Case: 13-10917 Date Filed: 12/16/2013 Page: 1 of 20
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`[DO NOT PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 13-10917
`Non-Argument Calendar
`________________________
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`D.C. Docket No. 1:12-cr-00362-CAP-1
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`UNITED STATES OF AMERICA,
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`versus
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`JAMES E. DAVIS,
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`Plaintiff-Appellee,
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`Defendant-Appellant.
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`________________________
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`Appeal from the United States District Court
`for the Northern District of Georgia
`________________________
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`(December 16, 2013)
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`Before HULL, JORDAN and FAY, Circuit Judges.
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`PER CURIAM:
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`[DO NOT PUBLISH]
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`
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 13-10917
`Non-Argument Calendar
`________________________
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`D.C. Docket No. 1:12-cr-00362-CAP-1
`
`
`UNITED STATES OF AMERICA,
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`versus
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`JAMES E. DAVIS,
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`Plaintiff-Appellee,
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`Defendant-Appellant.
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`________________________
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`Appeal from the United States District Court
`for the Northern District of Georgia
`________________________
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`(December 16, 2013)
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`Before HULL, JORDAN and FAY, Circuit Judges.
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`PER CURIAM:
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`Case: 13-10917 Date Filed: 12/16/2013 Page: 2 of 20
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`James Earl Davis appeals the district court’s revocation of his supervised
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`release and imposition of a 36-month sentence, pursuant to U.S.C. § 3583(e)(3).
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`After review, we affirm.
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`A.
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`Supervised Release
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`I. BACKGROUND
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`In 2007, Davis pled guilty to aiding and abetting bank fraud, in violation of
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`18 U.S.C. §§ 2 and 1344, and was sentenced to 63 months’ imprisonment and three
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`years of supervised release. Conditions of Davis’s supervised release included,
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`inter alia, prohibitions against: (1) leaving the judicial district without permission
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`of the court or the probation officer, and (2) opening new lines of credit without
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`approval of the probation officer, as well as requirements to: (3) truthfully answer
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`the probation officer’s inquiries and (4) follow the probation officer’s instructions.
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`After completing his prison term, Davis began his supervised release on
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`May 12, 2011. On October 15, 2012, Davis moved the district court (then the
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`Eastern District of Virginia) for permission to travel to Rhode Island to attend a
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`custody hearing for his child, whom he believed was being abused. His motion
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`stated that his probation officer had denied his requests. Davis attached a copy of
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`the summons from the Rhode Island family court for hearings on November 9,
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`2012, and January 15, 2013.
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`2
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`On October 31, 2012, the district court denied Davis’s motion to travel
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`without prejudice and transferred jurisdiction of Davis’s supervised release to the
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`Northern District of Georgia. On November 5, 2012, the district court in the
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`Northern District of Georgia denied Davis’s motion, “[a]fter carefully considering
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`[Davis’s] motion, together with consulting with the probation officer.”
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`B.
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`Petition for Revocation
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`On January 16, 2013, Davis’s probation officer, David Mitchell, petitioned
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`for Davis’s arrest and for revocation of his supervised release. The petition
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`alleged, inter alia, that Davis had obtained car loans without Officer Mitchell’s
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`approval (Charge 1), had travelled to Rhode Island on January 15, 2013 without
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`prior approval of the court or Officer Mitchell (Charge 3), and on December 3,
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`2012 had refused to answer Officer Mitchell’s questions, stating instead that he
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`was “a sovereign citizen” and did not recognize his federal sentence (Charge 4).1
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`Prior to the revocation hearing, Davis, although represented by counsel, filed
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`several pro se motions, including a motion to dismiss for lack of jurisdiction and a
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`motion asking the district court, Judge Charles Pannell, to recuse. Davis’s motion
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`to dismiss argued that the district court did not have jurisdiction over Davis
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`because he was a “Sovereign Citizen” who owned the “entity JAMES E DAVIS.”
