          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                                No. 06-51622                       September 24, 2007
                              Summary Calendar
                                                                 Charles R. Fulbruge III
                                                                         Clerk
UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

CHARLES TODD DAY

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 5:01-CR-30-ALL


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
      Charles Todd Day appeals the consecutive 18-month sentences imposed
by the district court following the revocation of his two concurrent terms of
supervised release. Day argues that the sentences imposed by the district court
are unreasonable. He argues that the sentences are well above the advisory
guidelines range of 7 to 13 months of imprisonment and that the district court
did not give any written or oral reasons for its decision.



      *
      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should not be published and is not precedent except under the limited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. 06-51622

      This court need not decide the appropriate standard of review for a
sentence imposed upon revocation of supervised release in the wake of United
States v. Booker, 543 U.S. 220 (2005), because Day has not shown that his
sentence was either unreasonable or plainly unreasonable. See United States v.
Hinson, 429 F.3d 114, 120 (5th Cir. 2005), cert. denied, 547 U.S. 1083 (2006).
Day was subject to a three year statutory maximum sentence upon revocation
of his supervised release. See 18 U.S.C. §§ 841(b)(1)(B)(ii), 3559(a)(2), 3583(e)(3).
Under the parties’ previous agreed order, the advisory guidelines range of
imprisonment is 18 to 24 months based on Day’s Grade B violation and his
criminal history category of V. See U.S.S.G. § 7B1.4(a). Day’s sentence was
within the advisory guidelines range and did not exceed the statutory maximum
sentence. Id.; §§ 841(b)(1)(B)(ii), 3559(a)(2), 3583(e)(3). Day repeatedly violated
the terms of his supervised release. The district court departed downward at his
original sentencing and previously modified his supervised release to give Day
an opportunity to participate in a residential drug treatment program. The
district court warned Day that if he violated his supervised release in the future,
the court would seriously consider imposing a revocation sentence of at least 36
months. However, Day squandered this opportunity to participate in the
residential drug treatment program and was unsuccessfully discharged from the
program for creating a disturbance and acting in a threatening manner in a
group encounter session. Even if, as Day argues, the advisory range was 7 to 13
months, based on a Grade C violation and his criminal history category of V,
Day’s sentence, while in excess of the recommended range, was within the
statutory maximum sentence that the district court could have imposed.
Further, a review of the record demonstrates that the district court considered
the advisory guideline sentencing range and the relevant sentencing factors. See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Therefore, the
sentence was neither unreasonable nor plainly unreasonable. See Hinson, 429
F.3d at 120. Accordingly, the district court’s judgment is AFFIRMED.

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