USA v. Nolan Kendrick Boyington

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 20-10959
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00270-JB-N-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NOLAN KENDRICK BOYINGTON,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Alabama
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(September 3, 2020)
Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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Nolan Boyington appeals the district court’s imposition of an 18-month
above-guidelines sentence following the second revocation of his supervised
release. After careful review, we affirm.
I. BACKGROUND
Boyington completed a term of incarceration in 2017 and began a four-year
term of supervised release. While Boyington was serving his term of supervised
release, his probation officer filed a noncompliance report, alleging that Boyington
had tested positive for and admitted to using methamphetamine, a violation of the
terms of his supervision. The probation officer noted that Boyington had been
warned that any further substance abuse could result in a petition to revoke his
supervision but recommended that, for this violation, the district court continue
supervised release. The district court agreed.
Boyington’s probation officer thereafter petitioned to revoke his supervised
release, alleging that Boyington had violated several conditions of supervision by:
(1) again testing positive for and admitting to using methamphetamine; (2) failing
to notify his probation officer of multiple changes in residence, report to the
probation officer as instructed, and comply with drug testing; and (3) being
arrested and charged with possession of drug paraphernalia. Boyington waived his
right to a revocation hearing and admitted to the violations. The district court
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revoked Boyington’s supervised release and sentenced him to 4 months’
imprisonment followed by 24 months’ supervised release.
After Boyington served his carceral sentence, he began his new term of
supervised release. Three weeks later, however, Boyington’s probation officer
filed a noncompliance report alleging that Boyington had tested positive for and
admitted to using marijuana and methamphetamine. The report indicated that the
probation officer had warned Boyington that further violations could result in
revocation of his supervised release. Again, the probation officer recommended
that the district court continue supervision, and again the district court agreed.
Boyington continued to violate the terms of his supervised release. Thus, his
probation officer filed a second petition to revoke supervision, alleging that
Boyington had violated several conditions of his supervision by: (1) failing to
contact a treatment provider after receiving an assessment suggesting he would
benefit from substance abuse counseling; (2) failing to submit two monthly reports
or to report to the probation officer as directed on two occasions; (3) associating
with a person who had been convicted of a felony; (4) failing to report to the
probation officer that he had been questioned by law enforcement on two
occasions; (5) using methamphetamine after the noncompliance report; and (6)
changing his residence without first notifying the probation officer. Boyington
again waived his right to a revocation hearing and admitted to the alleged
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violations. The district court found that he had violated the terms of his
supervision and revoked his supervised release.
The probation officer recommended a sentence upon revocation of 18
months’ imprisonment followed by 12 months’ supervised release. This was an
eight-month upward variance from the top of the guidelines range the probation
officer had calculated, 4 to 10 months’ imprisonment, see U.S.S.G.
§§ 7B1.1(a)(3)(B), 7B1.4(a), but below the statutory maximum of 36 months’
imprisonment. At a sentencing hearing the government agreed with the probation
officer’s recommendation, citing the need for deterrence and noting Boyington’s
past revocation and the numerous violations of his terms of supervision, both
technical and relating to drug abuse.
Boyington offered testimony of his mother and aunt in mitigation. Both
testified that Boyington was addicted to drugs, needed help, and recognized his
need for help. His mother told the district court that she had located a residential
rehabilitation facility that would take Boyington for 18 months. She told the court
that sending Boyington to prison would not help his drug addiction because he had
access to drugs in prison. Boyington spoke on his own behalf, apologizing to the
probation officer and his family and acknowledging that he needed help for his
addiction. Defense counsel argued against an upward variance, contending that
Boyington’s guidelines range accounted for his drug problems and recidivism and
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asserting that a rehabilitation program would be more effective than prison.
Counsel further noted Boyington’s positive attitude and desire to receive drug
treatment, as well as the fact that he was father to a 16-year-old and expecting a
baby soon.
The district court acknowledged that Boyington had come before the court
twice. The court explained that it had previously sentenced Boyington “in a
generous manner,” but that Boyington began using drugs “immediately on
release.” Doc. 251 at 14–15.
1
And, the court explained, Boyington failed
altogether to participate in his supervision. The court agreed with defense counsel
that in promulgating the Sentencing Guidelines the United States Sentencing
Commission generally accounted for drug abuse and recidivism but stated that the
Guidelines were not “designed for the situation that we find ourselves in right
here.” Id. at 15. The court therefore imposed a sentence of 18 months of
imprisonment, followed by 12 months of supervised release.
