[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 22, 2008
THOMAS K. KAHN
No. 07-13683
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 03-00575-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENIE ALEXANDER JAMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 22, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Kenie James appeals his sentence of imprisonment for 24 months, which
was imposed after revocation of his supervised release. 18 U.S.C. § 3583(e)(3).
James argues that his sentence is unreasonable. We affirm.
I. BACKGROUND
James was indicted in October 2003 on 12 counts of knowingly making a
false representation to a federally licensed firearms dealer. The charges stemmed
from James’s purchase of 51 guns over a period of five months from the
Arrowhead Pawn Shop in Jonesboro, Georgia. Some of these weapons were seized
by law enforcement officers in New York and traced to James. One month before
his first gun purchase, James had pleaded guilty to the offense of driving under the
influence and received a sentence of one day in jail, followed by 24 months of
probation. James’s probation was revoked seven months later after he failed to
attend Alcoholics Anonymous meetings, failed to enroll in a six-week substance
abuse class, failed to perform community service, and he appeared before his
probation officer while legally intoxicated.
James entered a written plea agreement with the government. James pleaded
guilty in May 2004 to count one of the indictment, which charged him with the
purchase of six pistols from the Arrowhead Pawn Shop in February 2001. The
district court sentenced James to 24 months of imprisonment followed by 36
months of supervised release and 150 hours of community service. After James
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was arrested in July 2006 for a new DUI offense, the district court modified the
conditions of James’s supervised release and ordered James to complete an
additional 50 hours of community service and participate in a drug and alcohol
treatment program.
In February 2007, James’s probation officer filed a petition to revoke
James’s supervised release because James had violated three terms of his
probation: (1) James was arrested for a new DUI offense on February 14, 2007; (2)
James failed to maintain employment for 30 hours a week; and (3) James failed to
notify the probation officer about his new criminal charge. James admitted the
allegations in the petition.
At sentencing, James presented mitigating evidence. James submitted a
college transcript that reflected he had enrolled for 15 hours of classes in the
semester preceding his arrest and a letter from a career advisor at a local human
resources center who praised James’s efforts to secure employment. Defense
counsel proffered testimony from James’s employer at Boston Market that James
was a conscientious and punctual employee. Three witnesses testified that James
had a promising career in the rap music industry, a forthcoming cameo appearance
on a music television show, and had formed a new music company to assist free-
lance musicians network with other members of the music industry. The witnesses
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acknowledged that James had not been compensated for his involvement in any of
these ventures.
Defense counsel acknowledged that James had a problem with alcohol
abuse, but stated that James had participated in a six-month treatment program at
Atlanta Psychological Associates after the district court modified James’s sentence
in 2006. The discharge summary stated that James had successfully completed
treatment, but that he called the day after his discharge and admitted a relapse.
Defense counsel requested that the district court release James on supervised
release under home confinement with electronic monitoring and order James to
return to Atlanta Psychological Associates for psychiatric evaluation and treatment
for a “possible bipolar disorder[.]”
Counsel acknowledged that James faced a probation revocation proceeding
for his DUI conviction in July 2006 and James had an outstanding warrant for his
DUI offense in February 2007. James apologized for his past behavior and
“ask[ed] for a second chance to pursue [his] dream” of a career in the music
industry. When questioned by the district court, James admitted that he consumed
alcohol to escape stressful circumstances.
The district court ordered James to serve the statutory maximum sentence of
imprisonment for 24 months because, “[b]ased on [James’s] record, . . . there [was
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not] much [the court could] do to help [James] with [his] alcohol problem” when
James had not altered his behavior despite his prospects in the music industry. The
district court found that incarceration in excess of the applicable guideline range of
5 to 11 months of imprisonment was necessary “to protect society from the sort of
behavior that [James] had exhibited, and . . . to show [James] that there are
consequences to that sort of activity.” Defense counsel objected to the sentence as
“excessive.”
II. STANDARD OF REVIEW
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.
2006). We review for abuse of discretion the decision by the district court to
depart from the sentencing range recommended under Chapter 7 of the Sentencing
Guidelines. United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006).
III. DISCUSSION
James alleges that his sentence of imprisonment for 24 months following
revocation of his supervised release is unreasonable. He contends that the
sentence, which exceeds the recommended chapter 7 guidelines range, creates an
unwarranted sentencing disparity and fails to account for James’s medical care
needs. We disagree.
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A district court “may, after considering the factors set forth in section
3553(a) . . . revoke a term of supervised release” and incarcerate the defendant if it
“finds by a preponderance of the evidence that the defendant violated a condition
of supervised release[.]” 18 U.S.C. § 3583(e)(3). Factors relevant to that decision
include (1) the defendant’s history and characteristics, (2) the need to “promote
respect for the law” and “provide just punishment[,]” (3) the need for deterrence,
and (4) the protection of the public. 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C). Those
considerations guided the district court to incarcerate James for the statutory
maximum period of imprisonment.
The district court was familiar with James and the circumstances of his case
and imposed a reasonable sentence. The district court rejected James’s request to
extend the term of his supervised release because James’s efforts to cultivate his
creative business ventures in the rap music industry would likely cause stress and
induce James to drink. The district court also found that the shorter incarceration
period recommended under the chapter 7 guidelines was not sufficient to remedy
James’s persistent criminal activity. After consideration of the statutory sentencing
factors, the district court concluded that a longer term of imprisonment was
necessary to address James’s alcoholism, punish James, protect the public from
James’s habitual alcohol-related crimes, and deter similar future conduct. See 18
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U.S.C. § 3553(a)(1), (a)(2)(A)-(C). The district court also held James accountable
for his history of violating the terms of his supervised release and probation in
other cases and for failing to complete or benefit from alcohol treatment programs.
See 18 U.S.C. § 3553(a)(1). The district court did not abuse its discretion by
departing from the range recommended by the Guidelines.
IV. CONCLUSION
James’s sentence is AFFIRMED.
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