                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-3087
                                   ___________

United States of America,              *
                                       *
            Plaintiff – Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
Louis Means,                           *
                                       * [UNPUBLISHED]
           Defendant – Appellant.      *
                                  ___________

                             Submitted: March 8, 2010
                                Filed: March 12, 2010
                                 ___________

Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges.
                           ___________

PER CURIAM.

        After Louis Means violated the terms of his supervised release, the district
court1 sentenced him to 18 months imprisonment, a nine month upward variance from
the advisory sentencing guideline range. Means contends that the district court abused
its discretion by procedurally erring and by imposing an unreasonable sentence. We
affirm.



      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
       In 1999 Means participated in a brutal assault while under the influence of
alcohol and drugs. He pled guilty to assault resulting in serious bodily injury, in
violation of 18 U.S.C. § 113(a)(3), and was sentenced to 96 months imprisonment
followed by three years of supervised release. Means completed his prison term and
began supervised release in December 2006, but by October 2007 he had committed
four alcohol related violations of the release's conditions. His release was revoked,
and he was sentenced to 6 months imprisonment followed by 24 months of supervised
release.

       Means completed his revocation prison sentence and began his second term of
supervised release on March 1, 2008. Within a month, he had been discharged from
a community alternative program for ingesting cough syrup, transferred to a work
release program, and enrolled in a substance abuse treatment program. On August 7,
2008, Means was allowed to relocate to an unsupervised residence with significant
conditions, including drug testing. By November 5, 2008, however, he was back in
a work release program as a result of two more alcohol related violations. While
there, he committed another alcohol related violation. Nevertheless he was allowed
to move to an unsupervised residence on June 10, 2009. Within ten days, Means was
arrested for disorderly conduct after police found him passed out in a bar.

       The probation office filed a petition to revoke Means' supervised release,
charging that he had on four occasions violated the special condition prohibiting the
consumption of alcohol and that he had entered a bar and committed the offense of
disorderly conduct, both of which also constituted violations. Means admitted to each
of the alleged violations, and the district court revoked his supervised release. The
court calculated the advisory sentencing guideline range at 3 to 9 months
imprisonment.

        Both parties requested an upward variance. The government requested a
sentence of exactly one year to be followed by another term of supervised release. It
justified its request as necessary to prevent the sentence from being truncated for good


                                          -2-
time served and to ensure that Means would serve an additional 6 months were he to
violate his supervised release again. Means also requested an upward variance,
seeking a prison term of one year and one day in order to take advantage of the time
served sentence reduction which the government sought to avoid. He also expressly
requested that the court forego imposing any further supervised release.

       After hearing argument from both parties, the district court inquired into the
viability of further supervised release:

      Court: Can you be supervised?
      ...
      Means: Truthfully, I really don't know.
      ...
      Court: [W]hat have you done about your drinking problem?
      Means: I have been to treatment numerous times. I have been trying to
      further my treatment program . . . [a]nd I haven't found that to be
      satisfying yet.
The court concluded that any further supervised release would be futile:

      [I]f you are going to drink, you are going to hurt people or you are going
      to get hurt yourself. . . . I don't believe you can be supervised. You have
      been offered multiple chances to quit drinking. You have had multiple
      uses of alcohol. Supervision [of] you is just a waste of time. You show
      no desire to comply with conditions of supervised release despite having
      your supervision revoked; serving six months of custody you still show
      little or no sign of rehabilitation. . . . The probation office has exhausted
      all efforts to assist you in becoming a sober, productive citizen. . . .
      [S]upervised release has been tried and tried and tried for you.

The court then sentenced Means to 18 months imprisonment with no supervised
release to follow. Neither party lodged any objections.

      On appeal Means challenges both the procedural integrity and the substantive
reasonableness of his revocation sentence. We review both contentions under the
same deferential abuse of discretion standard that applies to initial sentencing

                                          -3-
proceedings. See U.S. v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008). We must first
determine whether the district court committed a significant procedural error, such as
"failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence." Gall v. United States, 552 U.S 38, 51 (2007).

       Because Means failed to raise his procedural objections at sentencing, we
review them for plain error. Fed. R. Crim. P. 52(b). An unpreserved procedural error
will not result in reversal unless the complaining party shows that it was plain,
affected his substantial rights, and "'seriously affects the fairness, integrity, or public
reputation of judicial proceedings.'" United States v. Pirani, 406 F.3d 543, 550 (8th
Cir. 2005) (quoting United States v. Johnson, 520 U.S. 461, 467 (1997)). An error
affects substantial rights if there is a "reasonable probability" that in its absence a
more favorable sentence would have been imposed. Id. at 552. We will not engage
in conjecture, however. "'[W]here the effect of an error on the result in the district
court is uncertain or indeterminate—where we would have to speculate—the appellant
has not met his burden of showing a reasonable probability that the result would have
been different but for the error.'" Id. at 553 (quoting United States v. Rodriguez, 398
F.3d 1291, 1301 (11th Cir. 2005)).

       Means alleges that the district court failed to undertake an individualized
assessment of the facts of his case, to consider the § 3553(a) factors, and to explain
adequately the rationale underlying the sentence imposed. While "defendants do not
have a right to have their sentences handed down according to any particular script,"
United States v. Jones, 563 F.3d 725, 729 (8th Cir. 2009) (internal quotation marks
and citation omitted), the district court must make clear that it "considered the parties'
arguments and has a reasoned basis for [its decision]," Rita v. United States, 551 U.S.
338, 356 (2007). Although the district court's sentencing discussion was brief and
made no mention of § 3553(a), Means' failure to object at the time limits the scope of
our review. He has failed to carry his burden on plain error review to show a


                                           -4-
reasonable probability that he would otherwise have received a more favorable
sentence. See Pirani, 406 F.3d at 550.

        The district judge was clearly familiar with Means and the circumstances
relevant to his sentencing. This was the second time it had sentenced Means after
revocation of a term of supervised release, and they engaged in a lengthy colloquy
regarding his history and his suitability for a third term. These considerations were
relevant under § 3553(a)(1) and (2). The court also considered the advisory guideline
range and each party's arguments for an upward variance, as well as Means' request
not to impose additional supervised release. Means has not shown plain error. See
id. at 553.

       Means also challenges the substantive reasonableness of his sentence on the
basis that it is greater than necessary to accomplish the sentencing purposes identified
in § 3553(a)(2). In contrast to procedural objections, the failure to object at
sentencing does not limit our review of the substantive reasonableness of a sentence
to plain error. See United States v. Wiley, 509 F.3d 474, 477 (8th Cir. 2007). Our
review is for an abuse of discretion. Gall, 552 U.S at 51. We may consider the extent
of any variance from the advisory guideline range, "but must give due deference to the
district court's decision that the § 3553(a) factors, on a whole, justify [it]." Id.

       After careful review, we conclude that the sentence imposed by the district
court is not substantively unreasonable. Means had displayed a consistent inability
to adhere to the requirements of his supervised release. The court considered the
guideline range but agreed with both parties that an upward variance was justified.
Given the extent of Means' violations and the substance abuse which connects them
to his original underlying offense, we cannot conclude that the district court abused
its discretion by imposing the sentence that it did. See Gall, 552 U.S at 51; see also
United States v. Eagle Thunder, 553 F.3d 605, 608–09 (8th Cir. 2009) (finding 15
month upward variance from guideline range reasonable given defendant's repeated



                                          -5-
violations of supervised release); United States v. Larison, 432 F.3d 921 (8th Cir.
2006) (finding 49 month upward variance reasonable for same reason).

      Accordingly, the judgment of the district court is affirmed.
                          ______________________________




                                        -6-
