirmed.
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