                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2289
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Greg Hergott,                           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 13, 2008
                                Filed: April 20, 2009
                                 ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                              ___________

JOHN R. GIBSON, Circuit Judge.

      Greg Hergott was accused of violating the terms of his supervised release by
committing felony assault and failing to complete a required substance abuse
treatment program. Hergott admitted these violations at the revocation hearing and
was sentenced to sixty months’ imprisonment. On appeal, Hergott argues that the
sixty-month sentence is improper because: (1) it exceeds the applicable statutory
maximum resulting in an illegal sentence; and (2) the district court erred in ordering
an excessive and unwarranted sentence. We reverse and remand for resentencing.
       On January 27, 2003, Greg Hergott was sentenced to 117 months’
imprisonment and five years’ supervised release after pleading guilty to narcotics and
firearm charges. In response to the government’s motion for resentencing based on
substantial assistance, Hergott was resentenced to a total term of thirty-six months’
imprisonment followed by five years’ supervised release. See Fed. R. Crim. P. 35(b).
He was released in June 2005 and began the supervised release portion of his
sentence. In 2006, Hergott violated his supervised release and, after serving seventy-
two days in custody, was sentenced to time served. In 2007, Hergott was again
charged with violating the terms of his supervised release by committing felony
assault and failing to complete a required substance abuse treatment program. He
admitted the allegations and received the sentence at issue on this appeal.

       At his sentencing on the 2007 violation, the district judge revoked Hergott’s
supervised release and sentenced him to sixty months’ imprisonment. Under the
version of 18 U.S.C. § 3583(e)(3) in effect at the time of sentencing, sixty months was
the maximum sentence allowable where the violator’s original offense was a Class A
felony.1 This was an upward departure from the eighteen to twenty-four months
recommended by the U.S. Sentencing Guidelines. Hergott objected to the sentence,
arguing that the district court was required to apply the version of § 3583(e)(3) in
effect at the time he committed the original offense, and therefore the sixty-month
sentence must be reduced by the seventy-two days he served on the first revocation.
Nonetheless, the district court entered a sentence of sixty months’ imprisonment with
no supervised release to follow.

                                          I.

     Hergott appeals his sentence as illegal, arguing that it exceeds the statutory
maximum contained in the version of 18 U.S.C. § 3583(e)(3) in effect on July 19,


      1
       18 U.S.C. § 3583(e)(3) governs revocation of supervised release and sets the
maximum term of imprisonment available based upon the nature of the original
offense. In this case, Hergott’s original firearm offense is a class A felony.
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2002, the date of his methamphetamine and firearm convictions. We review the
legality of a revocation sentence de novo. United States v. Lewis, 519 F.3d 822, 824
(8th Cir.), cert. denied, 129 S.Ct. 166 (2008). Hergott argues that under the correct
version of § 3583(e)(3), the statutory maximum term of imprisonment for revocation
of supervised release is sixty months minus any time served on previous revocations
related to the same conviction. See id. (“Section 3583(e)(3) formerly required the
aggregation of any prison sentences imposed for revocations of supervised release
linked to a crime committed before April 30, 2003.”). By contrast, § 3583(e)(3) was
revised in 2003 as part of the PROTECT Act to allow for a full sixty months’
imprisonment on each revocation. Id. (interpreting the 2003 amendments to §
3583(e)(3)). Accordingly, Hergott argues that, in order to avoid violation of the Ex
Post Facto clause, he should be sentenced under the version of 18 U.S.C. § 3583(e)(3)
in effect on July 19, 2002. His current sentence of sixty months’ imprisonment thus
exceeds the applicable statutory maximum by seventy-two days, which is the amount
of time he served on his first revocation.

       The government concedes that Hergott’s sentence should be reduced to reflect
the seventy-two days he served on the previous revocation and requests remand for
that purpose. It appears that the district court intended such a result. At sentencing,
the court stated that “it is my intention and my understanding that the defendant
receive credit for the time that he served in connection with his prior violation.” The
judgment, however, did not reflect this intention. Because we agree that Hergott’s
sentence violates the applicable statutory maximum, we reverse and remand for
resentencing with instructions that Hergott’s sentence be reduced by the seventy-two
days he spent in custody on his first revocation of supervised release.

                                          II.

     Hergott also appeals his sentence on the ground that it is excessive and
unwarranted. We review revocation sentences for reasonableness. See United States

                                         -3-
v. Tyson, 413 F.3d 824, 825 (per curiam) (8th Cir. 2005). Hergott alleges that the
district court erred by: failing to consider the sentencing range recommended by the
Chapter 7 policy statements of the Sentencing Guidelines; giving weight to improper
and irrelevant factors; and improperly balancing relevant sentencing factors to arrive
at an excessive sentence. These arguments are without merit.

       At sentencing, the court explained its decision to depart upward to the statutory
maximum in accordance with the recommendation of the presentence report. In so
doing, the court focused on the significant reduction Hergott received in his initial
sentence based on substantial assistance to the government, noting that it “really was
a disservice to [him] because he wasn’t ready to get out . . ..” This is a proper basis
for upward departure under the Guidelines. See USSG § 7B1.4, comment. (n.4)
(2004) (explaining that a sentence above the recommended revocation range may be
warranted where the original sentence resulted from a downward departure as a
reward for substantial assistance); see also United States v. Larison, 432 F.3d 921, 922
(8th Cir. 2006).

       The district court also discussed the seriousness of Hergott’s violations and his
failure to conform his conduct to the law after multiple opportunities to do so.
Finally, the district court was concerned that Hergott needed the structure and anger
management counseling available to him through the Bureau of Prisons. The district
court did not err in considering these factors. See id. at 923 (“The amount of
resources invested by the government and [defendant’s] own need for treatment
appropriately factored into [defendant’s] inability to conform his conduct to the law
after being offered many opportunities to obtain treatment while on supervised
release.”). The district court is not required to make specific findings as to each of the
§ 3553(a) factors so long as the transcript adequately demonstrates, as it does here,
that they have been considered. See United States v. Franklin, 397 F.3d 604, 606-07
(8th Cir. 2005). Further, Hergott’s sentence was substantively reasonable under the
circumstances. Larison, 432 F.3d at 924 (upholding a sixty-month revocation

                                           -4-
sentence under similar circumstances). Therefore, the district court’s sentence is not
unreasonable.

                                    III. Conclusion

       For the above-stated reasons, the judgement of the district court is reversed, and
this case is remanded for resentencing with instructions that Hergott’s sentence be
reduced by seventy-two days.
                        ______________________________




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