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`Davis attached UCC Financing Statements that listed “JAMES EARL DAVIS JR.”
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`1The government did not pursue Charge 2, which alleged that Davis had failed to
`participate in mental health treatment.
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`3
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`as the debtor and James Earl Davis Jr. as the secured party. The motion to dismiss
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`asked the court several questions, including whether Judge Pannell had taken an
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`oath of office. The motion to recuse alleged that Judge Pannell had violated his
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`oath of office and had conspired with Officer Mitchell to violate Davis’s
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`constitutional rights.
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`C. Revocation Hearing
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`On March 1, 2013, the district court held a revocation hearing. At the
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`outset, the district court indicated that it had received mail from Davis, as a
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`“secured party,” most of which had also been included in Davis’s pro se motions.
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`The district court confirmed that, through his pro se motions, Davis wanted the
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`court to grant him a copyright over his name spelled in capital letters so Davis
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`could then prevent the court from using his name. The district court denied all of
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`Davis’s pro se motions.
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`The district court also denied Davis’s oral motion to discharge his appointed
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`counsel and represent himself, but agreed to let Davis proceed with “hybrid
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`representation.” When Davis asked the district court whether it had taken an oath
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`of office, the district court stated it was “not answering those questions” from
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`Davis’s pro se motions, finding that the questions were “frivolous” and intended
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`“to harass the Court.”
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`4
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`Davis denied Charges 1, 3, and 4. Over Davis’s hearsay objection, the
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`government introduced documents from an auto dealership indicating that a man
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`named James Earl Davis had purchased a 2007 BMW with financing from
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`Independent Bank. Many of the various documents listed James Earl Davis’s
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`residence as 5009 Galleon Crossing in Decatur, Georgia and contained a signature
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`of the buyer, James Earl Davis.
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`Among the documents were: (1) a signed title and tag application for the
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`BMW that listed James Earl Davis as the owner of the vehicle and Independent
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`Bank as the security/lien holder on the vehicle; (2) a certificate of title for the
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`BMW indicating it was last transferred from the dealership to James Earl Davis on
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`October 17, 2012 and signed by “James Earl Davis” as the buyer; (3) a bill of sale
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`indicating James Earl Davis purchased the BWM from the dealership on October
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`17, 2012 for $22,795 and signed by Davis as the buyer; (4) a “deal summary” and
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`a retail sales installment contract reflecting that James E. Davis had purchased the
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`BMW with a $1,600 cash down payment and had financed $22,795 at a 13.49%
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`interest rate; (5) a signed “DealerTrack” application for credit by James Davis to
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`purchase the BMW, which stated that Davis was employed at World Wide
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`Enterprise as a consultant making $4,000 a month; (6) an application status report
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`indicating that James Davis’s application for credit to buy the BMW was made to
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`Independent Bank; (7) a tax and tag receipt from the State of Georgia and a
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`5
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`verification of insurance from Progressive Insurance, both indicating that
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`Independent Bank was the lienholder on the BMW; and (8) a photocopy of a
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`driver’s license, the condition of which is so poor neither the writing nor the
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`picture can be seen.
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`The government called Brian Brooks, the employee at the dealership who
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`had prepared the car purchase documents. When asked whether he recognized
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`Defendant Davis as the man for whom he had prepared the documents, Brooks
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`said, “I imagine, yes, but it’s been awhile,” and added that he was not “a hundred
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`percent certain.” Brooks explained that he ordinarily made a copy of the buyer’s
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`driver’s license and ensured that it was for the person completing the forms.
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`Officer Mitchell testified that Davis obtained the loan to purchase the BMW
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`in October 2012 without first obtaining his approval. In November 2012, Officer
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`Mitchell and another probation officer met with Davis at his residence to discuss
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`the new lines of credit. Davis was hostile and would not cooperate. On December
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`3, 2012, Officer Mitchell again met with Davis to discuss the car loan and Davis’s
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`“overall attitude.” Davis stated that he was a “sovereign citizen” and would not
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`answer any questions unless Officer Mitchell first answered a questionnaire.
