Case: 19-14109   Date Filed: 07/30/2020    Page: 1 of 18



                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-14109
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:16-cr-00400-MHH-HNJ-1



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,


                                  versus


BRANDON KEITH LECROY,

                                                Defendant - Appellant.

                      ________________________

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

                              (July 30, 2020)

Before WILSON, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Brandon Keith LeCroy appeals the revocation of his supervised release and

resulting 24-month prison sentence. At his revocation hearing, the district court

admitted into evidence hearsay statements regarding LeCroy’s role in a theft. On

appeal, LeCroy argues that because the only evidence of his involvement in the

theft were these unreliable statements, the evidence was insufficient for the district

court to find that he violated the terms of his supervised release. LeCroy also

contends that the district court erred by failing to make a statement as to the

evidence it relied upon and its reasons for revoking his supervised release and that

his sentence was procedurally and substantively unreasonable. After careful

consideration, we affirm.

                                I.   BACKGROUND

      LeCroy pled guilty to one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). He received a prison sentence to be followed

by three years of supervised release. As relevant here, the terms and conditions of

LeCroy’s supervised release prohibited him from committing a federal, state or

local crime; purchasing, possessing, using, distributing, or administering any

narcotic or other controlled substance; or associating with any person convicted of

a felony without the permission of his probation officer. The terms and conditions

also required LeCroy to follow his probation officer’s instructions and participate

in a drug and alcohol counseling program.


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      LeCroy began serving the supervised release portion of his sentence in April

2019. Less than three months later, his probation officer reported that LeCroy had

been charged with a state theft offense, and the district court held a status

conference. The court, at the recommendation of the probation officer, chose not

to examine the circumstances behind the state theft charge at that time and instead

requested a mental health evaluation for LeCroy.

      In September 2019, LeCroy’s probation officer petitioned the court for

revocation of LeCroy’s supervised release, alleging that LeCroy had committed

five violations of the terms of his supervised release. The probation officer alleged

the following violations: (1) LeCroy was arrested for theft of property, in violation

of Alabama Code § 13A-8-3, a class B felony; (2) he tested positive for

methamphetamine and later admitted to using methamphetamine; (3) after he was

identified as the suspect in a stabbing, his probation officer ordered him to report to

the Fyffe Police Department to meet with investigators within 45 minutes, yet

LeCroy did not arrive at the police department until the next day; and (4) officers

from the Fyffe Police Department performed a traffic stop of LeCroy’s car and

determined that one of the car’s passengers was a known convicted felon.

      The district court held a revocation hearing on the petition. LeCroy admitted

to violating conditions of his supervised release by using controlled substances

(Violation (2)), failing to follow his probation officer’s instructions (Violation (3)),


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and associating with a known convicted felon who, he explained, was his coworker

(Violation (4)). The government presented evidence to establish that LeCroy had

also violated his supervised release conditions by committing a theft offense

(Violation (1)).1

       The government called Chris McIllwain, a detective with the Scottsboro

Police Department, who testified to the following. McIllwain was investigating the

theft of an all-terrain vehicle (“ATV”) that had been reported stolen. A patrol

officer informed McIllwain that he had stopped a man riding a dirt bike with the

last name LeCroy in the area where the ATV had been stolen. The investigation

led McIllwain to LeCroy’s home address, where he discovered a trail in the woods

behind LeCroy’s house that led to the stolen ATV. The ATV had no key in it but

had crossed wires, a condition which, according to McIllwain, was consistent with

the vehicle having been hotwired.

       After the ATV was found in the woods behind LeCroy’s house, LeCroy was

asked to come to the police station. When he arrived, he was accompanied by his

13 year-old stepson, C.W. LeCroy admitted that the address where the ATV had

been discovered was his house but stated that he had never seen the ATV and was




       1
          The government also attempted to establish that LeCroy had committed an assault (the
stabbing referenced in Violation (3)); however, the district court found that the government had
failed to prove that LeCroy committed the assault. The district court’s finding is not at issue in
this appeal, so we do not discuss it further.
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unaware of its presence behind the house. C.W. was also interviewed. C.W. was

not considered a suspect because McIllwain did not think at his age he would know

how to hotwire a vehicle. C.W.’s interview was conducted without a parent

present and with multiple officers in the room. According to the interview report,

C.W. stated that he and a friend, S.J., were riding dirt bikes when they discovered

the ATV in the woods. The two attempted to find its owner but were unsuccessful.

