[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 22, 2005
No. 04-11555 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 00-00173-CR-CO-S & 00-00174-CR-CO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMIE JOE JACKSON, JR.,
a.k.a. Jonathan Barton, etc.
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 22, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Tommie Joe Jackson, Jr., appeals his 36-month sentence imposed pursuant
to revocation of his supervised release. For the first time on appeal, Jackson argues
that the district court erred by improperly sentencing him to a term of
imprisonment greater than the recommended guideline range based on factors that
already had been considered by the Sentencing Commission. The essence of his
claim is that 18 U.S.C. 3553(b)(1) prevents a district court from imposing a
sentence outside the recommended range unless the court finds an aggravating or
mitigating circumstance.
We review a district court’s decision to exceed the chapter seven guidelines’
recommended sentencing range for an abuse of discretion. See United States v.
Hofierka, 83 F.3d 357, 361–62 (11th Cir. 1996). However, where a defendant
raises a sentencing argument for the first time on appeal, we review only for plain
error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Plain
error requires (1) an error, (2) that is plain, (3) that affects the substantial rights of
the defendant, and (4) that, if left uncorrected, would “seriously affect the fairness,
integrity, or public reputation of a judicial proceeding.” United States v.
Humphrey, 164 F.3d 585, 588 & n.3 (11th Cir. 1999).
Pursuant to 18 U.S.C. § 3583, the district court may:
revoke a term of supervised release, and require the defendant to serve
in prison all or part of the term of supervised release authorized by
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statute for the offense that resulted in such term of supervised release
without credit for time previously served on postrelease supervision, if
the court, pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised release, finds by a
preponderance of the evidence that the defendant violated a condition
of supervised release . . . .
18 U.S.C. § 3583(e)(3). If a district court revokes a term of supervised release
related to a Class B felony, the court may sentence the defendant to up to three
years’ imprisonment. Id.
The Sentencing Guidelines that apply to violations of supervised release,
which appear in chapter seven, “are merely advisory, and it is enough that there is
some indication the district court was aware of and considered them.” Aguillard,
217 F.3d at 1320. In Aguillard we approved of a district court’s sentence in excess
of the chapter seven recommended range when the court “explicitly mentioned
those guidelines and decided the sentence they recommended was inadequate
under the circumstances.” Id.
Likewise, the district court in this case indicated that it was aware of the
range and considered it. Ultimately the court rejected it because Jackson
committed new offenses similar to the original offenses soon after he began his
term of supervised release. Because the court considered the chapter seven
guidelines and explained its reasoning for sentencing beyond that range, the district
court did not plainly err.
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Moreover, the provision that Jackson cites undermines his claim. Whereas
Jackson argues that a court must find an aggravating or mitigating circumstance to
impose a sentence outside the range of any sentence, our precedent clearly holds to
the contrary with respect to revocations of supervised release. See Aguillard, 217
F.3d at 1320. Furthermore, § 3553(b)(1) expressly cross-references 18 U.S.C. §
3553(a)(4), which requires a district court to consider the (advisory) chapter seven
sentencing guidelines for revocation of supervised release. The district court in
this case has followed Congress’s mandate.
Upon review of the record and consideration of the briefs, we find no
reversible error. Accordingly, we affirm Jackson’s sentence.
AFFIRMED.
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