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`Officer Mitchell testified that he did not fill out Davis’s questionnaire because it
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`“[s]eemed a harassing technique.”
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`6
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`Officer Mitchell identified several documents containing Defendant Davis’s
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`signature, including Davis’s judgment and commitment and correspondence Davis
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`had sent to the Probation Office between September and November 2012. In a
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`September 5, 2012 letter to Officer Mitchell’s supervisor, Davis complained about
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`Officer Mitchell denying his request to travel to Rhode Island. The letter accused
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`Officer Mitchell of discriminating against Davis based on race and then retaliating
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`against Davis when Davis complained about the discrimination. The letter stated
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`that Davis had filed a civil rights lawsuit against Officer Mitchell, and attached a
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`copy stamped filed on June 12, 2012. Davis requested that the supervisor assign
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`him a new probation officer due to the conflict of interest.
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`In an October 15, 2012 letter to Officer Mitchell, Davis stated that he “did
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`not wish to do business with” Officer Mitchell and informed Officer Mitchell that
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`in future Officer Mitchell would be billed $500,000 for each time Officer Mitchell
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`used Davis’s name, which Davis claimed was copyrighted. Davis attached copies
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`of UCC Financing Statements, signed by Davis.
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`Davis also sent Officer Mitchell a “Notice and Demand,” notarized and
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`dated November 30, 2012, demanding that Officer Mitchell answer a series of
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`questions. This correspondence accused Mitchell of, among other things, violating
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`his oath of office and of discriminating against Davis.
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`Officer Mitchell testified that he first discussed with Davis his concerns
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`about his son’s safety in June 2012, after Davis had reported those concerns to the
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`Rhode Island police. Davis told Officer Mitchell that his son’s stepfather, who was
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`white, had used racial slurs about Davis’s son in a telephone call. Around that
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`time, Davis first asked Officer Mitchell if he could travel to Rhode Island. Later,
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`in January 2013, Davis filed his complaint in Rhode Island family court, alleging
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`that his son was being abused by his stepfather. A copy of Davis’s Rhode Island
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`complaint was admitted into evidence.
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`Davis subsequently made numerous requests for permission to travel to
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`Rhode Island to represent himself in family court. In their last conversation,
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`Officer Mitchell encouraged Davis to either obtain an attorney to represent him or,
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`if he represented himself pro se, to appear via teleconference or video conference.
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`Officer Mitchell stated that he never gave Davis permission to leave the district.
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`The government introduced a copy of a transcript showing that Davis appeared in
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`person at the January 15, 2013 hearing in Rhode Island.
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`After Davis did not report to Officer Mitchell as directed in December 2012
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`or February 2013, Davis was arrested. On February 27, 2013, a few days prior to
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`the revocation hearing, Officer Mitchell received correspondence from Davis,
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`entitled “Default Affidavit,” sent from the detention facility. This document
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`referenced Davis’s October and November 2012 letters and stated that Officer
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`Mitchell was in “default” and owed Davis $3,290,000 for violating Davis’s
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`constitutional rights.
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`In response to the district court’s questions, Officer Mitchell stated that
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`while under supervision, Davis resided with his mother at 5009 Galleon Crossing
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`in Decatur, Georgia. At the time, Davis was unemployed, on disability, and
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`receiving government assistance. Davis never reported to Officer Mitchell that
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`Davis was employed by Worldwide Enterprises as a consultant making $4,000 a
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`month. When Officer Mitchell contacted the building where the loan application
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`indicated Worldwide Enterprises was located, the manager told Officer Mitchell
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`that there was no such business.
