United States v. Ashley Lamar Lindsey, 11th Cir. (2016)

Case: 15-15081
Date Filed: 05/13/2016
Page: 1 of 7
[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15081
Non-Argument Calendar
________________________
D.C. Docket No. 3:13-cr-00085-MMH-JBT-1
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
ASHLEY LAMAR LINDSEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 13, 2016)
Before MARCUS, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
Ashley Lindsey appeals her statutory maximum, two-year sentence, imposed
above the guideline range, after the district court revoked her supervised release.
Case: 15-15081
Page: 2 of 7
In 2013, a federal grand jury returned an indictment against Lindsey, charging her
with one count of theft of government property, in violation of 18 U.S.C. 641.
Pretrial, while released on bond, Lindsey violated the conditions of her release four
times, by testing positive for marijuana three times, and failing to report for
urinalysis testing as scheduled. The court modified the terms of her release to
include a requirement that she undergo a substance abuse evaluation and treatment
program, but did not revoke her bond. Lindsey then pleaded guilty to the charges
in the indictment, but prior to sentencing, she violated the conditions of bond again
by testing positive for marijuana at least five times, and eventually the court
revoked her bond.
Lindsey was then sentenced to 36 months probation, and less than a year
later, she was arrested and admitted to five probation violations, including her use
of marijuana. The court revoked her probation, sentencing her to six months
imprisonment, followed by two years of supervised release, with conditions that
she participate in mental health and substance abuse treatment programs, and that
she perform 50 hours of community service. Lindsey was released from prison in
December 2014, but nine months later, was charged with violating the terms of her
supervised release, for testing positive for marijuana and for failing to participate
in required drug treatment sessions. At the final revocation hearing, Lindsey
admitted violating her supervised release as alleged in the petition for revocation.
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Case: 15-15081
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The court determined that the guidelines recommended a sentence of three to nine
months imprisonment, with a statutory maximum of two years, and imposed a
sentence of two years imprisonment. On appeal, Lindsey argues that her sentence
after revocation of supervised release was substantively unreasonable.
After
thorough review, we affirm.

We review a sentence imposed upon the revocation of supervised release for
reasonableness, United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008),
which merely asks whether the trial court abused its discretion, United States v.
Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551
U.S. 338, 351 (2007)). We also review a district courts decision to exceed the
advisory sentencing range in Chapter 7 of the Sentencing Guidelines, U.S.S.G.
7B1.4, for abuse of discretion. United States v. Silva, 443 F.3d 795, 798 (11th Cir.
2006).
The party challenging the sentence bears the burden to show it is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Under the Sentencing Guidelines, a court may revoke supervised release
upon a finding of a Grade C violation of the conditions of supervised release.
U.S.S.G. 7B1.3(a)(2). A Grade C violation is any conduct constituting (A) a
federal, state, or local offense punishable by a term of imprisonment of one year or
less; or (B) a violation of any other condition of supervision.
U.S.S.G.
7B1.1(a)(3). The application notes following 7B1.3 state that revocation of

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Case: 15-15081
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supervised release is generally the appropriate disposition in the case of a Grade C

violation by a defendant who, having been continued on supervision after a finding
of violation, again violates the condition of [her] supervision. U.S.S.G. 7B1.3,
n.1.
The guidelines provide that the applicable guideline range following
revocation of supervised release for a Grade C violation and a Criminal History

