United States v. Ronald E. Smith, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10187 ELEVENTH CIRCUIT
JULY 03, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 97-06129-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD E. SMITH, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 3, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Ronald E. Smith, Jr., appeals from the 21-month term of imprisonment imposed
following the revocation of his supervised release, pursuant to 18 U.S.C.
§ 3583(e)(3). On appeal, Smith argues that his sentence was unreasonable in length
because the district court: (1) did not give sufficient consideration to the length of
time Smith had served for the substantive criminal conviction that resulted in the
revocation of his supervised release; and (2) did not consider the fact that Smith had
neck cancer. After careful review, we affirm.
We review the sentence imposed upon the revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006).
“[R]easonableness” review “merely asks whether the trial court abused its discretion.”
United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United
States, 127 S. Ct. 2456, 2465 (2007)). “The party who challenges the sentence bears
the burden of establishing that the sentence is unreasonable . . . .” United States v.
Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation omitted).
Section 3583 of Title 18 of the United States Code provides that a district court
may revoke a term of supervised release and impose a sentence of imprisonment for
the violation after considering factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B)-
(D), and (a)(4)-(7).1 18 U.S.C. § 3583(e). Chapter 7 of the United States Sentencing
1
These factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to afford adequate
deterrence; (3) the need to protect the public; (4) the need to provide the defendant with educational
or vocational training or medical care; (5) the Sentencing Guidelines range; (6) the pertinent policy
statements of the Sentencing Commission; (7) the need to avoid unwanted sentencing disparities;
and (8) the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and
2
Guidelines provides guidance on the length of the sentence to be imposed after
revocation, but Chapter 7 is not binding; the district court need only be aware of and
consider its recommendations. United States v. Aguillard, 217 F.3d 1319, 1320 (11th
Cir. 2000).
The district court did not abuse its discretion in sentencing Smith to 21 months’
imprisonment after revoking his supervised release. The district court expressly
noted that it was considering the arguments advanced by Smith, and even that it was
not sentencing Smith to a longer term of imprisonment based on the sentence served
by Smith for his state conviction. Moreover, the 21-month sentence at the low end
of the guidelines range was reasonable and supported by the district court’s
explanation.2
AFFIRMED.
(a)(4)-(7).
2
See also Rita, 127 S. Ct. at 2462 (holding that a court of appeals may afford a
presumption of reasonableness to a within-Guidelines sentence); United States v. Campbell, 491
F.3d 1306, 1314 n.8 (11th Cir. 2007) (noting that, although we have not normally afforded a within-
Guidelines sentence a presumption of reasonableness, the Rita decision calls that policy into
question).
3