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`Maddie Gaines, Davis’s mother, testified that when either she or Davis
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`called Davis’s son in Rhode Island, his stepfather would answer the telephone and
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`would use racial slurs against them and against Davis’s son. Davis introduced a
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`recording of one of these telephone conversations, which was played for the court.
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`Gaines said that the telephone conversation occurred in November 2012.
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`Gaines said that she was in the room when Davis called to ask if he could
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`appear telephonically in the Rhode Island family court. Gaines said Davis was told
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`that he had to appear in person. Upon the district court’s questioning, Gaines
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`admitted that the Rhode Island Juvenile Court Services investigated the home in
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`Rhode Island and gave a favorable report to the family court.
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`9
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`At the close of the evidence, Davis’s counsel indicated that Davis did not
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`dispute that he went to Rhode Island without permission to attend the hearing.
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`Davis’s counsel stressed that Davis had shown that his fears for his child in Rhode
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`Island were well-founded, the probation office had not taken Davis’s concerns as
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`seriously as it should have, and Davis had tried to appear at the Rhode Island
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`hearing telephonically. Davis’s counsel further stated that she did not have any
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`argument as to Charges 1 and 4, but noted, as mitigation, that Davis had complied
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`with his monthly reporting requirements and suffered from a seizure disorder.
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`D. District Court’s Findings and Sentence
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`The district court found that Davis had violated the conditions of supervised
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`release by opening lines of credit, leaving the district without permission, and
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`failing to truthfully answer Officer Mitchell’s questions at the December 3, 2012
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`meeting and instead harassing and obstructing Officer Mitchell.
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`The district court determined that Davis’s guidelines range was 8 to 14
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`months and that his statutory maximum prison term was 36 months. Davis asked
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`for a sentence at the low end of the guidelines range. As mitigating factors, Davis
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`pointed out that Davis: (1) “did not respond in any kind of violent manner”
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`regarding his son; (2) pursued the legal remedy suggested by his probation officer;
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`and (3) had asked to appear telephonically at the hearing, but was not allowed.
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`10
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`The district court imposed a 36-month sentence. As its reasons for the
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`sentence, the district court stated that Davis: (1) had “demonstrated that he has no
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`desire to abide by the terms of his supervised release”; (2) had “engaged in a
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`pattern of conduct to obstruct the probation officer and the Court”; and (3)
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`presented “a danger to the community by engaging in conduct to defraud creditors
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`by falsely listing Worldwide Enterprise as an employer to gain credit to buy this
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`automobile.” The district court noted that in the car loan documents, Davis had
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`listed Worldwide Enterprises as his employer making $4,000 a month, when the
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`evidence showed that was not true. The district court stated it “believe[d] that
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`[Davis], without further incarceration, will engage in similar conduct in the
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`future.”
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`Davis’s counsel objected to the length of the sentence and to the fact that
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`Davis had not been allowed to allocute. The district court then allowed Davis to
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`allocute. Among other things, Davis said he believed the sentence was excessive
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`given that he had tried to get permission from the probation office to leave the
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`district. The district court then re-imposed the 36-month sentence and repeated its
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`explanation for the sentence. Davis again objected to the length of the sentence.
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`II. DISCUSSION
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`A.
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`Sufficiency of the Evidence as to Charge 1
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`11
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`Davis argues that the district court’s finding that he opened a new line of
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`credit was not supported by substantial evidence. Under 18 U.S.C. § 3583(e), a
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`district court may revoke a defendant’s term of supervised release upon finding by
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`a preponderance of the evidence that the defendant violated a condition of
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`supervised release. 18 U.S.C. § 3583(e)(3). 2
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`Here, sufficient evidence supported the finding that Davis purchased a 2007
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`BMW by obtaining financing through the dealership and Independent Bank. The
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`government introduced numerous documents related to the purchase and financing
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`of the BMW in Davis’s name. Officer Mitchell testified that Davis did not get his
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`approval before applying for this line of credit with Independent Bank.
