USA v. Albert Lee Sclater, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12120
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT LEE SCLATER, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:16-cr-00032-TFM-N-1
____________________
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2 Opinion of the Court 21-12120
Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Albert Lee Sclater, Jr., appeals his sentence of 24 months’ im-
prisonment and 11 months’ supervised release, which the district
court imposed after revoking his supervised release. Sclater argues
that his sentence was “unreasonable and excessive.” Specifically,
Sclater asserts that the district court considered an impermissible
18 U.S.C. § 3553(a) factor and further argues that the nature and
circumstances of his offense do not justify his above-guideline sen-
tence.
We review a sentence imposed upon revocation of super-
vised release for reasonableness.
United States v. Vandergrift, 754
F.3d 1303, 1307 (11th Cir. 2014). When reviewing for reasonable-
ness, we apply a deferential abuse-of-discretion standard.
Gall v.
United States, 552 U.S. 38, 41 (2007). A district court’s considera-
tion of an improper § 3553(a) factor is procedural error.
See Van-
dergrift, 754 F.3d at 1308. When a defendant did not object below
to a procedural sentencing error, we review only for plain error.
Id. at 1307. The plain error standard requires the defendant to
show (1) an error; (2) that is plain; (3) that affects substantial rights;
and (4) that seriously affects the fairness, integrity, or public repu-
tation of judicial proceedings.
United States v. Massey, 443 F.3d
814, 818 (11th Cir. 2006).
Upon finding that the defendant violated a condition of su-
pervised release, a district court may revoke the term of supervised
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21-12120 Opinion of the Court 3
release and impose a term of imprisonment after considering the
specific factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C.
§ 3583(e)(3). In part, sentencing courts must consider (1) the nature
of the offense and the history and characteristics of the defendant;
(2) the need to adequately deter criminal conduct; (3) the need “to
protect the public from further crimes of the defendant;” and (4)
the advisory guideline range.
See id. §§ 3583(e), 3553(a)(1),
(a)(2)(B)-(C), (a)(4).
We have not decided in a published opinion whether a dis-
trict court’s consideration of the § 3553(a)(2)(A) factors—serious-
ness of the offense, respect for the law, and providing for just pun-
ishment for the offense—in imposing a revocation sentence can
constitute a procedural error.
See id. In
Vandergrift, we held that
the district court did not plainly err by considering these factors.
754 F.3d at 1308. Specifically, we held that any error could not be
plain because the Supreme Court had not addressed whether the
consideration of § 3553(a)(2)(A) in a revocation sentence was error,
there was a circuit split on the issue, and we had not yet addressed
the issue in a published opinion.
Id. at 1308-09.
When a defendant seeks a particular sentence but receives a
higher one, he has preserved a substantive reasonableness chal-
lenge to that sentence.
See Holguin-Hernandez v. United States,
140 S. Ct. 762, 766-67 (2020). A district court can abuse its discre-
tion when it: (1) fails to consider relevant factors that were due sig-
nificant weight; (2) gives an improper or irrelevant factor signifi-
cant weight; or (3) commits a clear error of judgment by balancing
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4 Opinion of the Court 21-12120
the proper factors unreasonably.
United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (
en banc).
Chapter Seven of the Sentencing Guidelines, which contains
policy statements, governs sentencing following violations of su-
pervised release.
See, e.g., U.S.S.G. § 7B1.4 (providing recom-
mended ranges of imprisonment applicable upon revocation). Alt-
hough the district court has discretion to impose a sentence outside
the guideline range, the justification for a major variance must be
sufficiently compelling to support the degree of the variance.
Irey,
612 F.3d at 1196.
Here, to the extent that Sclater’s arguments on appeal in-
clude a challenge to a procedural error, this argument is reviewed
for plain error because he did not raise it below. In any event,
Sclater’s argument fails, because the district court did not indicate
that it considered § 3553(a)(2)(A), and even if the district court had
implicitly considered § 3553(a)(2)(A) in imposing Sclater’s sen-
tence, it did not plainly err in doing so.
To the extent that Sclater challenges the substantive reason-
ableness of his 24-month revocation sentence, such an argument is
preserved, because he requested a sentence at the low-end of the
guidelines and objected to the sentence on the basis that it was ex-
cessive. Nevertheless, Sclater cannot show that the district court
failed to consider relevant factors, gave an improper factor signifi-
cant weight, or unreasonably balanced the factors.
Moreover, while the district court varied upward to sen-
tence Sclater to 24 months, it specifically stated that it had consid-
ered Chapter Seven of the Guidelines, and it explained its upward
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21-12120 Opinion of the Court 5
variance by pointing to Sclater’s violations of supervised release
conditions, his criminal record, the need for additional deterrence,
and the need to protect the public.
Accordingly, we affirm Sclater’s sentence of 24 months’ im-
prisonment and 11 months’ supervised release.
AFFIRMED.
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