USA v. Ernest Jenkins

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11186
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNEST JENKINS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:20-cr-00273-LSC-JHE-1
____________________
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2 Opinion of the Court 23-11186
Before ROSENBAUM, G RANT, and L AGOA, Circuit Judges.
PER CURIAM:
Ernest Jenkins appeals his sentence of 33 months’ imprison-
ment, an upward variance from the guideline range of 4 to
10 months, imposed following the revocation of his probation. Jen-
kins argues that the district court abused its discretion in imposing
the sentence because it is greater than necessary to serve the rele-
vant 18 U.S.C. § 3553(a) factors considering Jenkins’s personal mit-
igating characteristics, including his health issues.
We generally review sentences imposed upon revocation of
probation for an abuse of discretion. See United States v. Mitsven,
452 F.3d 1264, 1266 & n.1 (11th Cir. 2006) (noting that this is the
standard of review for a sentence imposed upon revocation of su-
pervised release, which we treat “essentially the same” as a sen-
tence imposed upon probation revocation). An appellant generally
preserves a substantive reasonableness challenge for appeal by ad-
vocating for a lesser sentence than what the district court imposed,
which is sufficient to bring to the district court’s attention his view
that a longer sentence is greater than necessary. Holguin-Hernandez
v. United States, 140 S. Ct. 762, 766-67 (2020). The party who chal-
lenges the sentence bears the burden of showing that it is unrea-
sonable in light of the totality of the circumstances and the
§ 3553(a) factors. United States v. Trailer, 827 F.3d 933, 936 (11th Cir.
2016).
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23-11186 Opinion of the Court 3
If a defendant violates a condition of probation, the district
court may, after a hearing and consideration of the § 3553(a) factors
to the extent that they are applicable, continue the defendant on
probation or revoke probation and resentence him. 18 U.S.C.
§ 3565. The “overarching” instruction to sentencing courts in
18 U.S.C. § 3553 is that any sentence, whether within the guideline
range or through a variance, must be sufficient but not greater than
necessary to comply with the purposes listed in § 3553(a)(2). Kim-
brough v. United States, 552 U.S. 85, 101 (2007); 18 U.S.C. § 3553(a);
see Gall v. United States, 552 U.S. 38, 51 (2007) (stating that whether
a sentence falls inside or outside the guideline range, the district
court must consider the § 3553(a) factors). The proper factors as
set out in § 3553(a) include the nature and circumstances of the of-
fense, the personal history and characteristics of the defendant, the
seriousness of the crime, the promotion of respect for the law, just
punishment, adequate deterrence, and protection of the public
from further crimes of the defendant. 18 U.S.C. § 3553(a)(1)-(2).
The court must also consider the applicable guideline range, any
pertinent policy statements from the Sentencing Commission, the
need to avoid unwarranted sentencing disparities between similarly
situated defendants, and the need to provide restitution to any of
the defendant’s victims. Id. § 3553(a)(1), (3)-(7).
A court imposes a substantively unreasonable sentence only
when it (1) fails to consider relevant factors that were due signifi-
cant weight, (2) gives an improper or irrelevant factor significant
weight, or (3) commits a clear error of judgment by balancing the
proper factors unreasonably. United States v. Rosales-Bruno, 789 F.3d
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4 Opinion of the Court 23-11186
1249, 1256 (11th Cir. 2015). A district court must evaluate all the
§ 3553(a) factors, but the weight accorded to each factor is within
the sound discretion of the district court. United States v.
Ramirez-Gonzalez, 755 F.3d 1267, 1272-73 (11th Cir. 2014). Under
the abuse-of-discretion standard, even as to a substantial variance,
we will not reverse a sentence unless we are “left with the definite
and firm conviction that the district court committed a clear error
of judgment in weighing the § 3553(a) factors by arriving at a sen-
tence that lies outside the range of reasonable sentences dictated
by the facts of the case.” United States v. Johnson, 803 F.3d 610,
618-19 (11th Cir. 2015) (quotation marks omitted).
The Supreme Court has specifically rejected the idea that an
extraordinary justification is required for a sentence outside the
guideline range. Gall, 552 U.S. at 47. But “a major variance does
require a more significant justification than a minor one—the re-
quirement is that the justification be sufficiently compelling to sup-
port the degree of the variance.” United States v. Irey, 612 F.3d 1160,
1196 (11th Cir. 2010) (en banc) (quotation marks omitted).
The Sentencing Guidelines provide that a sentence imposed
upon revocation of probation should sanction primarily the de-
fendant’s “breach of trust” for failing to abide by the conditions of
the court ordered supervision, while also accounting for, “to a lim-
ited degree, the seriousness of the underlying violation and the
criminal history of the violator.” U.S.S.G. Ch. 7, Pt. A, intro. com-
ment. 3(b). We, however, have “consistently held that the policy
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23-11186 Opinion of the Court 5
statements of Chapter 7 are merely advisory and not binding.”
United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).
Here, we conclude that the district court did not abuse its
discretion in varying upward to a 33-month sentence because it was
within its discretion to give greater weight to the nature and cir-
cumstances of Jenkins’s violations, including his claim that he was
not complying with his electronic monitoring requirements be-
cause he had to supervise his minor son and that this claim was
discovered to be false. Additionally, it was within the district court’s
discretion to determine that the upward sentence was necessary to
sanction Jenkins’s breach of the court’s trust. See U.S.S.G. Ch. 7,
Pt. A, intro. comment. 3(b); 18 U.S.C. § 3553(a)(1); Ramirez-Gonza-
lez, 755 F.3d at 1272-73.
Accordingly, we affirm the district court’s sentence of 33
months’ imprisonment.
AFFIRMED.
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