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`Davis contends that the government’s evidence did not show that he was the
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`James Earl Davis reflected in the documents. We disagree. Brian Brooks testified
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`that he believed Davis was the man for whom he prepared the car loan documents.
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`Although Brooks stated that he could not be “a hundred percent certain,” other
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`circumstantial evidence corroborated Brooks’s testimony that Defendant Davis
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`was the man who purchased the BMW with the car loan. First, the buyer James
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`Earl Davis’s personal information in the car purchase documents was the same as
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`2We ordinarily review a district court’s revocation of a supervised release term for an
`abuse of discretion, United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994), and the district
`court’s fact findings for clear error, United States v. Alamand, 992 F.2d 316, 318 (11th Cir.
`1993). During the revocation hearing, however, Davis objected to only the length of his sentence
`and not to the revocation of his supervised release or to the district court’s fact findings.
`Accordingly, we review for plain error. See United States v. Gresham, 325 F.3d 1262, 1265
`(11th Cir. 2003).
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`12
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`Defendant Davis’s information, such as his address at 5009 Galleon Crossing in
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`Decatur, Georgia and his date of birth. Second, the buyer James Earl Davis’s
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`signature appeared to match Defendant Davis’s signature.
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`The government introduced, and Officer Mitchell identified, the judgment
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`and commitment from Davis’s original conviction, as well as several letters sent
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`from Davis to the probation office, all of which were signed by Davis. This
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`evidence was sufficient to allow the district court to compare Davis’s known
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`signatures with the buyer’s signatures on the car purchase documents. Moreover,
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`the signatures of the car buyer James Earl Davis appear to be very similar, if not
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`identical, to the known signatures of Defendant Davis. This evidence was
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`sufficient to support a finding that Defendant Davis completed the paperwork to
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`obtain the loan and purchase the car. Under these circumstances, the district court
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`did not err, much less plainly err, in finding that Davis opened a new line of credit
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`in violation of his supervised release condition.
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`B.
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`First Amendment Claim as to Charge 3
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`For the first time, Davis argues that the district court’s finding that Davis
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`violated a condition of supervised release by leaving the district to attend the
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`family court hearing in Rhode Island infringed his First Amendment right to access
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`13
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`to the courts.3 Because Davis did not raise his constitutional argument at his
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`revocation hearing, our review is limited to plain error. See Gresham, 325 F.3d at
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`1265. Under this standard, Davis must show that: “(1) an error occurred; (2) the
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`error was plain; (3) it affected his substantial rights; and (4) it seriously affected
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`the fairness of the judicial proceedings.” Id. Here, even assuming arguendo that
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`Davis could satisfy the first prong of the plain error test, he has not shown either
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`that the alleged error was plain or that it affected his substantial rights.
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`First, Davis does not cite any Supreme Court or Eleventh Circuit precedent
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`establishing that a finding of a violation of supervised release in the circumstances
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`Davis presented would impermissibly infringe a defendant’s right to court access.
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`“It is the law of this circuit that, at least where the explicit language of a statute or
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`rule does not specifically resolve an issue, there can be no plain error where there
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`is no precedent from the Supreme Court or this Court directly resolving it.” United
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`States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
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`Davis cites Ex Parte Hull, but that case is not like Davis’s case and does not
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`establish plain error. In Ex Parte Hull, the Supreme Court invalidated a state
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`prison regulation that required prisoners to submit their court pleadings to prison
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`officials to determine if they were “properly drawn.” The Supreme Court
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`3Contrary to the government’s contentions, Davis’s counseled brief does not challenge
`either his original travel condition or the denial of his travel request. Rather, Davis argues only
`that, given the circumstances, the district court’s finding at the revocation hearing that Davis
`violated the travel condition infringed his constitutional right to court access.
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`concluded that the prison regulation abridged a habeas petitioner’s right to apply to
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`federal court. Ex Parte Hull, 312 U.S. 546, 548-49, 61 S. Ct. 640, 641-42 (1941).
