[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 22, 2005
No. 04-15850
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00075-CR-1-WDO-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICIA JUNE ANDERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 22, 2005)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Patricia June Anderson appeals her sentence of thirty-six months
imprisonment, imposed following her guilty plea to violations of conditions of her
probation.
In 2003, Anderson was sentenced to a term of sixty months probation
following her guilty plea to distribution of methamphetamine, a Class C felony in
violation of 21 U.S.C. § 841.1 In 2004, the probation officer petitioned the court to
revoke Anderson’s probation because she violated the terms of her release on
several occasions by (1) possessing amphetamines and/or methamphetamine, and
(2) failing to participate in drug testing. Given Anderson’s criminal history
category III in the underlying criminal conviction, and the fact that the conviction
involved a Class C felony, the probation officer recommended a term of
imprisonment under the sentencing guidelines of five to eleven months.
At sentencing, Anderson pleaded guilty and admitted the violations,
although she denied using drugs on one of the occasions listed in the petition.
After considering the guidelines range, the court imposed a sentence of thirty-six
months imprisonment, stating that it found the range to be inadequate in this case.
Anderson did not object to the sentence.
On appeal, Anderson argues that the court abused its discretion because the
1
Under 21 U.S.C. § 841(b)(1)(C), the statute under which Anderson was convicted, the
statutory maximum sentence was twenty-years imprisonment, making it a Class C felony. See 18
U.S.C. §§ 3559(a)(3) and 3561(a).
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thirty-six month sentence grossly exceeded the range provided for by the
sentencing guidelines.
Generally, we review departures in sentences imposed for probation
revocation under Chapter 7 of the sentencing guidelines for abuse of discretion.
See United States v. Cook, 291 F.3d 1297, 1299 n.2 (11th Cir. 2002). When a
defendant fails to object to an error before the district court, however, we review
for plain error. United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002); see also
United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d
508 (1993). “Plain error occurs where (1) there is an error; (2) that is plain or
obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial
and not harmless; and (4) that seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Hall, 314 F.3d at 566; Olano, 507 U.S. at
732.
Here, Anderson admitted that her probation violation included possession of
a controlled substance, which required the court to impose a term of imprisonment
upon revocation. 18 U.S.C. § 3565(b)(1), (3), (4); see also U.S.S.G. § 7B1.4,
comment. (n.5). In determining the applicable sentence, the court is instructed by
18 U.S.C. § 3581(b), which authorizes a sentence of not more than twelve years for
a Class C felony. 18 U.S.C. § 3581(b)(3).
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Under 18 U.S.C. § 3553, a court is required only to consider the sentencing
guidelines policy statements in Chapter 7 in determining a defendant’s sentence for
probation violations, and the guidelines are not binding on the courts.2 18 U.S.C.
§ 3553(a)(4)(B); U.S.S.G. ch. 7, pt. A(1), (3)(a); Cook, 291 F.3d at 1301; United
States v. Hofierka, 83 F.3d 357, 361 (11th Cir. 1996); United States v. Milano, 32
F.3d 1499, 1503 (11th Cir. 1994), superceded on other grounds by, Cook, 291 F.3d
at 1300. The guidelines range is calculated based on the grade of the probation
violation and the defendant’s criminal history category at the time of the original
sentencing hearing. See U.S.S.G. § 7B1.4; Milano, 32 F.3d at 1501. As the
guidelines are merely advisory, however, the court may depart upward from that
range, as long as the sentence is within the statutory maximum. Hofierka, 83 F.3d
at 362; see also United States v. Booker, 543 U.S. –, 125 S.Ct. 738, 749-50, 160
L.Ed.2d 621 (2005) (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct.
2348, 2362, 147 L.Ed.2d 435 (2000) and holding that the ‘statutory maximum’ is
“the maximum sentence a judge may impose solely on the basis of the facts . . .
admitted by the defendant”). Additionally, the guidelines recognize that, where the
original sentence included a downward departure, as Anderson’s did, an upward
2
In revoking a term of probation, the court should consider the factors set forth in 18 U.S.C.
§ 3553(a)(1), including: the nature and circumstances of the offense, the history and characteristics
of the defendant, the seriousness of the offense, deterrence, and the need to provide the defendant
with treatment. 18 U.S.C. §§ 3553(a)(1), 3583(e).
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departure from the sentencing range may be warranted. U.S.S.G. § 7B1.4,
comment. (n.4).
Here, upon revocation of probation, the court considered the factors in
§ 3553(a) and determined that the sentence calculated under the guidelines was
inadequate and an appropriate sentence was thirty-six months imprisonment. As
the court was authorized to sentence Anderson up to a maximum of twelve years
imprisonment, Anderson cannot show plain error in the sentence imposed. See
United States v. Rodriguez, 398 F.3d 1291 (11th Cir.), petition for cert. filed,
(No.04-1148) (Feb. 23, 2005).
Accordingly, we AFFIRM.
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