USA v. Bolaji Owolabi

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11206
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOLAJI OWOLABI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:16-cr-00274-TWT-JSA-1
____________________
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2 Opinion of the Court 23-11206
Before N EWSOM, BRASHER , and BLACK , Circuit Judges.
PER CURIAM:
Bolaji Owolabi appeals his 24-month imprisonment sen-
tence imposed upon revocation of his supervised release. Owolabi
asserts the district court considered the impermissible factor of the
need for the sentence to provide just punishment for the offense
and relied on the Government’s unsupported assertion that he be-
gan committing his new criminal conduct while serving his prior
imprisonment sentence. Owolabi also contends his 24-month im-
prisonment sentence was substantively unreasonable because the
district court did not provide a sufficient justification for the up-
ward variance and imposed a sentence that did not serve the pur-
poses of 18 U.S.C. § 3553(a). After review,1 we affirm.
I. PROCEDURAL REASONABLENESS
A. Consideration of Impermissible Factor
A district court may, “after considering the factors set forth
in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
(a)(6), and (a)(7),”2 revoke a term of supervised release and require
1 We generally review a sentence imposed upon revocation of supervised re-
lease for reasonableness. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th
Cir. 2014).
2 The enumerated § 3553(a) factors include, in relevant part, (1) the nature and
circumstances of the offense and the history and characteristics of the defend-
ant; (2) the need to afford adequate deterrence to criminal conduct; (3) the
need to protect the public from further crimes of the defendant; (4) the need
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23-11206 Opinion of the Court 3
a defendant to serve in prison all or part of the term of supervised
release authorized by statute for the underlying offense that re-
sulted in the term of supervised release. 18 U.S.C. § 3583(e)(3). Ab-
sent from § 3583(e) is § 3553(a)(2)(A), which provides a district
court must consider “the need for the sentence imposed . . . to re-
flect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense.” Id.
§ 3553(a)(2)(A).
In Vandergrift, we considered the appellant’s argument the
district court improperly considered the factors in § 3553(a)(2)(A)
when imposing a sentence upon revocation of supervised release
as a procedural reasonableness challenge and reviewed it for plain
error because the appellant did not raise the issue below. United
States v. Vandergrift, 754 F.3d 1303, 1307-09 (11th Cir. 2014). We
recognized § 3583(e) omitted § 3553(a)(2)(A) from the list of factors
to be considered in the context of revocation of supervised release
but did not expressly forbid a court from considering it either. Id.
at 1308. We stated that neither we nor the Supreme Court had
addressed whether it was error for a court to consider a factor listed
in § 3553(a)(2)(A) when imposing a sentence after revoking super-
vised release and that those circuits that had published an opinion
to provide the defendant with needed educational or vocational training, med-
ical care, or other correctional treatment in the most effective manner; (5) the
kinds of sentence and the sentencing range under the Guidelines; and (6) any
pertinent policy statement issued by the Sentencing Commission. Id.
§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), (a)(7).
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4 Opinion of the Court 23-11206
addressing the issue were split. Id. We held that, considering the
lack of clear binding precedent and the circuit split, a district court’s
consideration of § 3553(a)(2)(A) in imposing a sentence upon revo-
cation of supervised release was not plain error. Id.
Like in Vandergrift, the district court did not plainly err3 by
considering § 3553(a)(2)(A) when imposing Owolabi’s sentence
upon revocation of supervised release. As we stated, any such er-
ror is not plain because the text of § 3583(e) does not explicitly for-
bid a district court from considering § 3553(a)(2)(A) when imposing
a sentence upon revocation of supervised release and there is no
binding precedent from this Court or the Supreme Court holding
that consideration of § 3553(a)(2)(A) is an error. Vandergrift, 754
F.3d at 1308-09. There have been no cases since Vandergrift holding
that consideration of a factor in § 3553(a)(2)(A) in this context is er-
ror. Thus, Owolabi cannot show any alleged error4 by the district
3 While Owolabi raised a sweeping, general objection to “procedural reasona-
bleness,” he did not raise the specific issue of the district court’s considering
the impermissible factor “to provide just punishment” before the court, so this
issue is reviewed for plain error. See United States v. Carpenter, 803 F.3d 1224,
1238 (11th Cir. 2015) (“A sweeping, general objection is insufficient to preserve
specific sentencing issues for review.”); United States v. Straub, 508 F.3d 1003,
1011 (11th Cir. 2007) (explaining to preserve an issue for appeal, a party must
raise an objection that is “sufficient to apprise the trial court and the opposing
party of the particular grounds upon which appellate relief will later be
sought” and do so “in such clear and simple language that the trial court may
not misunderstand it” (quotation marks omitted)).
4 Moreover, the district court’s comments regarding the need for Owolabi’s
sentence to provide some punishment for the violation of his supervised re-
lease conditions, in context with its comments finding his conduct of
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23-11206 Opinion of the Court 5
court was plain. See United States v. Lange, 862 F.3d 1290, 1296 (11th
Cir. 2017), abrogated on other grounds by United States v. Dupree, 57
F.4th 1269 (11th Cir. 2023) (en banc) (stating there can be no plain
error when the issue is not directly resolved by law from the Su-
preme Court or us).