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`Ex Parte Hull did not involve a district court’s finding that a defendant on
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`supervised release had violated a standard travel condition to prosecute a family
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`court petition and thus does not “directly resolv[e]” the issue presented here.
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`In any event, Davis cannot demonstrate that he was prejudiced by the
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`alleged error. “An error that affects substantial rights is one that affected the
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`outcome of the district court proceedings.” United States v. Henderson, 409 F.3d
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`1293, 1308 (11th Cir. 2005) (internal quotation marks omitted). To show
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`prejudice, the defendant must show “a reasonable probability of a different result.”
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`United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). Davis cannot
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`meet this standard because any single Grade C violation can be the basis for
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`revoking a term of supervised release and imposing a prison term. See U.S.S.G.
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`§§ 7B1.3(a)(2), 7B1.4(a).
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`Charges 1, 3, and 4 are all Grade C violations. See U.S.S.G.
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`§ 7B1.1(a)(3)(B). The district court found that in addition to violating the travel
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`condition (Charge 3), Davis violated two other conditions by opening lines of
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`credit (Charge 1) and failing to answer his probation officer’s questions (Charge
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`4). Thus, each violation provided a sufficient basis for revoking Davis’s
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`supervised release and imposing a sentence. See United States v. Brown, 656 F.2d
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`15
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`1204, 1207 (5th Cir. 1981) (providing that where there is a sufficient ground to
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`justify revocation, we need not consider possible error in the other grounds).4
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`Davis has not pointed to any evidence that, absent the finding that Davis violated
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`the travel condition (Charge 3), the district court would not have revoked his
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`supervised release and imposed a 36-month prison term.
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`Davis does not challenge the district court’s finding with respect to Charge
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`4, and his challenge to the district court’s finding as to Charge 1 lacks merit for the
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`reasons discussed above. Thus, the district court’s decision to revoke Davis’s
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`supervised release term is sufficiently supported by its findings that Davis was
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`guilty of Charges 1 and 4. In addition, the district court, in explaining its decision
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`to impose an upward variance, focused on Davis’s conduct related to Charges 1
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`and 4 and did not mention Davis’s unauthorized travel outside the district,
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`suggesting that Charge 3 was not a significant factor in Davis’s sentence.
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`C. Reasonableness of Davis’s 36-month Sentence
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`Before imposing a prison term upon revocation, the district court must
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`consider certain factors in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e).5 The
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`4In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
`adopted as binding precedent all decisions of the former Fifth Circuit decided on or before
`September 30, 1981.
`5Specifically, in a revocation proceeding, the relevant factors the district court must
`consider are: (1) the nature and circumstances of the offense and the history and characteristics
`of the defendant; (2) the need for the sentence imposed to afford adequate deterrence, protect the
`public, and provide the defendant with needed educational or vocational training and medical
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`district court also must consider the policy statements in Chapter 7 of the
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`Sentencing Guidelines, which provide recommended, non-binding ranges of
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`imprisonment. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).
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`“We review the sentence imposed upon revocation of supervised release for
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`reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252
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`(11th Cir. 2008). Our reasonableness review applies the deferential abuse of
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`discretion standard. Gall v. United States, 552 U.S. 38, 41, 46, 128 S. Ct. 586,
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`591, 594 (2007). In reviewing for reasonableness, we first consider whether the
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`district court committed any significant procedural error and then whether the
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`sentence is substantively unreasonable in light of the relevant § 3553(a) factors and
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`the totality of the circumstances. United States v. Pugh, 515 F.3d 1179, 1190 (11th
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`Cir. 2008).6 The party challenging the sentence has the burden to show it is
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`unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
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`If the district court decides to impose an upward variance, “it must ‘consider
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`the extent of the deviation and ensure that the justification is sufficiently
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`compelling to support the degree of the variance.’” United States v. Williams, 526
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`F.3d 1312, 1322 (11th Cir. 2008) (quoting Gall, 552 U.S. at 50, 128 S. Ct. at 597).
