United States v. Magloire

• Decision Date: 25 November 2022
• Docket Number: 22-10439
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KORETSKY MAGLOIRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KORETSKY MAGLOIRE, Defendant-Appellant.

No. 22-10439

United States Court of Appeals, Eleventh Circuit

November 25, 2022

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:18-cr-20930-RS-1

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Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

Koretsky Magloire appeals the district court's revocation of his supervised release and the revocation issuance of a sentence of two years' imprisonment followed by one year of supervised release, instead. He argues that the district court abused its discretion in revoking his supervised release because there was insufficient evidence to find him guilty of attempted burglary, in denying his motion for a continuance, and in pronouncing an allegedly procedurally and substantively unreasonable sentence after his supervised release was revoked. After review, we affirm.

I. Background

On January 3, 2019, Magloire pleaded guilty to possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count 1), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Count 2). The district court sentenced Magloire to two years' and one day imprisonment, followed by three years on supervised release. The conditions of Magloire's supervised release included prohibitions on the commission of other crimes, possession or use of a controlled substance, failing to comply with drug testing, and failing to work regularly unless excused from doing so.

Magloire was released from prison and began his term of supervised release on June 24, 2020. On July 12, 2021, the

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probation office filed a petition seeking a warrant and the revocation of Magloire's supervised release. The petition alleged that Magloire violated the terms of his supervised release by committing attempted burglary of an unoccupied structure (Violation 1); by committing misdemeanor criminal mischief (Violation 2); by possessing or using a controlled substance (Violation 3); by attempting to use an adulteration device to avoid detection of illegal drug use (Violation 4); and by failing to follow his probation officer's instruction to provide a completed job search log (Violation 5). Prior to his first supervised release revocation hearing, Magloire admitted to Violations 3 through 5.

A supervised release revocation hearing was held on August 30, 2021. In that hearing, the government proffered, and the district court entered into evidence, four Ring video "snippets" of what the government argued was an attempted burglary of an apartment by Magloire on June 27, 2021. In the video footage, a man with a blue ski mask covering his face is shown approaching apartment 2709 and pushing and shoving on the door. He then tries to insert an object into the door seal in an attempt to open the door. He then smears a liquid substance over the Ring camera lens, which obscures the view.

The government called Officer Jose Gutierrez, who testified as follows. On June 27, 2021, he encountered Magloire at the apartment complex, who told Officer Gutierrez that he was at apartment 2709 to visit a friend named Sabrina. Magloire said that he had keys for the elevator and the apartment. However,

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Magloire did not have anything "that matched the actual key fob for the elevator or the apartment." Officer Gutierrez spoke to the person Magloire claimed to be "Sabrina" on the phone, and she said she lived in apartment 2708. But the apartment Magloire was trying to enter was apartment 2709. Officer Gutierrez contacted the owner of apartment 2709, who said that Sabrina was his "exgirlfriend" or his "ex-wife" and that he had not given her permission to enter the apartment. Officer Gutierrez identified a small screwdriver that was found on Magloire's person when he was detained.

The government also called Sergeant Shawntel Kirkland, who testified as follows. She arrived at the apartment alongside Officer Gutierrez. She spoke with Magloire, who admitted that he did not live in the apartment complex, but he stated that he had been there earlier at his friend's apartment. He stated his friend's apartment number which "began with 27," but the unit he identified was not the unit he was seen trying to enter. The sergeant discovered a blue ski mask in Magloire's car that matched the mask the suspect wore in the Ring video footage.

Magloire testified in his own defense as follows. On June 27, 2021, he went to see Sabrina at apartment 2709 "at her request." When he arrived, Sabrina did not answer her phone or the apartment door. He then tried to open the apartment with the key Sabrina had given him. He had been to the apartment before, as Sabrina was "go[ing] out with [his] friend . . . Kamal." Unsuccessful, Magloire went to leave, but Sabrina called and told

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him to wait for her, so he walked back towards the apartment. Then, an officer stopped Magloire and asked him if he lived there. After Magloire told the officer that he did not live there but that he was on the phone with the person that lived there, the officer told him that he was being detained. He told the officer that he was "doing nothing wrong."

