United States v. Neal O'Hara Daniels , 154 F. App'x 883 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 18, 2005
No. 05-11644 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00323-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEAL O'HARA DANIELS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 18, 2005)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Neal O’Hara Daniels appeals his sentence of 11 months
imprisonment, to be followed by 38 months supervised release, imposed after the
district court revoked his supervised release, pursuant to 18 U.S.C. § 3583(e).
During his revocation hearing, Daniels admitted to supervised release violations
and requested that he be sentenced to a term of imprisonment, without a term of
supervised release, based on his inability, or unwillingness, to comply with the
requirements of supervised release. The district court rejected the request, after
stating: “Your argument is basically [that] . . . the more unsuccessful you
demonstrate to the [c]ourt you are going to be on supervised release[,] the more
we’re going to reward you by not putting you on supervised release.”
On appeal, Daniels argues that his sentence, while legal, was unreasonable
because: (1) he is a “troubled individual,” who was sexually abused as a child,
suffers from epileptic seizures, has attempted suicide, and has serious substance
abuse problems; and (2) he can successfully complete a term of imprisonment, but
has difficulty meeting the technical requirements of supervised release. He notes
that, under 18 U.S.C. § 3553(a), the district court was required to, but did not,
consider his history and characteristics.
Prior to the Supreme Court’s decision in United States v. Booker, 543 U.S.
___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), we reviewed a sentence imposed
after revocation of supervised release using the “plainly unreasonable” standard set
forth in 18 U.S.C. § 3742(e)(4). See United States v. Scroggins, 910 F.2d 768, 769
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(11th Cir.1990). Although the Supreme Court in Booker excised § 3742(e) and
replaced the standard of review with a “reasonableness” standard, Booker, 543 U.S.
at __, 125 S. Ct. at 764-66, that standard is the same as the “plainly unreasonable”
standard in § 3742. Therefore, we will review Daniels’s sentence for
reasonableness.
Upon finding that the defendant violated a condition of supervised release, a
court, after considering the factors set forth in § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-
(7), may revoke a term of supervised release and
require the defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that resulted in
such term of supervised release, . . . except that a defendant . . . may
not be required to serve on any such revocation . . . more than 3 years
in prison if such offense is a Class B felony[.]
18 U.S.C. § 3583(e)(3). In addition, “the court may include a requirement that the
defendant be placed on a term of supervised release after imprisonment,” the
length of which “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.” 18 U.S.C. § 3583(h). Chapter 7 of the Sentencing Guidelines, which
governs violations of supervised release, contains policy statements, one of which,
U.S.S.G. § 7B1.4, provides recommended ranges of imprisonment applicable upon
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revocation. Policy statements are merely advisory and thus, non-binding. United
States v. Cook, 291 F.3d 1297, 1301 (11th Cir. 2002). It is enough if “there is
some indication the district court was aware of and considered [Chapter 7 of the
guidelines,]” United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
Additionally, the district court may impose any sentence within the statutory
maximum. United States v. Hofierka, 83 F.3d 357, 362-63 (11th Cir.1996).
Because the record demonstrates that (1) Daniels’s sentence legally was
imposed; (2) the district court’s denial of his request for a longer term of
imprisonment, rather than an additional term of supervised release, was based on
its hesitation to reward defendants who are unsuccessful on supervised release; and
(3) the district court properly considered the § 3553(a) factors, we conclude that
Daniels’s sentence was reasonable. Accordingly, we affirm Daniels’s sentence.
AFFIRMED.
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