                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2907
                         ___________________________

                              United States of America,

                         lllllllllllllllllllll Plaintiff - Appellee,

                                             v.

          Tony Anthony Day, also known as “50 Cent”, also known as “50”,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                      Appeal from United States District Court
                    for the District of South Dakota - Sioux Falls
                                    ____________

                              Submitted: March 10, 2014
                                 Filed: July 9, 2014
                                   [Unpublished]
                                  ____________

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
                         ____________

PER CURIAM.

      Tony Anthony Day appeals a sentence imposed by the district court1 after
revocation of his supervised release. We affirm.

      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
      In November 2010, Day pleaded guilty to conspiracy to distribute a controlled
substance. The district court sentenced Day to 120 months’ imprisonment, followed
by five years of supervised release. In light of the Fair Sentencing Act of 2010 and
Dorsey v. United States, 132 S. Ct. 2321 (2012), the district court later reduced Day’s
sentence to time served and three years of supervised release.

      Day began his term of supervised release on September 7, 2012. He
immediately complained about his placement at a residential treatment center and
requested transfer to another facility. Day also complained about his assignment to
the code-a-phone drug-testing program. To accommodate Day, authorities moved
him to a different facility and changed his testing protocol to a sweat patch system.
Only two weeks later, however, Day complained about the patch as well, and
authorities returned him to the code-a-phone system.

       Day also promptly failed to comply with certain conditions of his supervised
release. When the infractions continued, the probation office filed a petition to
revoke Day’s supervised release in June 2013. The government eventually sought to
proceed on three alleged violations of Day’s conditions: that he (1) traveled out of
state without permission, (2) consumed alcohol, and (3) failed to notify his probation
officer of changes in his living situation.

       At a revocation hearing, Day admitted that he left South Dakota without
permission, consumed alcohol, and failed to notify his probation officer ten days prior
to his changing his residence. In light of Day’s admitted violations, the district court
revoked Day’s supervised release.

       Based on the Grade C violations of supervised release and a criminal-history
category of VI, Day’s advisory guideline range was eight to fourteen months’
imprisonment. See USSG § 7B1.4(a). Citing Day’s refusal to listen to his probation
officer, repeated complaints about his living situation and drug testing arrangements,

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failure to inform his probation officer that he was leaving the state, and ongoing
alcohol use, the district court varied upward from the advisory range and sentenced
Day to serve twenty-eight months in prison, to be followed by two years of
supervised release.

       We review a sentence imposed after revocation of supervised release for abuse
of discretion. United States v. Thunder, 553 F.3d 605, 607 (8th Cir. 2009). Day
argues that the district court abused its discretion by giving insufficient justification
for its imposition of a sentence above the advisory range, but the number and
seriousness of the violations recounted above are a reasonable basis for the sentence.
See, e.g., United States v. Larison, 432 F.3d 921, 923-24 (8th Cir. 2006).

       Day also argues that the district court gave too much weight to his alcohol use
and the probation office’s difficulty in supervising him. But the court is required to
consider the history and characteristics of the defendant, 18 U.S.C. § 3583(c) (citing
18 U.S.C. § 3553(a)(1)), and under the deferential abuse-of-discretion standard
described in Gall v. United States, 552 U.S. 38, 51 (2007), the district court “has
substantial latitude to determine how much weight to give the various factors under
§ 3553(a).” United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009).
Although alcohol use and incorrigibility were bases for the revocation, the court is
not forbidden to consider those factors in deciding whether to vary from the advisory
range. United States v. Franik, 687 F.3d 988, 991 (8th Cir. 2012).

       Day also complains that the district court abused its discretion by imposing a
new term of supervised release to follow the twenty-eight-month term of
incarceration. We disagree that Day’s inability to comply with supervision after his
first release from custody means that the district court must exempt him from
supervised release on the second go-round. See 18 U.S.C. § 3583(h). The new term
of supervised release reasonably promotes the statutory purposes of specific



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deterrence and protection of the public.      See 18 U.S.C. § 3583(c) (citing
18 U.S.C. §§ 3553(a)(2)(B), 3553(a)(2)(C)).

      The judgment of the district court is affirmed.
                     ______________________________




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