USA v. Derrick Hankerson, No. 06-11712 (11th Cir. 2006)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 06-11712 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT December 1, 2006 THOMAS K. KAHN CLERK D. C. Docket No. 98-00210-CR-T-24-MSS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DERRICK HANKERSON, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (December 1, 2006) Before TJOFLAT, DUBINA and CARNES, Circuit Judges. PER CURIAM: In August 1998, pursuant to a plea agreement, Derrick Hankerson pled guilty to one count of conspiring to violate 21 U.S.C. § 841(a) by distributing cocaine base or possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 846. The district court sentenced him to a prison term of 92 months, followed by a five-year term of supervised release. On February 2, 2006, Hankerson was arrested for violating the terms of his supervised release, and on February 14, the district court held a final revocation hearing. The court found that he had violated the terms of his release and sentenced him to a prison term of 60 months. He now appeals, contending that the district court abused its discretion in revoking his supervised release because there was not sufficient evidence to support a finding that he had willfully attempted to sell cocaine because: (1) the state dropped the drug charge; (2) he denied selling cocaine, though admitting that he attempted to sell marijuana; and (3) the confidential informant the police had used had a history of crimes of dishonesty. We review a district court s revocation of supervised release under an abuse of discretion standard. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). Under § 3583(e), the court may revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute . . . if the court . . . finds by a preponderance of the evidence that the defendant violated a condition of [his] supervised release. 18 U.S.C. § 2 3583(e)(3). The preponderance standard does not relieve the sentencing court of the duty of exercising the critical fact-finding function that has always been inherent in the sentencing process. . . Preponderance of the evidence is not a high standard of proof. It is not, however, a toothless standard either. United States v. Askew, 193 F.3d 1181, 1183 (11th Cir. 1999). The district court did not abuse its discretion in revoking Hankerson s supervised release because the testimony of the investigating detective was sufficient to establish by a preponderance of the evidence that Hankerson had committed a cocaine trafficking violation. Hankerson contends that under the 18 U.S.C. § 3553(a) sentencing factors, his sentence was unreasonable because the court based it on a Grade A violation, when he only committed a Grade C violation. When imposing a sentence after revocation, the district court must consider the § 3553 factors including: (1) the nature and circumstances of the offense; (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. United States v. Sweeting, 437 F.3d 1105, 1106 -07 (11th Cir. 2006). Section 3 3583(e)(3) prohibits a sentence of more than 5 years in prison, if the offense that resulted in the term of supervised release is a class A felony. 18 U.S.C. § 3583(e)(3). As we cannot fault the court s determination that Hankerson committed a class A felony, and the court properly considered the § 3553(a) factors, the sentence the court imposed is due to be, and is, AFFIRMED. 4
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