[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 15, 2010
No. 10-10998 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:07-cr-00289-CLS-PWG-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
CANDRIA TACOMA LEWIS,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(October 15, 2010)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Candria Lewis appeals her 36-month sentence, imposed for violating the
conditions of her supervised release. Lewis does not challenge the revocation of
her supervised release but argues that the district court abused its discretion when
sentencing her to the statutory maximum of thirty-six months’ imprisonment when
her guideline range was three to nine months. She argues that the explanation
provided by the district court for the deviation from the applicable guideline range
was insufficient in light of the record and the 18 U.S.C. § 3553(a) factors,
although she concedes the district court did properly calculate the guideline range.
Lewis also contends that the district court did not properly consider the § 3553(a)
factors, and the upward variance was not necessary.
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006). Whether the sentence is reasonable is determined under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007). A sentence
may be procedurally unreasonable if the sentencing court fails to calculate the
advisory guideline range accurately, treats the sentencing guidelines as mandatory,
bases the sentence on clearly erroneous facts, fails to consider the sentencing
factors, or fails to explain the chosen sentence adequately. Id. at 51. When
revoking a defendant’s term of supervised release, 18 U.S.C. § 3583(e) instructs
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courts to consider certain § 3553(a) sentencing factors to determine an appropriate
sentence.1 Once we have determined that the sentence is procedurally reasonable,
we will consider the substantive reasonableness of the sentence under the totality
of the circumstances. Id. at 46. The analysis includes “examining the totality of
the circumstances, including an inquiry into whether the statutory factors in §
3553(a) support the sentence in question.” United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008).
Lewis first argues that her sentence is procedurally unreasonable because
the district court did not adequately explain its reason for deviating upward from
the guidelines range. We review the district court’s decision to exceed the
advisory sentencing range in Chapter 7 of the sentencing guidelines for an abuse
of discretion. United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006). The
policy statements of Chapter 7 are merely advisory and not binding, and while the
district court is required to consider the policy statements, it is not bound by them.
Id. at 799. When exceeding the recommended range, the court must indicate that
1
Specifically, courts are directed to consider: (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant,” (2) the need for the sentence
imposed to (a) “afford adequate deterrence to criminal conduct,” (b) “protect the public from
further crimes of the defendant,” and (c) provide the defendant with training, medical care, or
other correctional treatment; (3) applicable guidelines or policy statements issued by the
Sentencing Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need
to provide restitution to victims. See 18 U.S.C. §§ 3583(e) and 3553(a)(1), (a)(2)(B)-(D), &
(a)(4)-(7).
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it considered the Chapter 7 policy statements. Id. Here, it is clear from the record
that the district court was aware of and considered the Chapter 7 policy statements.
Lewis has not shown that the court committed any error in its consideration of the
§ 3553(a) factors, and Lewis concedes that the district court did not improperly
calculate the advisory guideline range. Consequently, we conclude that her
sentence is procedurally reasonable.
We also affirm her sentence as substantively reasonable. Lewis argues that
the 36-months’ statutory maximum sentence was excessive and that the district
court’s review of the § 3553(a) factors did not justify this sentence. The district
court’s comments, however, demonstrate its rationale for Lewis’s longer sentence
to be based significantly on the goal of rehabilitation as reflected in its
recommendation for her placement in a 500-hour drug treatment and therapy
program and also that she be considered for vocational training.2 This circuit has
previously held that a district court’s consideration of “the availability of drug
treatment in imposing a sentence exceeding that recommended by chapter seven of
the Guidelines” was not an abuse of discretion even where the court imposed the
2
The court also considered the availability of medical treatment for Lewis’s high-risk
pregnancy when imposing the statutory maximum 36-month sentence, although we do not see
how a 36-month sentence accomplished that goal any more than would the nine-month sentence
she requested where she was already five months pregnant at the time of sentencing.
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statutory maximum sentence. United States v. Wiggins, 220 F.3d 1248, 1249 (11th
Cir. 2000).
AFFIRMED.
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