United States v. Leroy Richardson

        USCA11 Case: 19-11745     Date Filed: 10/16/2020   Page: 1 of 8

                                                           [DO NOT PUBLISH]


                      FOR THE ELEVENTH CIRCUIT

                              No. 19-11745
                          Non-Argument Calendar

                   D.C. Docket No. 4:99-cr-00026-CDL-1







                 Appeal from the United States District Court
                     for the Middle District of Georgia

                             (October 16, 2020)

Before MARTIN, HULL, and JULIE CARNES, Circuit Judges.


     Defendant Leroy Richardson, who was previously convicted for being a
          USCA11 Case: 19-11745        Date Filed: 10/16/2020     Page: 2 of 8

felon in possession of a firearm, appeals his 51-month prison sentence imposed

upon revocation of supervised release. We discern no errors below and affirm

Defendant’s sentence.


      In 1999, Defendant pled guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The court imposed a 188-month

prison sentence, to run consecutively to an undischarged state sentence, and 5

years’ supervised release. While on supervised release after serving his federal

prison sentence, Defendant sustained a Georgia conviction for child molestation

and received a sentence of 25 years’ imprisonment with the first 17 years to be

served in confinement.

      In 2017, a probation officer initiated revocation proceedings based on the

Georgia offense, which violated the terms of Defendant’s supervised release. The

probation officer calculated a guideline range of 51 to 60 months’ imprisonment.

      At the revocation hearing, Defendant admitted the violation but sought a

downward variance to one day consecutive to his state sentence, arguing that he

was likely to die in state prison, given his age, health, and ineligibility for parole

before reaching the age of 75. After adopting the probation officer’s guideline

calculation, the court rejected Defendant’s request for a downward variance “based

on the nature of the violation.” The court then revoked Defendant’s supervised

           USCA11 Case: 19-11745        Date Filed: 10/16/2020    Page: 3 of 8

release and imposed a guideline sentence of 51 months’ imprisonment, finding that

the sentence was “an appropriate one” that “complies with the factors which are to

be considered and referenced in 18 U.S.C. [§] 3583(e)” and “adequately addresses

the totality of the circumstances.” Defendant did not object to his sentence or the

manner in which it was imposed.


        On appeal, Defendant challenges the procedural reasonableness, substantive

reasonableness, and constitutionality of his sentence. We address each argument in


        Under § 3583(e), a court may revoke supervised release and impose a prison

sentence for all or part of the supervised-release term “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).” 18 U.S.C. § 3583(e)(3). Absent from this list is § 3553(a)(2)(A),

which directs a district court imposing a sentence to consider “the need for the

sentence imposed . . . to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense.” 18 U.S.C.

§ 3553(a)(2)(A).

        Drawing on this absence, Defendant first argues that the district court was

not permitted to consider § 3553(a)(2)(A), and that it therefore procedurally erred

in denying his request for a downward variance based on the seriousness of his

          USCA11 Case: 19-11745         Date Filed: 10/16/2020    Page: 4 of 8

offense. Where, as here, a defendant does not object to the procedural

reasonableness of his sentence, we review for plain error. United States v.


754 F.3d 1303

, 1307 (11th Cir. 2014). We may correct a plain error

only when (1) the district court erred, (2) the error was plain, (3) the error affected

substantial rights, and (4) “the error seriously affected the fairness, integrity, or

public reputation of judicial proceedings.”

Id. (alteration accepted) (quotation

marks omitted).

      Defendant’s argument is misguided. For starters, nothing in the record

suggests that the court considered the seriousness of the offense under

§ 3553(a)(2)(A). Instead, the court denied a downward variance based on “the

nature of the violation.” As evident from the court’s language, it was invoking the

factor identified in § 3553(a)(1)—“the nature and circumstances of the offense”—

which § 3583(e) lists as a relevant consideration. 18 U.S.C. § 3553(a)(1),


      Even if the court had considered the seriousness of the offense, however,

doing so would not warrant reversal. In Vandergrift, we rejected the same

argument Defendant now raises—“that it was impermissible to consider the factors

set out under 18 U.S.C. § 3553(a)(2)(A)” in a revocation proceeding. 

Vandergrift, 754 F.3d at 1308

–09. There, we held that the defendant could not establish plain

error because “[t]he text of § 3583(e) does not . . . explicitly forbid a district court

          USCA11 Case: 19-11745       Date Filed: 10/16/2020    Page: 5 of 8

from considering § 3553(a)(2)(A),” neither this Court nor the Supreme Court had

“addressed whether it is error to consider a factor listed in § 3553(a)(2)(A) when

imposing a sentence after revoking supervised release,” and the circuits were split

on the issue.