`
`
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`care: (3) the Sentencing Guidelines range and pertinent policy statements of the Sentencing
`Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide
`restitution. See 18 U.S.C. § 3582(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),
`(a)(4)-(7)).
`6Davis does not raise any procedural error with respect to his sentence.
`17
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`Case: 13-10917 Date Filed: 12/16/2013 Page: 18 of 20
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`However, we will vacate such a sentence “only if we are left with the definite and
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`firm conviction that the district court committed a clear error of judgment in
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`weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
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`of reasonable sentences dictated by the facts of the case.” United States v. Shaw,
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`560 F.3d 1230, 1238 (11th Cir. 2009) (internal quotation marks omitted).
`
`
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`Davis has not shown that his 36-month sentence is substantively
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`unreasonable. The parties agree that, with a Grade C violation and a criminal
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`history category of VI, Davis’s recommended guidelines range under Chapter 7
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`was 8 to 14 months. See U.S.S.G. § 7B1.4(a). Because Davis’s underlying
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`offense of bank fraud was a Class B felony, Davis’s statutory maximum prison
`
`term upon revocation was three years. See 18 U.S.C. § 3583(e)(3).
`
`The district court concluded that an upward variance to the statutory
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`maximum of 36 months was warranted because: (1) Davis had engaged in a pattern
`
`of conduct to obstruct the probation officer and the court; and (2) Davis posed a
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`danger to the public because he had “engag[ed] in conduct to defraud creditors” by
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`falsely listing his employment and income on the car loan application. The record
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`amply supports the district court’s reasons for the variance.
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`In addition to his underlying bank fraud offense, Davis has an extensive
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`criminal history of fraud involving falsifying identification and cashing counterfeit
`
`or forged checks. At the revocation hearing, the government presented evidence
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`
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`18
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`Case: 13-10917 Date Filed: 12/16/2013 Page: 19 of 20
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`that Davis falsely indicated on his car loan application that he was employed at
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`Worldwide Enterprises as a consultant making $4,000 per month. In fact, no such
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`company existed, and Davis was actually unemployed and receiving disability
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`benefits. Based on Davis’s history of fraud and the evidence that he had engaged
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`in further fraud with creditors while on supervised release, the district court
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`permissibly concluded that Davis was likely to engage in such behavior again and
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`that it needed to protect the public from Davis. See U.S.S.G. § 7B1.4, cmt. n.3
`
`(explaining that when the Grade C violation “is associated with a high risk of new
`
`felonious conduct, . . . an upward departure may be warranted”).
`
`With respect to Davis’s obstructive conduct, the record reflects that Davis
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`sent harassing letters to Officer Mitchell and the officer’s supervisor. These letters
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`accused Officer Mitchell of racial discrimination and unlawful retaliation,
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`threatened to bill Mitchell for using Davis’s name on any documents, and
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`demanded that Mitchell fill out a questionnaire that insinuated that Mitchell was
`
`violating his oath of office and discriminating against Davis. At the revocation
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`hearing, the district court indicated that Davis sent a similar questionnaire to the
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`court, which the district court found was frivolous and meant to harass. Davis also
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`sent correspondence to Mitchell stating that Mitchell owed Davis $3,290,000 for
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`violating Davis’s constitutional rights.
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`
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`19
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`Case: 13-10917 Date Filed: 12/16/2013 Page: 20 of 20
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`In addition, Davis was hostile towards Officer Mitchell on more than one
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`occasion and would not answer Mitchell’s questions. Davis also failed to report on
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`two occasions when instructed to do so by Mitchell.
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`Under the totality of the circumstances, we cannot say the district court’s
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`decision to impose a 36-month sentence was an abuse of discretion.
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`AFFIRMED.
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`
`20
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