USA v. Bryant E. Shaw

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13103
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-00233-ODE-RGV-15
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYANT E. SHAW,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(May 20, 2021)
Before WILLIAM PRYOR, Chief Judge, NEWSOM and ANDERSON, Circuit
Judges.
PER CURIAM:
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Bryant Shaw appeals the revocation of his supervised release and sentence
of 30 months of imprisonment. 18 U.S.C. § 3583(e). The district court modified
Shaw’s supervised release for associating with known felons, id. § 3563(b)(6), and
it later revoked his supervised release for committing the new crimes of conspiring
to commit a drug crime and of possessing a firearm as a felon, id. § 3563(a)(1).
Shaw argues that “the principles underlying the doctrines of issue preclusion,
collateral estoppel and res judicata” barred “punish[ing] [him] twice for the same
violation of his supervised release.” We disagree. Because the changes to Shaw’s
term of supervised release were based on different violations, we affirm.
One year after Shaw completed his prison sentence for conspiring to
distribute at least 5 kilograms of cocaine, id. §§ 846, 841(b)(1)(A)(ii), his
probation officer petitioned to revoke his supervised release, but later rescinded
that petition. Shaw agreed to waive his rights to counsel and a hearing and to
modify his supervised release to add 180 days of location monitoring. See id.
§§ 3583(e)(4), 3563(c). The petition to modify charged Shaw for associating with
two felons, Frank McCullough and Anthony Dexter Brown, on August 24, 2017.
See id. § 3563(b)(6). The petition stated that federal agents searched “a residence
linked to [Shaw],” discovered “firearms, marijuana packaged for distribution,
possible fraudulent credit cards, and a large amount of cash,” and had “an ongoing
investigation based on this evidence.”
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Shaw moved for early termination of his supervised release, but the district
court denied the motion. The district court ruled that early termination was
“[un]warranted” because Shaw had associated with convicted felons at a site where
agents discovered “firearms and marijuana packaged for distribution” and because
Shaw had a “possible association with drug distribution.”
On February 13, 2020, Shaw’s probation officer filed a petition to revoke
that charged him for committing two new crimes. See id. §§ 3583(d), 3563(a). The
petition alleged that, between July 19, 2017, and August 24, 2017, Shaw conspired
with F.M. and other persons to possess with intent to distribute marijuana. Id.
§§ 846, 841(a)(1). The petition also alleged that, on August 24, 2017, Shaw was a
felon in possession of a firearm. Id. § 922(g)(1). Shaw moved to dismiss the
petition, but the district court denied the motion.
After a three-day evidentiary hearing, the district court revoked Shaw’s
supervised release. See id. § 3583(e)(3), (g). The government requested that Shaw
receive a sentence of 60 months, and Shaw sought a sentence of 366 days. The
district court sentenced Shaw to 30 months of imprisonment.
We review the revocation of supervised release for abuse of discretion.
United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994).
The district court did not abuse its discretion by revoking Shaw’s supervised
release. A defendant has an ongoing obligation to comply with the conditions and
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restrictions on his conduct during the unexpired term of his supervised release. 18
U.S.C. § 3583(a), (f). The district court found that Shaw violated the mandatory
condition of supervised release that he “not commit another . . . crime during the
term of supervision.” Id. §§ 3583(d), 3563(a). Shaw does not contest that finding
or the sentence that he received.
Shaw argues that the revocation and the earlier modification of his
supervised release punished the “same conduct,” but the record belies his
argument. The district court modified Shaw’s supervised release because he
associated with felons. See id. § 3563(d). Federal agents discovered evidence of
crimes when they found Shaw keeping company with felons, but that evidence
became part of “an ongoing investigation.” Years passed before the agents
determined that Shaw had engaged in criminal activities. In the meantime, as the
district court stated when denying Shaw’s motion for early termination, it knew of
Shaw’s “association with known felons” and only of a “possible association with
drug distribution.” After federal agents connected Shaw to criminal activities, the
district court was required to “revoke the term of supervised release and require
[Shaw] to serve a term of imprisonment.” See id. § 3583(g).
We AFFIRM the revocation of Shaw’s supervised release.
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