The ATV’s tires were flat when they found it. After returning home, C.W. told

LeCroy about the ATV and then brought LeCroy and his mother to the location of

the ATV. LeCroy filled the ATV’s tires with air, hotwired it, and drove it back to

his house, where he hid it in the wooded area behind the house.

      S.J. had also told his mother, who informed McIllwain, that he and C.W.

discovered the stolen ATV in the woods with flat rear tires and no owner in sight.

      At the close of the evidence, LeCroy argued that C.W.’s statements were

problematic because he was interviewed by police officers who knew that C.W.

could have incriminated himself, he did in fact incriminate himself, and he was

interviewed without a parent present. LeCroy argued that these facts raised a

question about the credibility of the statements. LeCroy did not object that

McIllwain’s testimony about what C.W. said in the interview was hearsay. The

district court rejected LeCroy’s arguments. It found that the government had

proven by a preponderance of the evidence that LeCroy had committed “a federal,


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state, or local crime with respect to the ATV incident.” Doc. 53 at 89.2 The court

then found that LeCroy had violated this and other conditions of his supervised

release.

      In sentencing LeCroy, the district court noted that the ATV theft constituted

a Grade B violation of the terms of supervised release which, when combined with

LeCroy’s criminal history category of VI and statutory maximum sentence of 24

months, resulted in a guideline revocation range of 21 to 24 months’

imprisonment. The court sentenced LeCroy to 21 months’ imprisonment followed

by three months of supervised release. The court explained that it believed the

sentence was appropriate taking into consideration the guideline computations and

the 18 U.S.C. § 3553(a) factors. The court also stated that the sentence reflected

the nature and circumstances of the violations before the court, as well as LeCroy’s

significant criminal history. LeCroy requested that the court instead sentence him

to 24 months’ imprisonment without a supervised release term. The court

complied and revised its sentence to 24 months’ imprisonment. LeCroy made no

relevant objections.

      LeCroy now appeals.




      2
           Citations in the form “Doc. #” refer to district court docket entries.
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                                      II.   ANALYSIS

      LeCroy raises three arguments on appeal. First, he contends that the

government presented insufficient evidence to support the district court’s finding

that he stole the ATV. Second, he argues that the district court erred in failing to

make a statement identifying the evidence it relied upon and its reasons for

revoking his supervised release. Third, he asserts that his sentence was

procedurally and substantively unreasonable. We consider each argument in turn.

A.    The District Court Did Not Clearly Err When It Found that LeCroy
      Had Committed a Theft Offense.

      LeCroy first argues that the district court erred in finding that he had

violated the terms of his supervised release by committing a theft offense because

the government failed to prove by a preponderance of the evidence that he

committed the ATV theft. He argues that the only evidence supporting that he

stole the ATV came from C.W.’s statements, and those statements were

insufficient to carry the government’s burden of proof because they were

unreliable hearsay. LeCroy contends that the statements were unreliable because:

(1) C.W. was a minor who was interviewed without a parent present; (2) C.W. was

given no Miranda3 warnings; (3) C.W. could have incriminated, and did in fact




      3
          Miranda v. Arizona, 

(1966).
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incriminate, himself; and (4) the statements were offered at the revocation hearing

through double hearsay. 4

       A district court may revoke a term of supervised release if it finds by a

preponderance of the evidence that the defendant violated a condition of his

supervised release. 18 U.S.C. § 3583(e)(3). We review a district court’s

revocation of supervised release for an abuse of discretion. United States v.

Copeland, 

, 413 (11th Cir. 1994). In reviewing a revocation

proceeding, we are bound by the district court’s findings of fact unless they are

clearly erroneous. United States v. Almand, 

, 318 (11th Cir. 1993).

