                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                         FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                       MAY 1, 2008
                                                   THOMAS K. KAHN
                             No. 07-14236
                                                        CLERK
                         Non-Argument Calendar
                       ________________________

                    D. C. Docket No. 03-00603-CR-1-1

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

JOLANCKE REID,

                                                  Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                               (May 1, 2008)

Before TJOFLAT, BLACK and FAY, Circuit Judges.

PER CURIAM:
      Jolancke Reid appeals his sentence of 12 months and 1 day of imprisonment

imposed upon revocation of his supervised release. Reid argues that the Supreme

Court has held that supervised release may be revoked for failure to pay restitution

only if that failure was willful. Reid contends that the district court clearly erred in

revoking his supervised release based on his failure to pay restitution because the

court failed to make explicit findings that his failure to pay was willful. Reid

asserts that the testimony presented at sentencing established that he was unable to

pay restitution due to his limited income and his obligation to provide basic

necessities for his family. Second, Reid argues that his sentence was unreasonable

and was greater than necessary to satisfy the purposes of sentencing set forth in 18

U.S.C. § 3553(a). Reid asserts that the advisory sentencing range for a technical

violation of the conditions of his supervised release was three to nine months’

imprisonment and argues that the district court improperly imposed a sentence

three months and one day above the upper end of this range without considering

the § 3553(a) factors.

      For the reasons set forth more fully below, we affirm.

                         I. Willful Failure to Pay Restitution

      The district court’s decision regarding revocation of supervised release is

reviewed for abuse of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th



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Cir. 1994). The district court can revoke a term of supervised release if it “finds by

a preponderance of the evidence that the defendant violated a condition of

supervised release . . . .” 18 U.S.C. 3583(e)(3). The district court’s findings of fact

with regard to violations of supervised release are binding unless clearly

erroneous. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).

      Pursuant to 18 U.S.C. § 3613A,

      Upon a finding that the defendant is in default on a payment of a fine
      or restitution, the court may, pursuant to section 3565, revoke
      probation or a term of supervised release, . . . resentence a defendant
      pursuant to section 3614, . . . or take any other action necessary to
      obtain compliance with the order of a fine or restitution.

      In determining what action to take, the court shall consider the
      defendant’s employment status, earning ability, financial resources,
      the willfulness in failing to comply with the fine or restitution order,
      and any other circumstances that may have a bearing on the
      defendant’s ability or failure to comply with the order of a fine or
      restitution.

18 U.S.C. § 3613A(a)(1), (2) (subsections omitted).

      In revocation proceedings for failure to pay restitution, the court must find

the defendant’s failure to pay was willful, i.e., the defendant had the means or

ability to pay a fine or restitution as ordered and purposefully did not do so. See

Bearden v. Georgia, 461 U.S. 660, 668, 103 S.Ct. 2064, 2070, 76 L.Ed.2d 221

(1983). The government may establish willful failure to pay by producing

evidence the defendant had funds available to pay restitution and did not do so.

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See United States v. Boswell, 605 F.2d 171, 175 (5th Cir. 1979). “[A defendant’s]

failure to make sufficient bona fide efforts to seek employment or borrow money

in order to pay the fine or restitution may reflect an insufficient concern for paying

the debt he owes to society for his crime,” and in such a situation, “the State is

likewise justified in revoking probation and using imprisonment as an appropriate

penalty for the offense.” Bearden, 461 U.S. at 668, 103 S.Ct. at 2070. We

determined, in United States v. Satterfield, 743 F.2d 827, 842 (11th Cir. 1984),

that, under Bearden, a district court must consider two threshold criteria in

revocation hearings. The court must first consider whether the defendant has made

sufficient efforts to pay. Id. If a defendant has made sufficient efforts and still

cannot comply with the terms of his probation, the district court must determine

whether imprisonment or an alternative is an appropriate punishment. Id.

