[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
SEP 27, 2011
No. 11-11058 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:10-cr-00034-WLS-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MACKENZIE BRASWELL SHERMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(September 27, 2011)
Before TJOFLAT, CARNES and BLACK Circuit Judges.
PER CURIAM:
MacKenzie Sherman appeals his above-Guidelines sentence of 24-months’
imprisonment imposed upon revocation of his supervised release. First, Sherman
contends for the first time on appeal that the court erred when it impermissibly
speculated he would be admitted to the Bureau of Prisons’ Residential Drug Abuse
Treatment Program (RDAP) when it imposed his sentence. Second, Sherman
asserts that his sentence is substantively unreasonable. After review, we affirm
Sherman’s sentence.
I.
Upon a violation of supervised release, a district court may impose a
sentence of incarceration after consideration of the factors listed in 18
U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7). 18 U.S.C. § 3583(e)(3).
Specifically, the court may consider the need for the sentence “to provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” 18 U.S.C. 3553(a)(2)(D);
see also United States v. Cook, 291 F.3d 1297, 1302 (11th Cir. 2002).
The district court did not plainly err when it considered Sherman’s
rehabilitative needs during sentencing. See United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000) (noting that when a party does not first raise an issue
before the district court, we review for plain error). The alleged error was not
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plain because precedent does not directly foreclose considering a defendant’s
rehabilitative needs when imposing a sentence upon revocation of his supervised
release. See United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005)
(recognizing there is no plain error if our precedent, or that of the United States
Supreme Court, does not directly resolve the issue).
II.
We review a sentence imposed upon revocation of supervised release for
substantive reasonableness under an abuse of discretion standard. Brown, 224
F.3d at 1329. A sentence is substantively unreasonable if, after considering the
totality of the facts and circumstances, “we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the relevant § 3553(a) factors” so that the sentence falls “outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1189-90 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813
(2011).
Sherman’s sentence is substantively reasonable. The court based its
sentence primarily on its perception of Sherman’s dependency issues, his need to
obtain substance abuse treatment and his inability to receive or successfully
complete such treatment on his own. See 18 U.S.C. § 3553(a)(2)(D). Sherman
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was initially incarcerated for a crack cocaine offense. He violated his subsequent
supervised release by using cocaine or marijuana on at least three occasions,
failing to submit to a drug test, and failing to successfully complete a substance
abuse treatment program. When imposing this sentence, the court also considered
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, afford adequate deterrence, and protect the public.
Accordingly, the district court did not abuse its discretion when sentencing
Sherman.
AFFIRMED.
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