       First, LeCroy asserts that C.W.’s statements were the only evidence

supporting the district court’s finding that he committed the ATV theft. The

district court, however, heard other testimony from McIllwain, beyond C.W.’s

statements, connecting LeCroy to the theft. McIllwain’s testimony also indicated

that LeCroy had been riding a dirt bike in the area where the ATV was stolen, the

ATV was found in the woods behind LeCroy’s house by following a trail that led

from the house to the ATV, and S.J. had told his mother that he and C.W had

discovered the ATV in the woods, without an owner, and with flat tires. Although



       4
          Although LeCroy argues in his initial brief that the critical evidence against him—
McIllwain’s testimony about C.W.’s statements—was “double hearsay” and “bore no indicia of
reliability,” Appellant’s Br. at 1516, he clarifies in his reply brief that he is not asserting a
challenge to the admission of the evidence; rather, he is arguing only that the evidence was
insufficient to prove that he committed the theft, see Reply Br. at 23.
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LeCroy suggests that C.W. stole the ATV, McIllwain stated that the fact that the

ATV was hotwired suggested that it was not stolen by C.W., who was 13 years old

and unlikely to know how to hotwire an ATV. It was within the district court’s

discretion as the factfinder to credit McIllwain’s testimony. Jeffries v. United

States, 

, 1313 (11th Cir. 2014) (“Because credibility determinations

are the province of the factfinder, we give them substantial deference.” (internal

citation omitted)).

      Second, LeCroy argues that C.W.’s statements were unreliable and therefore

insufficient to establish that he stole the ATV. We are unpersuaded. Even though

LeCroy asserts, and McIllwain confirmed, that C.W. was questioned by multiple

police officers without his parents present and without the benefit of Miranda

warnings, LeCroy points to no evidence showing that C.W.’s statements actually

were unreliable because of these circumstances. Similarly, LeCroy offers no

evidence demonstrating that C.W.’s statements were false. In fact, the reliability

of C.W.’s statements are supported by the record, which corroborates his account.

See United States v. Docampo, 

, 1098 (11th Cir. 2009) (explaining

that where hearsay statements were corroborated by other evidence in the record,

the hearsay evidence was reliable). C.W. informed officers that he observed

LeCroy hotwire the ATV and take it back to his house before hiding it in the

woods. This account is consistent with McIllwain’s testimony that the ATV was


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discovered hidden behind LeCroy’s house with crossed wires. Because LeCroy

offers no evidence that C.W.’s account was false and C.W.’s statements were

supported by other evidence in the record, we conclude that the district court did

not clearly err in finding that LeCroy committed theft of property and thus violated

one of his supervised release conditions. See 

; 18 U.S.C.

§ 3583(e)(3).

B.    The District Court Did Not Err When It Stated Its Finding that LeCroy
      Had Violated His Supervised Release Conditions by Committing a
      Theft.

      LeCroy also argues that the district court erred by failing to make a

statement identifying the evidence it relied upon in finding that LeCroy violated

the conditions of his supervised release, as is required by Morrissey v. Brewer,

, 489 (1972). The district court’s statements, LeCroy contends, were

merely conclusory and thus insufficient to satisfy Morrissey. The government

disagrees and argues that the district court sufficiently explained its reasoning,

which was supported by the record.

      Defendants in revocation proceedings are entitled to due process rights,

though not the full set of trial rights. 

. Relevant here,

principles of due process require that a defendant facing revocation of his

supervised release receive a written statement by the factfinder as to the evidence

relied on and the reasons for revocation. See

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       Oral findings can satisfy Morrissey’s requirements when those findings

“create a record sufficiently complete to advise the parties and the reviewing court

of the reasons for the revocation of supervised release and the evidence the

decision maker relied upon.” 

. Moreover, “general

conclusory reasons . . . do not meet [the] due process requirement that the revoking

judge state the factual findings and the reasons relied upon for revocation.” United

States v. Lacey, 

, 445 (5th Cir. 1981). When a court has provided

only a conclusory statement about a supervised release violation, Lacey can

nevertheless be satisfied if there was only one incident at issue and “the evidence

and the reasons for revoking supervised release were clear.” United States v.

