            Case: 12-11398    Date Filed: 11/13/2012   Page: 1 of 4

                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 12-11398
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 2:01-cr-00067-JES-DNF-1

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

FRED DOUGLAS SHACKLEFORD,
a.k.a. Fred Shackle,

                                                       Defendant-Appellant.

                       ___________________________

                 Appeal from the United States District Court
                      for the Middle District of Florida
                     ____________________________

                             (November 13, 2012)

Before MARTIN, JORDAN and FAY, Circuit Judges.

PER CURIAM:

     After Fred Shackleford admitted that he violated the terms of his supervised
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release by selling marijuana and testing positive for cocaine, the district court

sentenced him to 24 months of imprisonment. On appeal, Mr. Shackleford challenges

his sentence as substantively unreasonable. After reviewing the parties’ briefs and the

record, we affirm.

      We review Mr. Shackleford’s sentence for substantive reasonableness under

the deferential abuse of discretion standard. See Gall v. United States, 552 U.S. 38,

41 (2007). In doing so, we must examine the totality of the circumstances, including

whether the factors set forth in 18 U.S.C. § 3553(a) support the sentence. See United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Reversal is warranted only

if “we are left with the definite and firm conviction that the district court committed

a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal

quotation marks omitted).

      When sentencing a defendant upon revocation of supervised release, a district

court must consider: (1) the nature and circumstances of the offense and the history

and characteristics of the defendant; (2) the need for the sentence imposed to afford

adequate deterrence to criminal conduct, to protect the public from further crimes of

the defendant, and to provide the defendant with needed educational or vocational

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training, medical care, or other correctional treatment; (3) the kinds of sentences

available; (4) the Sentencing Guidelines’ range; (5) any pertinent Sentencing

Commission policy statements; (6) the need to avoid unwarranted sentencing

disparities among defendants with similar records who have been found guilty of

similar conduct; and (7) the need to provide restitution to victims. See 18 U.S.C. §

3583(e) (providing that a court must consider the factors set forth in § 3553(a)(1),

(a)(2)(B)–(D), and (a)(4)–(7)).

      After reviewing the record, we cannot say that the 24-month sentence was

substantively unreasonable. First, the sentence was below the advisory guideline

range of 27-33 months. See United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005) (“[O]rdinarily we would expect a sentence within the Guidelines range to be

reasonable.”). Second, although Mr. Shackleford was originally convicted of serious

drug and firearm offenses and sentenced to approximately nine years of

imprisonment, he continued to engage in unlawful behavior following his release.

Third, Mr. Shackleford was eligible for an upward departure because he had received

a downward departure at his original sentencing. See U.S.S.G. § 7B1.4, cmt. n.4.

Fourth, the 24-month sentence is significantly less than the 5-year statutory maximum

penalty applicable to Mr. Shackleford. See Gonzalez, 550 F.3d at 1324 (comparing

the sentence imposed to the applicable statutory maximum). Contrary to Mr.

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Shackleford’s argument on appeal that the district court did not consider the fact that

his violations were the result of a serious accident he was involved in, the district

court explicitly considered Mr. Shackleford’s argument but determined that it did not

outweigh his violations. See R2:11 (“I have no reason to believe that was not initiated

by the accident that you referred to; but, nonetheless, you were selling drugs out of

your residence, and using drugs as well.”). Finally, the district court explicitly

considered the § 3553(a) factors, see R2:10, and we are not left with a “definite and

firm conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190.

      In sum, Mr. Shackleford has not met his burden to show that his 24-month

sentence is substantively unreasonable. See Talley, 431 F.3d at 788 (“the party who

challenges the sentence bears the burden of establishing that the sentence is

unreasonable”). Accordingly, Mr. Shackleford’s 24-month sentence is affirmed.

      AFFIRMED.




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