[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 17, 2009
No. 08-14837 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00025-CR-HL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEBRA ELAINE SHEPPARD JACOBS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(February 17, 2009)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
On November 10, 205, the district court, having accepted appellant’s plea
of guilty to possession with intent to distribute methamphetamine, sentenced
appellant to a prison term of 27 months and a three-year term of supervised release.
On January 23, 2008, the court's probation office filed a petition for action on
supervised release, alleging that she had violated the law, failed to participate in an
approved substance abuse treatment program, and failed to give 10 days notice of a
change in her address to officials. Before the court could act on the petition, a
federal grand jury indicted appellant on substance abuse charges and for misprison
of a felony. In a plea agreement, she pled guilty to the misprison offense and
admitted that she had violated the conditions of her supervised release. Further,
she acknowledged that a revocation sentence would be imposed consecutively to
the sentence for misprison of a felony. In exchange for appellant's guilty plea and
this acknowledgment, the Government agreed to drop the substance abuse charge.
The district court sentenced appellant to a prison term of 36 months on the
misprison offense. The court revoked appellant's supervised release, finding that
she had violated several of its conditions, and sentenced her to a consecutive prison
term of 24 months.1 Appellant now appeals that sentence, arguing that the
sentence is unreasonable.
We review a sentence imposed following the revocation of supervised
1
The sentence range under the Guidelines was 4-10 months’ imprisonment.
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release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1107 (11th
Cir. 2006). When considering reasonableness, we first review whether the district
court committed a procedural error, such as incorrectly calculating the Guidelines,
treating the Guidelines as mandatory, imposing a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence. Gall v.
United States, 552 U.S. ___, ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If
there are no procedural errors in the sentence, we "then consider[s] the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard."
Id. at , 128 S.Ct. at 597. Similarly, we review a district court's decision after
revocation of supervised release to impose, as here, a sentence above the range
recommended by Chapter 7 of the Sentencing Guidelines for abuse of discretion.
United States v. Brown, 243 F.3d 1237, 1239 (11th Cir. 2000) (affirming
imposition of 24 months incarceration where guidelines advised 11 months).
The district court is not required to explicitly state its consideration of the
Guidelines, factors related to sentence, or all of its determinations with respect to a
sentence as long as the record indicates the court's consideration thereof. See
United States v. Aguillard, 217 F.3d 1319, 1320(11th Cir. 2000) (holding that the
record where a court sentences pursuant to a revocation of a term of supervised
release needs to provide "some indication" that the court was aware of and
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considered the Guidelines when affirming imposition of 24 months incarceratio
where the guidelines advised 3 to 9 months).
Section 3583 of Title 18 of the United States Code provides that a district
court may revoke a term of supervised release and impose a sentence of
imprisonment for the violation after considering factors set forth in
18 U.S.C. § 3553(a)(l), (a)(2)(B)-(D), and (a)(4)-(7). 18 U.S.C. § 3583(e).
18 U.S.C. § 3583(c). However, consideration of § 3553(a)'s factors is not required
when revocation of supervised release is mandatory. Brown, 224 F.3d at 1241.
Revocation of supervised release is mandatory if, among other things, the
defendant possesses an illegal drug in violation of the conditions of supervised
release. 18 U.S.C. § 3583(g)(1).
In this case, the district court imposed a reasonable sentence. The court was
not required to consider § 3553(a)'s factors when determining its sentence because
appellant's possession of methamphetamine mandated revocation of her term of
supervised release. As required, the court consulted the Guidelines and correctly
calculated the sentence range, considered the advisory Guidelines and Chapter
Seven, and explained the sentence it imposed. In light of appellant's
manufacturing and use of methamphetamine without regard to the danger to others
within six months of her release from prison and her failure to attend drug
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treatment programs (she is an admitted drug addict), the district court did not
clearly err in finding the Guidelines sentence range to be inadequate and
determining that the maximum statutory sentence was appropriate and reasonable.
AFFIRMED.
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