Johnson, 

, 1211 (11th Cir. 2012).

       As an initial matter, the parties disagree as to the appropriate standard of

review. LeCroy, citing Federal Rule of Criminal Procedure 51(b), 5 argues that

although he did not object to the district court’s statement, we should review his

claim de novo rather than for plain error because the district court gave him no

opportunity to object. But we need not decide the correct standard here because

LeCroy’s claim fails under either standard.




       5
          Rule 51(b) provides that “[i]f a party does not have an opportunity to object to a ruling
or order, the absence of an objection does not later prejudice that party.” Fed. R. Crim. P. 51(b).
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      We agree with LeCroy that the district court’s statement was conclusory. In

announcing its finding, the district court stated only that “the United States ha[d]

prove[n] by a preponderance of the evidence the charge from June 25, 2019, that

Mr. LeCroy committed a federal, state, or local crime with respect to the ATV

incident.” Doc. 53 at 89. Despite the conclusory nature of the district court’s

statement, we nonetheless conclude that it satisfied the requirements under

Morrisey and Lacey because, here, as in Johnson, “the evidence and the reasons for

revoking supervised release were clear.” See 

.

      Although the district court evaluated two potential violations—LeCroy

admitted to all violations of his supervised release conditions except the allegations

that he committed a theft and an assault—the only evidence concerning the theft,

which, unlike the alleged assault, ultimately served as a basis for the revocation,

came from McIllwain’s testimony. The record demonstrates that the court listened

closely to that testimony, clarifying parts of McIllwain’s testimony by asking

questions, and considered the parties’ arguments regarding the theft, interrupting

the government’s argument to clarify with LeCroy what his argument was. On its

own, the district court’s statement appears to be conclusory; however, when

considered in light of the evidence presented as to the theft, the record was

“sufficiently complete to advise the parties and the reviewing court of the reasons




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for the revocation of supervised release and the evidence the decision maker relied

upon.” See 

.

       Accordingly, we reject LeCroy’s argument that the district court erred in

failing to make a statement as to the evidence it relied upon and its reasons for

revoking LeCroy’s supervised release based on the court’s finding that LeCroy

committed a theft offense and the record evidence supporting that finding.

C.     The District Court Did Not Impose an Unreasonable Sentence.

       LeCroy also asserts that his sentence is both procedurally and substantively

unreasonable. As to procedural reasonableness, LeCroy contends that the district

court failed to properly calculate his guideline range because it erred in finding that

LeCroy had committed a new offense—the ATV theft. As to substantive

reasonableness, LeCroy argues the district court erred because his circumstances

had not materially changed from the time of his status conference and the court did

not provide time for its prior modifications to the terms and conditions of his

supervised release, specifically its mental health evaluation, to take effect before

imposing its sentence.6




       6
         LeCroy also argued that the court’s sentence was greater than necessary considering the
statutory sentencing factors. LeCroy asserted this argument only in one line of his brief.
Because a passing reference in a brief without substantive legal argument is insufficient to
preserve an issue, LeCroy has abandoned this argument. United States v. Jernigan, 

, 1283 n.8 (11th Cir. 2003).
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      Because we concluded that the district court did not err in finding that

LeCroy committed the ATV theft, we likewise conclude that the district court did

not err when it calculated his guideline range based on the inclusion of the ATV

theft. We thus only address LeCroy’s argument that his sentence was substantively

unreasonable.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard, considering the totality of the circumstances and the

sentencing factors set forth in § 3553(a). Gall v. United States, 

, 41

(2007). Under § 3553(a), the district court is required to impose a sentence

“sufficient, but not greater than necessary, to comply with the purposes” of

§ 3553(a)(2)—the need to reflect the seriousness of the offense; promote respect

for the law; provide just punishment; deter criminal conduct; protect the public

from the defendant’s future criminal conduct; and effectively provide the

defendant with educational or vocational training, medical care, or other

correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the

nature and circumstances of the offense, the history and characteristics of the

defendant, the kinds of sentences available, the applicable guideline range, the

pertinent policy statements of the Sentencing Commission, the need to avoid

unwarranted sentencing disparities, and the need to provide restitution to victims.

