                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1537
                                   ___________

United States of America,               *
                                        *
              Appellee,                 *
                                        * Appeal from the United States
         v.                             * District Court for the
                                        * District of South Dakota.
Kevin Merrival,                         *
                                        *
              Appellant.                *
                                   ___________

                             Submitted: December 12, 2007
                                Filed: April 4, 2008
                                 ___________

Before RILEY, COLLOTON, and BENTON, Circuit Judges.
                            ___________

COLLOTON, Circuit Judge.

       After Kevin Merrival violated the terms of his supervised release, the district
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court sentenced him to 24 months’ imprisonment with no further term of supervised
release. Merrival argues that the district court failed to examine factors supporting
leniency under 18 U.S.C. § 3553(a), and imposed a term of imprisonment that is
substantively unreasonable. We hold that the district court’s sentence was not an
abuse of discretion, and we therefore affirm.


         1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
       On September 10, 2001, Kevin Merrival pled guilty to one count of distributing
cocaine. The district court sentenced him to 18 months’ imprisonment, followed by
72 months’ supervised release. Merrival completed the term of imprisonment on
January 8, 2003, but violated a condition of his supervised release by using drugs and
alcohol. On August 17, 2004, after a revocation proceeding, the district court
sentenced him to 11 months’ imprisonment followed by 60 more months’ supervised
release. See 18 U.S.C. § 3583(h). Merrival completed this second term of
imprisonment and commenced supervised release again on June 23, 2005.

       In October 2005, Merrival was arrested for driving under the influence of
alcohol, and in December 2006, he tested positive for cocaine. Merrival’s probation
officer warned him each time, but no action was taken to revoke his release. On
January 22, 2007, a Rapid City police detective called Merrival’s probation officer to
report that he was a suspect in a major shoplifting ring. The probation office
instructed Merrival to report to City/County Alcohol and Drug Program (Detox) until
an investigation could be completed. At Detox, when directed to provide a urine
sample for a drug test, Merrival tried to substitute his son’s urine for his own.
Merrival’s own sample later tested positive for cocaine. Based on Merrival’s cocaine
use, the government petitioned to revoke his second term of supervised release. The
district court granted the government’s petition, and sentenced Merrival to 24 months’
imprisonment, the maximum sentence permitted under 18 U.S.C. § 3583(e)(3). The
court declined to order additional supervised release.

       A district court must begin the sentencing procedure by calculating the
applicable guidelines range. Gall v. United States, 128 S. Ct. 586, 596 (2007). The
court should then “consider all of the § 3553(a) factors to determine whether they
support the sentence requested by a party.” Id. A district court also must “adequately
explain the chosen sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Id. at 597.



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        On appeal, we may consider both the procedural soundness of the district
court’s decision and the substantive reasonableness of the sentence imposed. We
review a revocation sentence under the same “reasonableness” standard that applies
to initial sentencing proceedings, United States v. Cotton, 399 F.3d 913, 916 (8th Cir.
2005), and in accordance with Gall, we review the substantive reasonableness of the
sentence under a deferential abuse-of-discretion standard. 128 S. Ct. at 597.

       Merrival argues that the district court abused its discretion by failing to consider
his good work ethic, his financial responsibility to his family, and the fact that his
recidivism was influenced by severe drug addiction. We disagree. The district court
began by correctly calculating the advisory guideline range of 5 to 11 months’
imprisonment. See USSG § 7B1.4(a). The court then noted that it had reviewed
Merrival’s original presentence report and his previous opportunities to complete
supervised release. Merrival and the government both explained that the defendant
had been employed throughout his adult life, and that he was financially responsible
for “quite a few children.” The district court plainly heard those statements, but
nonetheless concluded that a further term of supervised release was inadequate to
deter or rehabilitate Merrival. The court remarked that it had given Merrival “repeated
chances,” but that he could not “seem to get away from alcohol or drugs,” and that
additional supervised release would be “simply a waste of time.” Accordingly, the
court imposed a term of 24 months’ imprisonment, with no additional supervised
release to follow.

      We conclude that the district court provided an adequate explanation of the
sentence imposed, and that the sentence is not substantively unreasonable. Given
Merrival’s recidivism, the ineffectiveness of prior efforts at rehabilitation, and
Merrival’s recent attempt to provide a false urine sample for a drug test, it was not an
abuse of discretion to conclude that further supervised release would be fruitless. The
term of imprisonment imposed was greater than that recommended by the advisory
guidelines, but the court also refrained from requiring Merrival to serve an additional

                                           -3-
term of supervised release. Particularly given the impermissibility of proportionality
review after Gall, 128 S. Ct. at 596, we cannot say that it was unreasonable under
these circumstances for the district court to impose a term of 24 months’
imprisonment without additional supervision to follow.

      The judgment of the district court is affirmed.
                     ______________________________




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