Category of I is three to nine months imprisonment. U.S.S.G. 7B1.4(a).
In reviewing sentences for reasonableness, we typically perform two steps.
Pugh, 515 F.3d at 1190. First, we ensure that the district court committed no
significant procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence -- including an explanation for any
deviation from the Guidelines range. Id. (quoting Gall v. United States, 552 U.S.
38, 51 (2007)). 1 In determining whether to modify or revoke supervised release
after a defendant violates a condition of supervised release, a court must consider
the 3553(a) factors, including: (1) the nature and circumstances of the offense;
The 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) 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; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. 3553(a).
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Case: 15-15081
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(2) the history and characteristics of the defendant; (3) the need for the sentence to
reflect the seriousness of the offense, promote respect for the law, and provide just
punishment for the offense; and (4) the kinds of sentences and sentencing range
established by the Guidelines, and in the case of a violation of supervised release,
the applicable Guidelines or policy statements issued by the Sentencing
Commission. 18 U.S.C. 3583(e) (cross-referencing 18 U.S.C. 3553(a)(1),
(a)(2)(B)-(D), (a)(4)-(7)).
If we conclude that the district court did not procedurally err, we consider
the substantive reasonableness of the sentence imposed under an abuse-ofdiscretion standard, based on the totality of the circumstances. Pugh, 515
F.3d at 1190 (quoting Gall, 552 U .S. at 51). [W]e will not second guess the
weight (or lack thereof) that the [court] accorded to a given [ 3553(a)] factor ... as
long as the sentence ultimately imposed is reasonable in light of all the
circumstances presented. United States v. Snipes, 611 F.3d 855, 872 (11th Cir.
2010) (quotation, alteration and emphasis omitted). We may conclude there was
an abuse of discretion if the district court (1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) commits a clear error of judgment in balancing
the sentencing factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)
(en banc). The district courts unjustified reliance on any one 3553(a) factor may
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Case: 15-15081
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be a symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285,

1292 (11th Cir. 2006). A sentencing court need not discuss each 3553(a) factor
individually. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
But where a district court imposes an upward variance based upon the 3553(a)
factors, it must have a justification compelling enough to support the degree of the
variance. United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012). A
sentence outside the guidelines carries no presumption of unreasonableness.
Irizarry v. United States, 553 U.S. 708, 714-16 (2008).
We are unpersuaded by Lindseys claim that her two-year sentence -- above
the guideline range and at the statutory maximum -- was substantively
unreasonable. For starters, Lindseys sentence is not presumptively unreasonable
because it was imposed above the guideline range. Moreover, the district court
expressed compelling reasons for imposing a higher sentence. Specifically, the
court said that it imposed the statutory maximum sentence because it was
concerned by Lindseys repeated violations of her probation, and then supervised
release, her lack of respect for the court, and her unwillingness to conform her
conduct to the law. Not only did the court consider Lindseys actions, particularly
in light of how frequently she tested positive for marijuana, but also the
circumstances of her violations and her personal history -- including the fact that
the court had previously revoked her probation and sentenced her to six months
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Case: 15-15081
imprisonment, hoping that would be enough.
Page: 7 of 7
The court further noted that
Lindsey had no willingness to participate in her mental health or drug treatment.

The court concluded that another guideline sentence of 3 to 9 months . . . would
[not] accomplish any of the purposes of sentenc[ing]. . . [T]he full two-year
sentence is not only warranted, but entirely necessary in this case.
Finally, while Lindsey argues that Grade C violations, like the ones here, do
not support her two-year sentence, the guidelines application notes state that
revocation of supervised release is generally the appropriate disposition in the
case of a Grade C violation by a defendant who, having been continued on
supervision after a finding of violation, again violates the condition of [her]
supervision. U.S.S.G. 7B1.3, n.1. As the record reveals, Lindsey repeatedly
violated the conditions of her release, even after those conditions were modified.
Accordingly, we affirm Lindseys sentence.
AFFIRMED.

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Case: 15-15081

Date Filed: 05/13/2016

[DO NOT PUBLISH]

UNITED STATES OF AMERICA,

Date Filed: 05/13/2016

Date Filed: 05/13/2016

thorough review, we affirm.

The party challenging the sentence bears the burden to show it is

7B1.1(a)(3). The application notes following 7B1.3 state that revocation of

Date Filed: 05/13/2016

supervised release is generally the appropriate disposition in the case of a Grade C

The guidelines provide that the applicable guideline range following

revocation of supervised release for a Grade C violation and a Criminal History

Date Filed: 05/13/2016

Date Filed: 05/13/2016

be a symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285,

Date Filed: 05/13/2016

imprisonment, hoping that would be enough.

The court further noted that

Lindsey had no willingness to participate in her mental health or drug treatment.

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