[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14783 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 10, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:06-cr-00146-WKW-SRW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ALEX TYRONE MCNAIR,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(June 10, 2011)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Alex McNair appeals his 24-month above-guidelines sentence, imposed
under 18 U.S.C. § 3583(e)(3) after he tested positive for controlled substances in
violation of his supervised release. McNair argues that the district court abused its
discretion and that the sentence is substantively unreasonable. He asserts that his
violation of supervised release was the lowest offense level violation, and that the
seriousness of the violation and just punishment for it can be reflected without the
upward variance. Also, he argues that Probation did not recommend the maximum
sentence under the guidelines, so there is room within the guidelines to accomplish
the goal of promoting respect for the law. Additionally, McNair contends he
would be adequately punished and deterred with a within-guidelines sentence,
because such a sentence would cause him to miss his daughter’s graduation and let
down his family. Finally, he avers there is no evidence to show that he is any
threat to the public.
A sentence imposed upon revocation of supervised release is reviewed for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006). We review the reasonableness of a district court’s decision to exceed the
advisory sentencing range set forth in U.S.S.G. § 7B1.4 for an abuse of discretion.
United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006).
“The review for substantive unreasonableness involves 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,
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550 F.3d 1319, 1324 (11th Cir. 2008). “[T]he party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
both [the] record and the factors in section 3553(a).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). “The weight to be accorded any given § 3553(a)
factor is a matter committed to the sound discretion of the district court.” United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotations and alteration
omitted). We will vacate a sentence only if “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc), petition for cert. filed, (U.S. Nov. 24,
2010) (No. 10-727) (quotation omitted).
When sentencing a defendant upon revocation of supervised release
pursuant to 18 U.S.C. § 3583(e), a district court must 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 afford adequate deterrence to criminal
conduct, to protect the public from further crimes of the defendant, and to provide
the defendant with training, medical care, or correctional treatment; (3) the
Sentencing Guidelines’ range; (4) pertinent Sentencing Commission policy
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statements; (5) the need to avoid unwarranted sentencing disparities among
similarly situated defendants with similar records; and (6) the need to provide
restitution to victims. See 18 U.S.C. § 3583(e) (providing that the court must
consider the sentencing factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),
and (a)(4)-(7) when sentencing a defendant upon revocation of supervised
release); 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7)). If the original
sentence was a result of a downward departure, then an upward departure may be
warranted. U.S.S.G. § 7.B1.4 cmt. n.4.
For a class C felony like McNair’s, a district court may not sentence a
defendant to more than two years’ imprisonment upon revocation of supervised
release. 18 U.S.C. § 3583(e)(3). The guidelines recommend a sentencing range of
8 to 14 months for a grade C violation of supervised release when the defendant
has a criminal history category of VI. U.S.S.G. §§ 7B1.1 and 7B1.4. We have
consistently held that the policy statements in Chapter Seven are merely advisory
and not binding, but the district court is nevertheless required to consider them.
Silva, 443 F.3d at 799.
The district court did not abuse its discretion in sentencing McNair to 24-
months’ imprisonment. McNair had multiple previous probation and supervised
release violations and revocations, he had a long criminal history, he received a
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below-guidelines sentence for the underlying conviction, and he had a drug
problem that needed treatment, which he could receive while imprisoned. Under
the totality of these circumstances, the 24-month sentence was substantively
reasonable. Accordingly, we affirm.
AFFIRMED.
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