                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                                                   OCTOBER 11, 2011
                                            No. 11-10432
                                                                      JOHN LEY
                                        Non-Argument Calendar
                                                                       CLERK
                                      ________________________

                          D.C. Docket No. 1:08-cr-00027-DHB-WLB-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

ZACHERY TALLEY,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Georgia
                                 ________________________

                                           (October 11, 2011)

Before HULL, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
      Zachery Talley appeals his 24-month above guidelines-range sentence,

imposed for violating the terms of his probation. Talley was originally sentenced

to a term of five years’ probation following his guilty plea to one count of

conspiracy to use access devices fraudulently, in violation of 18 U.S.C. § 371. On

appeal, Talley argues (1) he was not given proper notice that the court intended to

“depart” from the guidelines range, and (2) his sentence was excessively harsh.

After review, we affirm Talley’s sentence.

                                          I.

      Talley first argues he was not given proper notice that the district court

intended to “depart” from the guidelines range of three to nine months. He

contends he was denied an opportunity to defend against an excessively harsh

sentence.

      Talley failed to object before the district court; thus, we review for plain

error, which exists only where (1) there is an error; (2) that is plain or obvious; and

(3) that affects the defendant’s substantial rights. United States v. Olano, 507 U.S.

725, 732-34 (1993). In United States v. Hofierka, 83 F.3d 357, 362–63 (11th Cir.

1996), we held that a district court’s decision at a revocation hearing to sentence

outside the range suggested by the Chapter 7 advisory policy statements is not a

“departure” that would require advance notice. Thus, the district court did not

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plainly err when it failed to give Talley notice before sentencing him outside the

advisory guidelines but within the statutory maximum.

                                         II.

      Talley next argues his 24-month sentence for violating the terms of his

probation was excessively harsh in light of the nature of the offenses for which his

probation was revoked and his criminal history.

      We review for an abuse of discretion a district court’s decision to exceed the

Chapter 7 advisory guidelines range. See United States v. Silva, 443 F.3d 795, 798

(11th Cir. 2006). We review the sentence imposed upon the revocation of

probation for reasonableness. See United States v. Sweeting, 437 F.3d 1105,

1106-07 (11th Cir. 2006) (addressing supervised release). The party challenging

the sentence has the burden of establishing the sentence was unreasonable. United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Here, the district court did not abuse its discretion in imposing a sentence of

24 months’ imprisonment, nor was the sentence unreasonable. The policy

statements of Chapter 7 are merely advisory, and the district court, after

considering a number of § 3553(a) factors, found that a sentence exceeding the

guidelines’ range was necessary. Under the totality of the circumstances, the

sentence was not greater than necessary to achieve the purposes of sentencing,

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especially considering the leniency the court exercised when it sentenced Talley

the first time. See 18 U.S.C. § 3553(a). Talley has not met his burden to show the

sentence was unreasonable.

      AFFIRMED.




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