Case: 13-10542    Date Filed: 11/14/2013   Page: 1 of 6


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10542
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 5:03-cr-00304-LSC-HGD-1



UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                      versus

RODDRICK MOORE,
                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                               (November 14, 2013)

Before HULL, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Roddrick Moore appeals his 60-month sentence, imposed upon revocation of

his supervised release. He argues that his sentence, which was above the advisory
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Guideline range of 37 to 46 months, was procedurally unreasonable because the

district court improperly relied on 18 U.S.C. § 3553(a)(2)(A). He also argues that

his sentence was substantively unreasonable because the court’s upward departure

was based on § 3553(a)(2)(A), and it failed to acknowledge its consideration of his

mitigating arguments. For the reasons discussed below, we affirm.

      The facts here are straightforward and not in dispute. Moore pleaded guilty

to several drug-related crimes in 2003, and served around five years in prison.

After his release in June 2008, Moore began an 8-year term of supervised release.

He violated the terms of his supervised release in December 2010 by possessing

and selling cocaine, and failing to notify his probation officer of his questioning by

police. He violated the terms again in February 2012 by possessing cocaine and a

firearm, and failing to notify his probation officer. The district court held a

revocation hearing in January 2013, and sentenced Moore to 60-months

imprisonment. The judge asked if there were “any objections from any party as to

the findings of fact, the calculation of the sentence, or the manner in which the

sentence was pronounced or imposed.” Neither the government nor Moore

objected.

      A sentence imposed for revocation of supervised release is reviewed for

reasonableness. United States v. Sweeting, 

, 1106–07 (11th Cir.

2006). We review a district court’s decision to exceed the Guideline range in


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imposing a sentence upon revocation of supervised release for an abuse of

discretion. United States v. Brown, 

, 1239 (11th Cir. 2000).

However, when a defendant raises a sentencing argument for the first time on

appeal, as Moore has done, review is for plain error. United States v. Aguillard,

, 1320 (11th Cir. 2000). We correct for plain error when: (1) there is

error; (2) the error is plain; and (3) the error affects substantial rights. 

be plain unless it is “clear under current law.” 

(citation

omitted).

      Revocation of supervised release is mandatory when the defendant

possessed a controlled substance or firearm in violation of the conditions of

supervised release. 18 U.S.C. § 3583(g)(1), (2). While the factors for

consideration in discretionary revocation specifically exclude § 3553(a)(2)(A),

mandatory revocation under subsection (g) contains no such exclusion. See

–42. When a defendant is sentenced under subsection (g),

the only limitation is that the term of imprisonment must not exceed the maximum

term of imprisonment authorized under § 3583(e)(3), which, when the original

offense was a class A felony, is five-years imprisonment. 18 U.S.C. § 3583(e)(3),

(g). A district court need not specifically state that it is compelled to revoke

supervised release pursuant to subsection (g) if the conditions implicating the

provision are present. See 

.


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      Because Moore stipulated that he possessed a firearm and a controlled

substance in violation of his supervised release, the conditions implicating

§ 3583(g) were satisfied, and revocation of his supervised release was mandatory.

After not citing to or discussing § 3583(g) in his opening brief, in his reply brief

Moore states that the government’s reliance on this provision “must fail because at

no time during the district court proceedings did the Government, or any other

entity, allege or seek to establish that Mr. Moore was subject to mandatory

revocation pursuant to § 3583(g).” But this claim conflicts with Circuit precedent.

See 

(“Although not mentioned by the district court,

Brown’s revocation was mandatory because he possessed a controlled substance

and refused to comply with drug testing.”). The district court did not err in

considering § 3553(a)(2)(A), because the factor is not excluded from consideration

under § 3583(g). Moore’s sentence is therefore procedurally reasonable, and we

affirm in this respect.

      Next, we examine Moore’s substantive reasonableness challenge. In

reviewing a sentence outside the Guideline range, we may consider the degree of

variance and the extent of the deviation from the Guidelines. United States v. Irey,

, 1186 (11th Cir. 2010) (en banc) (citing Gall v. United States, 

, 47, 

, 594–95 (2007)). The justification given should be

sufficiently compelling to support the degree of variance. 

.


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      Moore argues substantive unreasonableness “based in large part” on the

district court’s consideration of § 3553(a)(2)(A), and also because the court

inadequately considered “the possibility” that he “could assist the Government in

other prosecutions, his rehabilitative efforts, and his family obligations.” As we

have discussed, the district court committed no error in considering

§ 3553(a)(2)(A) in a proceeding under § 3583(g). The district court also

considered Moore’s rehabilitative efforts and family obligations, and determined

that repeated violations of his supervised release weighed in favor of a sentence

above the Guideline range. Although Moore is correct that the district court failed

specifically to acknowledge on the record that it had considered his alleged ability

to assist in other prosecutions, it was not required to do so. See United States v.

Dorman, 

, 938 (11th Cir. 2007).

      Moore has not demonstrated that his 60-month sentence was substantively

unreasonable. He admitted a number of violations of his supervised release,

including possession of a controlled substance and firearm. Also, the district court

adequately explained its upward variance from the Guideline range based on

Chapter 7’s policy statement. The court noted that it felt the sentence was

appropriate in light of the § 3553(a) factors, including Moore’s personal

characteristics and history. Finally, the sentence was within the statutory limits,

supporting its reasonableness.


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      On this record, Moore’s 60-month sentence was both procedurally and

substantively reasonable, and the district court is AFFIRMED.




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