                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                August 9, 2007
                               No. 07-10843                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 05-00026-CR-6

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

EMORY LINHART LARISCY,

                                                           Defendant-Appellant.


                         ________________________

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

                               (August 9, 2007)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Emory Linhart Lariscy appeals the district court’s imposition of a 24-month
term of incarceration upon revocation of his supervised release. For the reasons

that follow, we affirm.

                                I. BACKGROUND

      In August 2006, Lariscy was convicted of making a threat against the

President of the United States, in violation of 18 U.S.C. § 871(a), and sentenced to

15 months’ imprisonment to be followed by a three-year term of supervised

release. Special Condition Number 2 of Lariscy’s supervised release prohibited

him from consuming alcoholic beverages. Standard Condition Number 2 required

that Lariscy report to the probation officer and submit a truthful and complete

written report within the first five days of each month.

      On the evening of December 21, 2006, U.S. Probation Officer David Lamb

made an unannounced visit to Lariscy’s home and observed Lariscy sitting with an

open can of beer while entertaining a female friend. Lariscy admitted to Officer

Lamb that he had been drinking and stated that he was “too old to change.” Based

on this encounter, on January 10, 2007, Officer Lamb filed a petition to revoke

Lariscy’s supervised release.

      On January 11, 2007, Officer Lamb phoned Lariscy and told him to report to

the probation office for a urinalysis scheduled later that day. Lariscy asked Officer

Lamb to postpone the urinalysis until the next day, but Lamb refused. Lariscy



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became upset and stated that “he didn’t know he was living in Nazi, Georgia.”

Lariscy failed to report to the probation office for his urine test.

      On January 12, 2007, Officer Tony Taylor went to Lariscy’s home to

execute the arrest warrant arising from the January 10th revocation petition.

Lariscy greeted Taylor in a “very hostile” manner and reiterated his references to

living in “Nazi, Georgia.” Officer Taylor saw Lariscy with a beer, smelled the

aroma of alcohol on Lariscy’s person, and surmised that he was intoxicated. After

Lariscy calmed down, Officer Taylor arrested him.

      On January 25, 2007, Officer Lamb filed an addendum to the revocation

petition, reporting Lariscy’s refusal to submit to a urinalysis on January 11th and

his consumption of alcohol January 12th.

      At the revocation hearing, the district court heard the testimony of Officers

Lamb and Taylor regarding the events of December 21, 2006 and January 12,

2007. On cross-examination, Officer Lamb testified that he had visited Lariscy’s

home twice before his December 2006 visit and had not observed any other

infractions. Officer Taylor testified that he did not use an intoximeter on Lariscy

the day he arrested him, and that although he had been to Lariscy’s home before,

none of those previous encounters had caused him to believe that Lariscy was

violating the conditions of his supervised release. The court also considered



                                            3
written statements of three employees of a county detention center made several

hours after Lariscy’s arrest. All three of the detention center employees stated that

Lariscy did not appear to be intoxicated at the time they observed him, which was

five to six hours after his arrest.

       Before imposing sentence, the district court noted that it had been “very

lenient” in imposing Lariscy’s initial sentence. The court stated that Lariscy “has a

propensity to drink or to consume alcohol, and then he is capable in the Court’s

view of great mischief when he does that.” In discussing Lariscy’s potential for

violence, the district court noted that Lariscy had previously threatened an attorney

who was administering an estate, that federal agents had unsuccessfully attempted

to dissuade Lariscy from threatening the President, and that in another criminal

case, a defendant had stolen a “small arsenal” from Lariscy. The court went on to

state that:

              I thought Mr. Lariscy would heed the Court’s sentence on that
       previous occasion last. The Court, in my view, gave him a very
       lenient sentence. The probation officer points that out. But yet, Mr.
       Lariscy has the potential to be violent, or at least to give people cause
       regarding his threats.

             After he was released by the prison authorities, within three
       months, we have him consuming alcohol. It seems that all previous
       occasions when he was in trouble it was due to the consumption of
       alcohol. The previous sentence imposed was 12 to 18 months below
       the applicable guideline imprisonment range.



                                           4
              So the Court will not extend much more sympathy to thinking
      this is an old man with a loud mouth and a violent temperament. If I
      thought he was harmless, totally harmless, I would fashion a sentence
      in accordance with that.

After stating that it had “considered the Sentencing Commission’s Chapter 7

advice,” the district court sentenced Lariscy to 24 months’ imprisonment. Lariscy

appeals.

                          II. STANDARDS OF REVIEW

      We review a sentence imposed upon revocation of supervised release for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.

2006). Our “[r]eview for reasonableness is deferential,” and “the party who

challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both [the] record and the factors in [18 U.S.C.

§ 3553(a)].” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We

review the district court’s decision to exceed the advisory sentencing range in

Chapter 7 of the Sentencing Guidelines for an abuse of discretion. United States v.