2
Defense counsel
objected to the variance.
This is Boyington’s appeal.

1
“Doc.” numbers refer to the district court’s docket entries.
2
The district court ordered that the first six months of Boyington’s supervised release be
served in home confinement. Boyington’s Statement of the Issues in his appellate brief identifies
the six-month term as substantively unreasonable. But he advances no substantive argument on
that point. Since Boyington has failed to meaningfully argue that his six-month term of home
confinement is unreasonable, we do not address it further.
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II. STANDARD OF REVIEW
Upon revocation of supervised release, a district court must impose a
sentence that is substantively reasonable. United States v. Gonzalez, 550 F.3d
1319, 1323 (11th Cir. 2008); United States v. Sweeting, 437 F.3d 1105, 1106–07
(11th Cir. 2006). We review the reasonableness of a sentence under a deferential
abuse of discretion standard, considering the totality of the circumstances and the
sentencing factors set forth in 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S.
38, 51 (2007).
Under § 3553(a), the district court is required to impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes” of
§ 3553(a)(2)—the need to reflect the seriousness of the offense; promote respect
for the law; provide just punishment; deter criminal conduct; protect the public
from the defendant’s future criminal conduct; and effectively provide the
defendant with educational or vocational training, medical care, or other
correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the
nature and circumstances of the offense; the history and characteristics of the
defendant; the kinds of sentences available; the applicable guideline range, the
pertinent policy statements of the Sentencing Commission; the need to avoid
unwarranted sentencing disparities; and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
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The party challenging a sentence bears the burden of proving the sentence is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A
district court imposes a substantively unreasonable sentence when it fails to afford
consideration to relevant factors that were due significant weight, gives significant
weight to an improper or irrelevant factor, or commits a clear error of judgment in
considering the proper factors. United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc). Generally, the weight to be accorded any given § 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). A district court commits
a clear error of judgment when it “considers the proper factors but balances them
unreasonably” and imposes a sentence that “does not achieve the purposes of
sentencing as stated in § 3553(a).” Irey, 612 F.3d at 1189 (internal quotation
marks omitted).
When a sentencing court varies above the advisory guideline range, it must
support that decision with a justification that is “‘sufficiently compelling to support
the degree of the variance.’” Id. at 1186 (quoting Gall, 552 U.S. at 50). “The
district court may consider facts that were taken into account when formulating the
guideline range for the sake of a variance.” United States v. Dougherty, 754 F.3d
1353, 1362 (11th Cir. 2014). We do not assume a sentence outside the guideline
range is unreasonable and must give due deference to the district court’s decision
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that the extent of the variance is justified by the § 3553(a) factors. Irey, 612 F.3d
at 1187. That a sentence falls well below the statutory maximum is an indication
of reasonableness. United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir.
2016).
III. DISCUSSION
On appeal, Boyington argues that the district court erred by varying upward
from his guideline range based on its conclusion that his circumstances were of a
kind that the Guidelines did not contemplate. We disagree.
The record reflects that the district court properly considered the 18 U.S.C.
§ 3553(a) factors in imposing a sentence eight months above the top of the
advisory guideline range. Williams, 526 F.3d at 1322. The court considered
Boyington’s drug addiction, the numerous violations of his conditions of
supervision, and the failure of a previous, more lenient sentence to deter
misconduct, factors that together support the degree of the variance. Irey, 612 F.3d
at 1186. Although the district court acknowledged that the Guidelines’ revocation
provisions account for some of these factors, see U.S.S.G. Ch. 7, Pt. A, comment.
n.3(b) (directing sentencing courts to consider the defendant’s breach of trust,
criminal history, and underlying violation), the court was entitled to also consider
the factors when determining an appropriate sentence under § 3553(a). See
Dougherty, 754 F.3d at 1362. The 18-month sentence also falls well below the 36-
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month statutory maximum, one indicator of reasonableness. Croteau, 819 F.3d at
1310.
Considering the totality of the circumstances, we cannot say that the district
court abused its discretion in imposing an eight-month upward variance in this
case. See Gall, 552 U.S. at 51. We therefore affirm.
AFFIRMED.
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