[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 25, 2008
No. 07-14723 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20329-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELAN MARSAILLES WIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 25, 2008)
Before ANDERSON, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Delan Wight appeals his sentence of nine months imprisonment
and 51-months supervised release, imposed upon revocation of supervised release.
On appeal, Wight argues that his 9-month sentence, at the high-end of the
guideline range, and his 51-month term of supervised release are unreasonable.
Specifically, he argues that the district court failed to consider the 18 U.S.C.
§ 3553(a) factors, failed to adequately account for Wight’s arguments in
mitigation, and failed to explain why the sentence was necessary under the
circumstances of his case.
A sentence imposed upon the revocation of a supervised release term is
reviewed for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07
(11th Cir. 2006). Recently, the Supreme Court clarified that courts of appeal are to
review sentences for abuse of discretion. Gall v. United States, 552 U.S. __, __,
128 S. Ct. 586, 597 (2007).
A. Procedural reasonableness
We “must first ensure that the district court committed no significant
procedural error.” Id. To that end, the district court “should set forth enough to
satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita v.
United States, 551 U.S. __, 127 S. Ct. 2456, 2468 (2007). In the revocation
setting, “upon finding by a preponderance of the evidence that a defendant has
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violated a condition of supervised release, [a district court may] 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).” Sweeting, 437 F.3d at 1107; see
18 U.S.C. § 3583(e). Some of the § 3553(a) factors the court must consider
include the nature and circumstances of the offense, the history and characteristics
of the defendant, the need for adequate deterrence and protection of the public, the
need to provide the defendant with educational, medical, or other correctional
treatment, the kinds of sentence and the sentencing range, the pertinent Sentencing
Commission policy statements, the need to avoid unwarranted sentencing
disparities, and the need to provide restitution. See 18 U.S.C. §§ 3583(e),
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).
On the other hand, revocation of supervised release is mandatory if, among
other things, a defendant refuses to comply with drug testing imposed as a
condition of supervised release. 18 U.S.C. § 3583(g). We have held that the
defendant’s revocation was mandatory because the statutory criteria set forth in
§ 3583(g)(1) and (3) was met, even though the district court did not explicitly
mention that it was revoking pursuant to § 3583(g). United States v. Brown, 224
F.3d 1237, 1241-42 (11th Cir. 2000). While the § 3553(a) factors must be
considered if supervised release is subsequently revoked under § 3583(e), “when
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revocation of supervised release is mandatory under 18 U.S.C. § 3583(g), the
statute does not require consideration of the § 3553(a) factors.” Id. at 1241.
B. Substantive reasonableness
If the district court’s decision is procedurally reasonable, our analysis then
turns to the substantive reasonableness of the sentence. Gall, 552 U.S. at __, 128
S. Ct. at 597. Reasonableness review is deferential and “the party who challenges
the sentence bears the burden of establishing that the sentence is unreasonable in
the light of both [the] record and the factors in section 3553(a).” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). “In reviewing the ultimate sentence
imposed by the district court for reasonableness, we consider the final sentence, in
its entirety, in light of the § 3553(a) factors” rather than reviewing each individual
decision made during the sentencing process. United States v. Valnor, 451 F.3d
744, 750 (11th Cir. 2006) (citation omitted). Furthermore, “[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court[,]” and we “will not substitute our judgment in weighing the
relevant factors.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006),
cert. dismissed, 127 S. Ct. 3040 (2007), abrogated on other grounds by,
Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558 (2007).
Although in Rita, 551 U.S. at __, 127 S. Ct. at 2462, the U.S. Supreme Court
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held that courts of appeal may afford a presumption of reasonableness to sentences
within the properly calculated guidelines range, we have declined to provide such a
presumption. United States v. Campbell, 491 F.3d 1306, 1313-1314 (11th Cir.
2007). While we do not apply such a presumption, “there is a range of reasonable
sentences from which the district court may choose[,]” and we ordinarily expect a
sentence within the guidelines range to be reasonable. Talley, 431 F.3d at 788.
We have also held that comparing the sentence imposed against the statutory
maximum sentence is one indication of reasonableness. Valnor, 451 F.3d at 751-
52.
Pursuant to 18 U.S.C. § 3559(a)(3), Wight’s underlying offense, which has a
statutory maximum of 30 years, is considered a Class B felony. See 18 U.S.C.
§ 3559(a)(2). For a Class B felony, the district court may not sentence a defendant
for more than three years in prison following revocation of supervised release. 18
U.S.C. § 3583(e)(3). Additionally, upon revocation of supervised release, the court
may require a subsequent term of supervised release after imprisonment. 18 U.S.C.
§ 3583(h). However, “[t]he length of such a term of supervised release shall not
exceed the term of supervised release authorized by statute for the offense that
resulted in the original term of supervised release, less any term of imprisonment
that was imposed upon revocation of supervised release.” Id. The authorized term
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of supervised release for a Class B felony is a maximum of five years. 18 U.S.C.
§ 3583(b)(1). For a defendant whose criminal history category was I at the time he
was originally sentenced and who committed a Grade C violation, which includes a
violation of any condition of supervised release, the applicable guideline range is
three to nine months imprisonment. U.S.S.G. §§ 7B1.1(a)(3), 7B1.4(a). We have
consistently held that the policy statements of Chapter 7 of the Sentencing
Guidelines are merely advisory and thus, non-binding. United States v. Cook, 291
F.3d 1297, 1301 (11th Cir. 2002).
To the extent that Wight argues that his sentence is unreasonable because the
district court failed to properly consider the § 3553(a) factors, his argument is
without merit because the district court is not required to consider the § 3553(a)
factors when revocation of supervised release was mandatory. Further, we
conclude from the record that Wight failed to meet his burden of establishing that
his nine-month sentence, within the guideline range, is substantively unreasonable.
Accordingly, we affirm Wight’s sentence.
AFFIRMED.
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