                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                         FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                      APRIL 11, 2008
                                                   THOMAS K. KAHN
                             No. 07-13105
                                                        CLERK
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 01-00077-CR-J-24HTS

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                   versus

ROY SHANE JACKSON,

                                                   Defendant-Appellant.

                        ________________________

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

                              (April 11, 2008)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Roy Jackson appeals his 18-month term of imprisonment imposed
by the district court based upon its finding that Jackson violated his supervised

release for drug-related conduct. This was the second revocation of Jackson’s

supervised release.

      On appeal, Jackson argues that the district court’s sentence was excessive

and unreasonable. Specifically, he contends that the district court abused its

discretion in imposing an upward variance because it based the variance upon a

ground already taken into consideration by the guidelines, namely, his past

supervised release violations and criminal history. He argues that the district court

substituted its own judgment for that of the Sentencing Commission and Congress

in determining the proper weight to be afforded to his criminal history. Further, he

argues that the district court did not find that his criminal history was

underrepresented, and, therefore, it was required to follow the criminal history

range provided by the Guidelines. In addition, Jackson argues that if we determine

that his counsel failed to preserve this issue for appellate review, then he received

ineffective assistance of counsel because he would win on appeal if the issue had

been preserved.

      After United States v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738, 767

(2005), we review a federal sentence imposed upon revocation of supervised

release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07



                                           2
(11th Cir. 2006). The party challenging the sentence bears the burden of

establishing that the sentence was unreasonable. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). The Supreme Court in Gall v. United States, clarified

that “[r]egardless of whether the sentence imposed is inside or outside the

Guidelines range, the appellate court must review the sentence under an

abuse-of-discretion standard.” __ U.S. __, __, 128 S. Ct. 586, 597, 169 L. Ed. 2d

445 (2007) (in the context of an initial sentencing appeal). With respect to

sentences imposed outside the applicable guideline range, the district court must

“ensure that the justification is sufficiently compelling to support the degree of the

variance,” but extraordinary circumstances are not required to justify such a

sentence. Id. at 595, 597. The appellate court “may consider the extent of the

deviation, but must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597.

Similarly, we review for abuse of discretion a district court’s decision to exceed the

sentencing range in Chapter 7 of the Sentencing Guidelines. United States v. Silva,

443 F.3d 795, 798 (11th Cir. 2006).

      “Under 18 U.S.C. § 3583(e), a district court may, upon finding by a

preponderance of the evidence that a defendant has violated a condition of

supervised release, revoke the term of supervised release and impose a term of



                                           3
imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”

Sweeting, 437 F.3d at 1107; see 18 U.S.C. § 3583(e)(3). Under § 3583(e), the

relevant § 3553(a) factors are (1) the nature and circumstances of the offense and

the history and characteristics of the defendant, (2) the need for deterrence, (3) the

need to protect the public, (4) the need to provide the defendant with educational or

vocational training or medical care, (5) the Sentencing Guidelines range and

pertinent policy statements of the Sentencing Commission, (6) the need to avoid

unwanted sentencing disparities, and (7) the need to provide restitution to victims.

18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7); see 18 U.S.C. § 3583(e).

      We have held that because the Chapter 7 Guidelines are advisory, “it is

enough that there is some indication the district court was aware of and considered

them.” United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). The

applicable guideline range for committing a Grade C violation of supervised

release is 3-9 months’ imprisonment for defendants with a category I criminal

history. U.S.S.G. § 7B1.4(a). Under § 3583(e)(3), 24 months’ imprisonment is the

statutory maximum sentence for a Grade C violation giving rise to the revocation

of supervised release. 18 U.S.C. § 3583(e)(3). A Grade C violation is “conduct

constituting (A) a federal, state, or local offense punishable by a term of

imprisonment of one year or less; or (B) a violation of any other condition of



                                           4
supervision.” U.S.S.G. § 7B1.1(a)(3).

      After reviewing the record and reading the parties’ briefs, we conclude that

Jackson’s argument is without merit because his challenge relies upon the incorrect

assertion that the district court varied upward from the guidelines range based upon

a factor that was accounted for in the guidelines calculation. Jackson’s guidelines

range was based upon his initial criminal history category of I and the nature of the

instant violation. Accordingly, because the record clearly demonstrates that the

district court did not abuse its discretion in varying upward based upon Jackson’s

continued inability to abide by the terms of his supervised release, we affirm

Jackson’s sentence.

      AFFIRMED.




                                          5