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      Although we do not automatically presume a within-guidelines sentence to

be reasonable, ordinarily we expect it to be. United States v. Asante, 

,

648 (11th Cir. 2015). That a sentence falls at the low end of the guideline range

and well below the statutory maximum are two indications of reasonableness. See

United States v. Cubero, 

, 898 (11th Cir. 2014).

      The party challenging a sentence bears the burden of proving the sentence is

unreasonable. United States v. Tome, 

, 1378 (11th Cir. 2010). A

district court imposes a substantively unreasonable sentence when it fails to afford

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

weight to an improper or irrelevant factor, or commits a clear error of judgment in

considering the proper factors. United States v. Irey, 

, 1189 (11th

Cir. 2010) (en banc); see United States v. Crisp, 

, 1292 (11th Cir.

2006) (explaining that a sentencing court’s “single-minded[ ]” focus on one factor

to the detriment of other relevant sentencing factors “is a symptom of an

unreasonable sentence” (internal quotation marks omitted)).

      Although generally the weight to be accorded any § 3553(a) factor is a

matter committed to the sound discretion of the district court, United States v.

Williams, 

, 1322 (11th Cir. 2008), a district court commits a clear

error of judgment when it “considers the proper factors but balances them

unreasonably” and imposes a sentence that “does not achieve the purposes of


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sentencing as stated in § 3553(a),” 

(internal quotation marks

omitted). We will vacate a 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

reasonable sentences dictated by the facts of the case.”

(internal

quotation marks omitted).

      The guideline range for a post-revocation sentence is based on the

classification of the conduct that resulted in the revocation and the criminal history

category applicable during the defendant’s original sentencing. See U.S.S.G.

§§ 7B1.1(a), 7B1.4(a); United States v. Campbell, 

, 134849 (11th

Cir. 2007). A Grade B violation for a defendant in criminal history category VI

results in a guideline range of 21 to 27 months’ imprisonment. U.S.S.G.

§ 7B1.4(a). Because the statutory maximum sentence was 24 months’

imprisonment based on LeCroy’s original offense, the resulting guideline range

was 21 to 24 months. See 18 U.S.C. § 3583(e)(3).

      LeCroy contends that there were no material changes between his initial

status conference, at which the district court ordered a mental health evaluation,

and his revocation hearing; thus, he argues, the sentence the district court imposed

was substantively unreasonable in light of his need for drug abuse treatment. We

disagree with LeCroy that there were no material changes between his status


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conference and revocation hearing and that the district court did not adequately

consider his need for drug treatment. LeCroy admitted to committing several

violations of his supervised release conditions, in addition to the ATV theft, at his

revocation hearing. Some of these violations, including that he used controlled

substances, failed to follow the instructions of his probation officer, and associated

with a known convicted felon, occurred after his initial status conference.

      Moreover, the district court’s decision to sentence LeCroy despite requesting

at his status conference a mental health evaluation for him was not an abuse of

discretion. The court heard arguments from both LeCroy and the government

regarding the § 3553(a) factors, including mitigating factors like LeCroy’s drug

addiction and mental health issues and aggravating factors like LeCroy’s

significant criminal history and disrespect for the law. The court’s choice to place

more weight on the nature and circumstances of the offenses and LeCroy’s

significant criminal history was within its sound discretion. See 

. Further, the sentence imposed was within the guideline range, which

we ordinarily expect to be reasonable, see 

. Also, the

district court’s initial sentence was for 21 months, at the bottom of the guideline

range, another indicator of reasonableness, 

. The district

court imposed a sentence at the statutory maximum, 24 months, only upon

LeCroy’s request that the court do so. Accordingly, we cannot conclude that the


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district court abused its discretion because the 24-month prison sentence was

procedurally and substantively reasonable.

      AFFIRMED.




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