Magloire admitted that he was the individual in the Ring camera footage, but he maintained that he did not try to break into the apartment, that the screwdriver was not in his pocket but was in a "Mercedes pouch" that he had, and that if given additional time he could get Kamal and Sabrina to come to court to testify in his favor. When asked why he was wearing a mask in the video footage, Magloire testified that he bought it from a 7-Eleven, but that he "didn't have it on."^[1] Magloire stated that his key did not work because he did not know that Kamal had changed the lock on the apartment door after losing his keys. He further claimed that he knocked on the door, but when no one answered, he "tr[ied] to push it so [Sabrina] could hear" him.^[2] He stated that it "makes no sense" for him to try and burglarize his friend, especially because he was on "probation."

On cross-examination, Magloire testified that he learned of the date of the supervised release revocation hearing "[l]ast

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week." Yet, he did not contact Sabrina or Kamal about testifying on his behalf. When asked separately if the Ring footage showed him putting a substance on the camera and whether the screwdriver was his, Magloire responded, "[o]kay," to each question.

Following Magloire's testimony, his counsel asked for a continuance so that he could investigate the case further, and the district court denied the motion.

The district court made several findings. It stated that Magloire admitted that he was in the video and that he was clearly wearing a "total mask," not a mask for COVID-19 purposes.^[3] It found credible Sergeant Kirkland's testimony about where the mask was found. It found that Magloire was "obviously" pushing into apartment 2709 and "using the screwdriver to get in," so there was "no question" Magloire attempted to burglarize the apartment. It stated that, whether or not Magloire knew Sabrina and whether or not he attempted to burglarize the wrong apartment, "it is clear that the person did not consent" to the attempted burglary. The court further stated that one video "clearly shows that Mr. Magloire threw a substance, some sort of substance to obstruct the camera, which also shows intent." Accordingly, the district court determined that

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Magloire was guilty of attempted burglary (Violation 1), but not guilty of criminal mischief (Violation 2).

Based on the violations and Magloire's criminal history category of III, the guidelines range was 8 to 14 months' imprisonment. The government deferred to the probation officer's recommendation of 12 months' imprisonment followed by 2 years of supervised release. Magloire requested a sentence at the low end of his guidelines range with no additional term of supervised release. Magloire again denied that he was trying to break into the apartment, although he acknowledged that the video "look[ed] bad."

Regarding the 18. U.S.C. § 3553(a) sentencing factors, the district court stated that it was "very concerned" by Magloire's denial. It found that he "ha[d] obstructed justice by plain lying," as the video left "no question" that he intended to break into the apartment, that he used a mask and screwdriver to do so, and that he continued to deny those facts despite admitting that the video looked bad. It stated that it "ha[d] to protect the public[,] . . . including the individuals in that residence of the apartment complex" and emphasized that "[e]very man's home is his castle." For those reasons and "because of no acknowledgement of wrongdoing," the district court revoked Magloire's supervised release, applied an upward variance, and sentenced him to three years' imprisonment.

Magloire asked if he could "make the person show up in court," but the district court explained that it denied his

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continuance because the video was "so clear" that calling his friend would not "do any good." Magloire objected to the upward variance. The probation officer then notified the court that the statutory maximum sentence was two years' imprisonment, not three, so the district court vacated its oral sentence, instructed the parties to file memorandums on the sentencing issue, and scheduled a new hearing.

At the second hearing, Magloire's counsel urged the court to show mercy and consider the fact that Magloire was only 25 years' old, had two minor children to support and another baby on the way, and had a mother in Haiti who he also supported financially. Magloire personally apologized to the court for being "selfish" and "getting in trouble," and stated that he "wanted to do better." He explained that at the first hearing, he had been in denial about the fact that he had violated supervised release,...