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

                                 III. DISCUSSION

      Upon finding by a preponderance of the evidence that a defendant has

violated a condition of his supervised release, a district court may, after

considering the factors set forth in § 3553(a), revoke the term of supervised release

                                           5
“and require the defendant to serve in prison all or part of the term of supervised

release authorized by statute for the offense that resulted in such term of supervised

release.” 18 U.S.C. § 3583(e); Sweeting, 437 F.3d at 1107. When revoking a term

of supervised release pursuant to § 3583(e), pertinent § 3553(a) factors include:

the nature and circumstances of the offense, the history and characteristics of the

defendant, providing just punishment for the offense, affording adequate

deterrence, the need to protect the public from further crimes of the defendant, the

Sentencing Guidelines range, and the relevant policy statements of the Sentencing

Commission. 18 U.S.C. § 3553(a).

      Chapter 7 of the Guidelines governs violations of supervised release and

contains policy statements providing recommended ranges of imprisonment

applicable upon revocation. U.S.S.G. § 7B1.4, p.s.; Silva, 443 F.3d at 799. This

court has consistently held that the policy statements of Chapter 7 are merely

advisory and not binding. United States v. Aguillard, 217 F.3d 1319, 1320 (11th

Cir. 2000). Thus, although “the district court is required to consider the policy

statements, it is not bound by them.” Silva, 443 F.3d at 799. “When exceeding the

recommended range, the court must normally indicate that it considered the

Chapter 7 policy statements.” Id. “[I]t is enough that there is some indication that

the district court was aware of and considered them.” Aguillard, 217 F.3d at 1320.



                                          6
               A. Consideration of the 18 U.S.C. § 3553(a) Factors

      Lariscy argues that the 24-month sentence imposed by the district court was

unreasonable because the court failed to adequately consider the factors set forth in

18 U.S.C. § 3553(a). We disagree.

      Although the court did not explicitly reference § 3553(a) in imposing

sentence, the court’s discussion of Lariscy’s history, his underlying offense of

conviction, and his potential for violence demonstrates that the court considered

the § 3553(a) factors in imposing the sentence. For example, the court noted that

Lariscy: (1) “has a propensity to drink or to consume alcohol,” which makes him

capable “of great mischief,” (2) has the potential to be violent, (3) violated the

conditions of his supervised release a mere three months after his release from

prison, and (4) had received a “very lenient” initial sentence. These statements

establish that the court considered Lariscy’s history and characteristics, see 18

U.S.C. § 3553(a)(1), the need to protect the public from further crimes of Lariscy,

see id. § 3553(a)(2)(C), and the need to afford adequate deterrence to criminal

conduct, see id. § 3553(a)(2)(B). Moreover, the court’s statements that federal

agents had unsuccessfully attempted to dissuade Lariscy from threatening the

President reflects the court’s consideration of the nature and circumstances of

Lariscy’s underlying offense, see id. § 3553(a)(1). And the court stated explicitly



                                           7
that it “considered the Sentencing Commission’s Chapter 7 advice,” see id.

§ 3553(a)(5). As such, the record establishes that the district court considered the

§ 3553(a) factors, including the pertinent policy statements of the Sentencing

Commission, and Lariscy’s reasonableness challenge fails in this regard.1

                B. Whether the Sentence Is Greater than Necessary

       Lariscy also argues that his sentence is unreasonable because it is greater

than necessary to meet the goals of the Sentencing Reform Act. We are

unpersuaded.

       In imposing a sentence that exceeded the Chapter 7 advisory range,2 the

district court stated that it had “considered the Sentencing Commission’s Chapter 7

advice.” See Silva, 443 F.3d at 799; Aguillard, 217 F.3d at 1320. And, as

discussed above, the court discussed Lariscy’s previous “very lenient sentence,”

his “potential to be violent,” the “great mischief” that ensues from his “propensity

to drink or consume alcohol,” and the passage of a mere three months before he


       1
         The Government asserts that because Lariscy failed to object at sentencing either that
his sentence was unreasonable or that the district court did not consider the § 3553(a) factors, we
should review Lariscy’s challenge to the reasonableness of his sentence for plain error. But we
need not decide this issue, because even under a reasonableness standard, Lariscy’s appeal fails.
       2
         Lariscy’s underlying offense of conviction carries a mandatory maximum sentence of
five years’ imprisonment and is considered a Class D felony. See 18 U.S.C. § 3559(a)(2); 18
U.S.C. § 871(a). For a Class D felony, 18 U.S.C. § 3583(e)(3) authorizes a term of supervised
release of not more than two years. 18 U.S.C. § 3583(e)(3). Under the Chapter 7 policy
statements, Lariscy’s advisory Guidelines range of incarceration upon revocation was three to
nine months’ imprisonment.

                                                 8
violated the terms of his supervised release. On this record, we cannot say that

Lariscy’s 24-month sentence was unreasonable or that the district court’s

imposition of this sentence was an abuse of discretion.

                               IV. CONCLUSION

      For the foregoing reasons, we AFFIRM.




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