[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 13, 2008
No. 07-13708 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 92-04032-4-WS-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRYL VAUGHN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 13, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Darryl Vaughn appeals his 30-months’ sentence, which was imposed
following the revocation of his supervised release. Vaughn argues his sentence is
unreasonable in light of the applicable Guidelines range of 8-14 months.
After United States v. Booker, 125 S. Ct. 738 (2005), we review a federal
sentence imposed upon revocation of supervised release for reasonableness.
United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006).
Reasonableness review requires us to review the sentence under an abuse-of-
discretion standard. Gall v. United States, 128 S. Ct. 586, 594 (2007). We “must
first ensure that the district court committed no significant procedural error,” and
then we “consider the substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.” Id. at 597. The party challenging the sentence
bears the burden of establishing the sentence was unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Vaughn’s sentence is not procedurally unreasonable. Under 18 U.S.C. §
3583(e), upon finding by a preponderance of the evidence the defendant violated a
condition of his release, the district court may revoke his term of supervised
release and impose a sentence of imprisonment after considering the factors set
forth in 18 U.S.C. § 3553(a). Sweeting, 437 F.3d at 1107. The court is not
required to state on the record it has explicitly considered each of the § 3553(a)
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factors or individually discuss each factor. See United States v. Scott, 426 F.3d
1324, 1329 (11th Cir. 2005) (addressing an appeal from an original sentence). It is
sufficient that the district court acknowledges it considered the factors. Id.
However, the court “must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing.”
Gall, 128 S. Ct. at 597. Additionally, as long as the Guidelines are applied in an
advisory manner, it does not violate the defendant’s constitutional rights for the
court to make factual findings by a preponderance of the evidence. United States
v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005).
The court applied the Guidelines in an advisory fashion and noted it had
considered the § 3553(a) factors in reaching its decision to sentence Vaughn above
the Guidelines range. Contrary to Vaughn’s claim on appeal, the court did not
base its sentence on his having committed an aggravated battery on or fleeing from
a law enforcement officer. The court explicitly stated it was not finding Vaughn
committed these crimes. Instead, the court based its decision on the two ways in
which Vaughn admitted to violating the terms of his supervised release. First, he
neglected to submit mandatory, monthly supervision reports for seven consecutive
months. Second, he moved from his approved residence without notifying his
probation officer, which resulted in his whereabouts being unknown for
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approximately five months. The evidence presented at the revocation hearing as
to Vaughn’s participation in a staged drug deal “very clearly” told the court the
reason Vaughn intentionally violated the terms of his supervised release. The
court noted these violations were not inadvertent or accidental, but instead were
intentional and deliberate. The court, having considered the § 3553(a) factors and
offering an explanation for its decision to sentence Vaughn beyond the Guidelines
range, committed no procedural error.
Additionally, the court did not impose a substantively unreasonable
sentence. Extraordinary circumstances are not necessary to justify a sentence
outside the Guidelines range. Gall, 128 S. Ct. at 595. However, “a major
departure should be supported by a more significant justification than a minor
one.” Id. at 597. While Vaughn’s sentence of 30-months’ imprisonment is more
than double the Guidelines range maximum, the court justified its decision by
relying on Vaughn’s deliberate, drug-related failure to comply with the mandatory
terms of his supervised release. The intentional nature of Vaughn’s violations,
coupled with the evidence Vaughn continued to sell cocaine while on supervised
release following his conviction for possessing cocaine with intent to distribute,
could certainly justify a harsher sentence in light of the § 3553(a) factors. Given
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the range of sentences from which it could choose, the district court did not abuse
its discretion in sentencing Vaughn to 30-months’ imprisonment.
Based on our review of the record and the parties’ briefs, we conclude
Vaughn’s sentence is reasonable. Accordingly, we affirm his sentence.
AFFIRMED.
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