Id. (emphasis in original).

It remains true that binding precedent has

not held that a court imposing a revocation sentence errs by considering

§ 3553(a)(2)(A). Accordingly, Defendant is not entitled to relief on this ground.

      Next, Defendant argues that his sentence was substantively unreasonable

because the district court selected a sentence based solely on Defendant’s new

offense without considering his age, current state sentence, and health conditions.

We review the substantive reasonableness of a sentence imposed upon revocation

of supervised release for an abuse of discretion. United States v. Gomez, 

955 F.3d 1250

, 1255 (11th Cir. 2020). “A district court abuses its discretion when it (1) fails

to afford consideration to relevant factors that were due significant weight,

(2) gives significant weight to an improper or irrelevant factor, or (3) 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) (quotation marks omitted). “Even

if we disagree with how the district court weighed the sentencing factors, we will

only reverse a procedurally proper sentence if 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 sentence that lies outside the range of

          USCA11 Case: 19-11745        Date Filed: 10/16/2020     Page: 6 of 8

reasonable sentences dictated by the facts of the case.” 

Gomez, 955 F.3d at 1257

(quotation marks omitted).

      Here, Defendant’s 51-month sentence was not substantively unreasonable.

Although the court was required to consider the factors identified in § 3583(e),

failure to discuss each of those factors on the record is not an abuse of discretion.

Id. at 1257–58.

The record shows that the district court listened to Defendant’s

argument for a downward variance and noted that it had considered the guideline

range, the § 3583(e) factors, and the totality of the circumstances in selecting a

sentence. See

id. at 1257

(“It is sufficient that the district court considers the

defendant’s arguments at sentencing and states that it has taken the § 3553(a)

factors into account.” (quotation marks omitted)). Further, the court properly cited

the nature of the offense as a primary reason for imposing 51 months’

imprisonment. 18 U.S.C. §§ 3553(a)(1), (a)(4)(B), 3583(e)(3). We discern no

abuse of discretion in the court’s decision to weigh that factor more heavily than

others, particularly because Defendant’s conviction for child molestation was a

substantive violation of the terms of his supervised release, rather than a mere

technical violation, and the sentence imposed was at the low end of the guideline

range. See 

Gomez, 955 F.3d at 1260

(noting that we ordinarily expect that a

sentence within the guideline range is reasonable).

          USCA11 Case: 19-11745       Date Filed: 10/16/2020    Page: 7 of 8

      Finally, Defendant argues that § 3583 is unconstitutional under the Fifth and

Sixth Amendments because the district court’s factual findings trigger an

additional term of imprisonment that will last longer than the original sentence.

We review the constitutionality of a statute for plain error when, as here, a

defendant raises a constitutional challenge for the first time on appeal. United

States v. Valois, 

915 F.3d 717

, 729 n.7 (11th Cir. 2019).

      To his credit, Defendant acknowledges that we have held that Ҥ 3583(e)(3)

does not violate the Fifth or Sixth Amendments.” United States v. Cunningham,

607 F.3d 1264

, 1268 (11th Cir. 2010). But he nevertheless argues that § 3583(e)’s

constitutionality must be reconsidered in light of the Supreme Court’s decision in

United States v. Haymond, which held that 18 U.S.C. § 3583(k) violated the Fifth

and Sixth Amendments because it triggered a mandatory minimum sentence upon

revocation of supervised release based on judge-found facts. 

139 S. Ct. 2369


2373, 2378 (2019) (plurality opinion);

id. at 2386

(Breyer, J., concurring).

Haymond, however, could not have abrogated our precedent because it expressly

declined to address whether § 3583(e) is constitutional.

Id. at 2382

n.7 (plurality

opinion) (“[W]e do not pass judgment one way or the other on § 3583(e)’s

consistency with Apprendi.”); see

id. at 2386

(Breyer, J., concurring)

(distinguishing between § 3583(k) and § 3583(e)). Because we remain bound by

Cunningham, Defendant has failed to show that the district court plainly erred in

          USCA11 Case: 19-11745       Date Filed: 10/16/2020    Page: 8 of 8

imposing an additional prison sentence under § 3583(e). See United States v.


531 F.3d 1347

, 1352 (11th Cir. 2008) (“[A] prior panel’s holding is

binding on all subsequent panels unless and until it is overruled or undermined to

the point of abrogation by the Supreme Court or by this court sitting en banc.”).

       Because the district court did not err, plainly or otherwise, in imposing a 51-

month term of imprisonment upon revocation of supervised release, we affirm

Defendant’s sentence.


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