[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15177 MAR 15, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 94-00167-CR-J-16-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEROY THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 15, 2007)
Before BIRCH, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Leroy Thomas appeals a 24-month sentence imposed upon the revocation of
his supervised release. He challenges the sentence as unreasonable, under United
States v. Booker, 543 U.S. 220 (2005), arguing his violation was not particularly
severe and he had already served five years in state prison for the offense conduct
that constituted the violation. After careful review, we affirm.
After Booker, we review a sentence imposed for a violation of supervised
release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07
(11th Cir. 2006). Pursuant to 18 U.S.C. § 3583(e),
a district court may, upon finding by a preponderance of the evidence
that a defendant has violated a condition of supervised release, revoke
the term of supervised release and impose a term of imprisonment
after considering certain factors set forth in 18 U.S.C. § 3553(a).
Section 3553(a) provides that district courts imposing a sentence must
first consider, inter alia, (1) the nature and circumstances of the
offense; (2) the history and characteristics of the defendant; (3) the
need for the sentence to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment for the offense; and
(4) the kinds of sentences and sentencing range established by the
Guidelines, and in the case of a violation of supervised release, the
applicable Guidelines or policy statements issued by the Sentencing
Commission. See 18 U.S.C. § 3553(a).
Id. Moreover, we have held that revocation of probation is part of a defendant’s
original sentence because “revocation of probation constitutes a modification of the
terms of the original sentence and implicates solely the punishment initially
imposed for the offense conduct underlying that sentence.” United States v.
Woods, 127 F.3d 990, 992-93 (11th Cir. 1997).
Here, the district court explicitly considered Thomas’s history and
characteristics in addition to stating that it had considered all of the § 3553(a)
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factors. At the revocation hearing, Thomas presented the following arguments in
support of mitigation: (1) he was 58 years old and had learned his lesson and no
longer was tempted to commit crimes; (2) for almost two years he had no problems
with his supervised release; (3) the burglary he committed, which violated the
terms of his supervised release, merely involved the attempt to steal scrap metal
from a former employer; (4) as a result of this crime, a state court sentenced him to
five years’ imprisonment based on his status as a habitual felony offender, and he
served the complete sentence; and (5) he had done well during the last two and
one-half months, while he had been released on bond. In addition, Thomas offered
letters from his supervisor and a coworker, who both indicated that Thomas was a
dependable, respectful, hard worker.
After hearing the foregoing argument and considering Thomas’s letters in
support of mitigation, the district court sentenced Thomas within the advisory
Guidelines range, noting the severity of Thomas’s prior criminal conduct and
finding that Thomas was a danger to society. The court stated that it had
considered all of the § 3553(a) factors and found that the within-Guidelines
sentence was “absolutely necessary.”
On this record, Thomas has not shown that the sentence imposed was
unreasonable. We are unpersuaded by Thomas’s argument that the sentence failed
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to account for the fact that he had already served five years in state prison for the
offense conduct constituting the violation of his supervised release. This factor
does not render the sentence unreasonable. The sentence was not imposed as
punishment for Thomas’s state crime, but rather because he violated the conditions
of his supervised release. See Woods, 127 F.3d at 992-93. We affirm Thomas’s
sentence because the district court did, in fact, consider the advisory Guidelines
range, as well as the § 3553(a) factors, and imposed a reasonable sentence.
AFFIRMED.
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