                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                                 AUGUST 11, 2005
                                 No. 04-16670                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                       D.C. Docket No. 02-00014-TP-KMM

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                       versus

EVERETT CRAIG SIMMONS,

                                                              Defendant-Appellant.

                         __________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                (August 11, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      After the district court revoked Everett Craig Simmons’s original period of

supervision because it found that he had violated the conditions of his release, the
court imposed of a five-month sentence followed by a new 36-month term of

supervised release. Simmons appeals only the period of supervision, arguing that,

although the portion of the U.S. Sentencing Guidelines pertaining to the

revocation of supervised release was advisory when the court sentenced him, the

additional term of supervised release violates his rights under United States v.

Booker, 543 U.S. ___, ___, 125 S. Ct. 738, 756-58 (2005).

       Because Simmons did not raise any objections to the district court’s

application of the guidelines, our review is for plain error only. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005).

To prevail under plain error review, Simmons must establish that there is (1) an

error, (2) that is plain, (3) affects his substantial rights, and (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

       In Booker, the Supreme Court held, in relevant part, that the United States

Sentencing Guidelines pass constitutional muster as long as the sentencing court

considers them as advisory, not mandatory. Booker, 543 U.S. at ___, 125 S.Ct. at

764. The portion of the Guidelines pertaining to supervised release, namely

Chapter 7, contains policy statements that are explicitly advisory only. See U.S.

SENTENCING GUIDELINES ch. 7, pt. A(1), introductory cmt. (“Under 28 U.S.C. §

994(a)(3), the Sentencing Commission is required to issue guidelines or policy

                                            2
statements applicable to the revocation of probation and supervised release. At

this time, the Commission has chosen to promulgate policy statements only.”);

United States v. Cook, 291 F.3d 1297, 1301 (11th Cir. 2002) (observing that “[t]he

Sentencing Commission has not yet promulgated any binding probation revocation

guidelines; instead, the Sentencing Commission has opted for the flexibility of

advisory policy statements, which are nonbinding on the courts.”).

      Because the guidelines pertaining to the penalties that a district court may

impose upon a revocation of supervised release always have been advisory, the

court did not order Simmons to serve an additional term of supervised release

under a mandatory Guideline system. See Cook, 291 F.3d at 1301. Accordingly,

the district court committed no Booker error, plain or otherwise, that resulted in a

violation of Simmons’s rights. Therefore, we find no reversible error and affirm.

      AFFIRMED.




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