United States v. Burrell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 6, 2008
No. 07-20459
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RYAN ANTHONY BURRELL
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-389-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Ryan Anthony Burrell appeals the 21-month sentence imposed upon
revocation of his second term of supervised release. He argues that the sentence
is procedurally unreasonable because the district court imposed a sentence
outside the advisory guidelines range and failed to explain adequately the basis
for its deviation. He further argues that the sentence is substantively
unreasonable.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-20459
The district court may impose any sentence that falls within the maximum
term of imprisonment allowed by statute for the revocation sentence. 18 U.S.C.
§ 3583(e)(3). In doing so, the district court is to consider the factors set forth in
18 U.S.C. § 3553(a) and the advisory policy statements found in Chapter Seven
of the Guidelines. United States v. Mathena, 23 F.3d 87, 90 (5th Cir. 1994). The
statutory maximum term of imprisonment upon the revocation of Burrell’s first
term of supervised release in 2006 was two years. See § 3583(e)(3). Burrell
served three months in prison after the revocation of his first term of supervised
release. Thus, the maximum sentence of imprisonment that could be imposed
upon the revocation of his second term of supervised release was 21 months. See
United States v. Jackson, 329 F.3d 406, 407 (5th Cir. 2003). Accordingly,
although the 21-month sentence imposed by the district court exceeded the
maximum advisory guideline range of three to nine months, it was not
unreasonable or plainly unreasonable. See United States v. McKinney, 520 F.3d
425, 428 (5th Cir. 2008).
Burrell’s argument that the district court did not adequately articulate its
sentencing reasons also fails. The record reflects that the district court took into
account the nonbinding policy statements of Chapter 7 of the Sentencing
Guidelines as well as the sentencing factors set forth in § 3553(a). See United
States v. Hinson, 429 F.3d 114, 120 (5th Cir. 2005). The court determined that
a 21-month sentence was appropriate given Burrell’s pattern of non-compliant
behavior and demonstrable history of substance abuse. The inability of the
district court to insure that Burrell would be placed in a facility offering drug
treatment or that Burrell would receive treatment once he was imprisoned does
not render his sentence unreasonable or plainly unreasonable. See 18 U.S.C. §
3621; United States v. Voda, 994 F.2d 149, 151-52 (5th Cir. 1993) (decision
whether a prisoner received treatment for substance abuse is left to the
discretion of the Bureau of Prisons). Thus, the judgment is AFFIRMED.
2