B. Unsupported Factual Finding
Owolabi also cannot show plain error in the district court’s
statement that he began his criminal conduct “even before he was
released from the custody of the [BOP],” as he has not pointed to
any precedent holding that what the district court did was error.
See Lange, 862 F.3d at 1296. Moreover, on review of the district
court’s statement in context with the rest of the sentencing deter-
mination, as the Government notes, the district court found that
Owolabi’s conduct started “immediately” after release from BOP
custody and then noted it was possible it started even earlier. From
the context of the district court’s statement, it did not base its sen-
tencing decision on a finding his criminal conduct started before
committing the same offenses for which he was originally convicted shortly
after beginning his supervised release term to be truly extraordinary and not-
ing Owolabi’s contempt for complying with court orders and with probation
officer instructions, could be construed as reflecting the need to sanction
Owolabi for his breach of the court’s trust while on supervised release.
U.S.S.G. Ch. 7, Pt. A, intro. Comment. 3(b) (providing a sentence imposed
upon revocation should sanction primarily the defendant’s “breach of trust”
for failing to abide by the conditions of the court ordered supervision, while
also accounting for, “to a limited degree, the seriousness of the underlying vi-
olation and the criminal history of the violator”). This is not error, much less
plain error.
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6 Opinion of the Court 23-11206
release from BOP custody; rather, it made an offhand comment
acknowledging a possibility. The district court did not base its sen-
tence on a clearly erroneous fact and did not err, much less plainly
err. See Gall v. United States, 552 U.S. 38, 51 (2007) (selecting a sen-
tence based on clearly erroneous facts is a procedural error); Lange,
862 F.3d at 1296.
II. SUBSTANTIVE REASONABLENESS
We consider the substantive reasonableness of a sentence
under a deferential abuse-of-discretion standard. Gall, 552 U.S. at
51. In reviewing for substantive reasonableness, we must consider
the totality of the circumstances, including the extent of any vari-
ance from the guideline range. Id. The district court abuses its dis-
cretion if it: “(1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an im-
proper or irrelevant factor, or (3) commits a clear error of judg-
ment in considering the proper factors.” United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (en banc).
Section 3553(a) requires that a court “impose a sentence suf-
ficient, but not greater than necessary, to comply with the purposes
set forth in” § 3553(a)(2). 18 U.S.C. § 3553(a). The district court
does not have to give all the § 3553(a) factors equal weight and is
given discretion to attach great weight to one factor over another.
United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).
A district court’s acknowledgment that it has considered the
§ 3553(a) factors and the parties’ arguments is sufficient. United
States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). It is not
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23-11206 Opinion of the Court 7
required to state on the record that it has explicitly considered each
of the § 3553(a) factors or discuss each of them. Id.
If a district court determines that a variance is warranted, it
“must consider the extent of the deviation and ensure that the jus-
tification is sufficiently compelling to support the degree of the var-
iance.” Gall, 552 U.S. at 50. In determining whether to impose a
variance, a district court may consider the nature of a prior offense
under the § 3553(a) factors when the prior crimes were similar to
the present offense, even if the offense already has been considered
in calculating the defendant’s criminal history score under the
Guidelines, because it “fits squarely into one of the § 3553(a) fac-
tors, the history and characteristics of the offender,” under
§ 3553(a)(1). United States v. Williams, 526 F.3d 1312, 1324 (11th Cir.
2008). The district court has broad discretion to decide whether
the § 3553(a) factors justify a variance. United States v. Rodriguez,
628 F.3d 1258, 1264 (11th Cir. 2010), abrogated on other grounds by
Van Buren v. United States, 141 S. Ct. 1648 (2021).
The district court’s sentence was substantively reasonable.
The district court did not err in considering information that had
already been considered by the guideline range, such as the type of
offense Owolabi committed with his new criminal conduct. See
Williams, 526 F.3d at 1324. The district court is not required to state
on the record that it has explicitly considered each of the § 3553(a)
factors or discuss each of them, and it is clear from the totality of
the circumstances the district court considered the nature and cir-
cumstances of the case and Owolabi’s history and characteristics in
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8 Opinion of the Court 23-11206
its determination that Owolabi’s criminal conduct was “truly ex-
traordinary.” See Sarras, 575 F.3d at 1219; Williams, 526 F.3d at
1324. The court had discretion to attach great weight to the time-
line and type of Owolabi’s criminal conduct when sanctioning
Owolabi’s “breach of trust.” See Rosales-Bruno, 789 F.3d at 1254;
U.S.S.G. Ch. 7, Pt. A, intro. Comment. 3(b). And while the district
court did not directly state the purposes of § 3553(a)(2) that the sen-
tence served, the district court did not abuse its discretion, as the
totality of the district court’s comments, particularly its focus on
Owolabi’s immediate return to criminal conduct upon release, ad-
dressed the sentencing purposes of deterrence and protecting the
public. See Sarras, 575 F.3d at 1219; 18 U.S.C. § 3553(a), (a)(2)(B),
(a)(2)(C). The district court did not abuse its discretion, and the
sentence was substantively reasonable.
AFFIRMED.
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