      As an initial matter, although the district court did not explicitly find that

Reid’s behavior was willful, it did find that he “ignored his obligations” and had

been unwilling to follow the court’s instructions. Thus, the district court implicitly

found that Reid’s conduct was willful. See Bearden, 461 U.S. at 668, 103 S.Ct. at

2070. In determining that Reid’s supervised release should be revoked, the district

court considered Reid’s employment, his access to other financial resources and

assets that could be sold, and his failure to make any effort to satisfy his restitution



                                            4
obligation after the first revocation hearing. Therefore, the record indicates that the

district court properly considered the § 3613A factors. 18 U.S.C. § 3613A.

      The record also shows that Reid admitted that he did not make restitution

payments as ordered. Although he asserted that he was unable to make restitution

payments because of other expenses related to the maintenance of his home and his

car, the record indicates that Reid did not contact his probation officer to discuss

his financial difficulties and request a different payment schedule. Reid could have

petitioned the court for a modification of his restitution payment schedule pursuant

to 18 U.S.C. § 3664(k). The record further indicates that Reid submitted false

monthly reports to the probation office, which indicated that he had been making

restitution payments and that he did not have any expenses over $500. In light of

the foregoing, the district court did not clearly err in implicitly finding that Reid

did not make sufficient efforts to pay and willfully failed to pay restitution.

Accordingly, it did not abuse its discretion in revoking his supervised release.

See Boswell, 605 F.2d at 175.

                       II. Reasonableness of Reid’s Sentence

      A district court’s decision to exceed the advisory sentencing range in

Chapter 7 of the Sentencing Guidelines, U.S.S.G. § 7B1.4, is reviewed for an abuse

of discretion. United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006). We



                                            5
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).

         Section 3583 of Title 18 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). Sweeting, 437 F.3d at 1107.

Section 3553(a) provides that district courts imposing a sentence must first

consider, inter alia, (1) the nature and circumstances of the offense; (2) the history

and characteristics of the defendant; (3) the need for the sentence to reflect the

seriousness of the offense, promote respect for the law, and provide just

punishment for the offense; and (4) the kinds of sentences and sentencing range

established by the Guidelines, and in the case of a violation of supervised release,

the applicable Guidelines or policy statements issued by the Sentencing

Commission. Id. The term imposed cannot exceed the statutory maximum. Id.

         For a Class B felony, the district court may not sentence a defendant for

more than three years’ imprisonment. 18 U.S.C. § 3583(e)(3). Chapter 7 of the

Sentencing Guidelines recommends a sentencing range of 3 to 9 months for a

Grade C violation of supervised release when the defendant has a criminal history

category of I. U.S.S.G. § 7B1.4. We have consistently held that the policy



                                            6
statements of Chapter 7 are merely advisory and not binding. United States v.

Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).

       To the extent that Reid argues that his sentence is unreasonable because the

district court failed to properly consider the § 3553(a) factors, the district court’s

comments at the revocation hearing indicated that it considered those factors,

particularly the nature and seriousness of the underlying offense, the need to

provide just punishment, and the need to promote respect for the law in imposing a

sentence above the advisory guideline range. The district court may determine the

weight to be afforded any given § 3553(a) factor. See United States v. Amedeo,

487 F.3d 823, 832 (11th Cir. 2007).

       Specifically, the court found that Reid’s failure to pay restitution was a

serious violation in light of the amount of money he embezzled, which exceeded

$200,000. The court noted that Reid was granted a second opportunity to comply

with the conditions of his release, but determined that he ignored his obligations

and continued to violate those conditions by failing to pay restitution and by failing

to report to his probation officer. In light of Reid’s conduct while on supervised

release, including his willful failure to pay restitution, he failed to satisfy his

burden to show that sentence was unreasonable, and the district court did not abuse

its discretion in imposing a sentence that exceeded the advisory guideline range.



                                             7
See Sweeting, 437 F.3d at 1107.

      In light of the foregoing, the revocation of Reid’s supervised release and the

sentence imposed by the district court are

      AFFIRMED.




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