           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 30, 2009
                                     No. 08-51295
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARCUS JAMES MILLIGAN,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:06-CR-44-1


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Marcus James Milligan appeals the 24-month sentence he received
following the revocation of his supervised release. He argues that the district
court erred in considering a recent drug possession arrest and several positive
drug tests that were not listed as violations on the instant revocation petition.
Milligan also argues that the 24-month sentence imposed is plainly
unreasonable, that the district court failed to consider the applicable sentencing
guidelines’ policy statements, and that the district court failed to consider the

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-51295

sentencing factors in 18 U.S.C. § 3553(a). Because Milligan did not object in the
district court, we review for plain error only. See United States v. Jones, 484
F.3d 783, 792 (5th Cir. 2007).
      The transcript shows that the district court’s decision to revoke
supervision was based on Milligan’s continued violations of the terms of his
supervised release rather than the circumstances of any particular prior
violation. The district court found that it had been lenient after two prior
violations and that Milligan was not entitled to any further leniency.
      Milligan also has not shown that the district court plainly erred in
imposing his sentence.    Milligan was sentenced to the statutory maximum
rather than the recommended guidelines range of 3 to 9 months of
imprisonment. We conclude that the district court implicitly considered the
applicable policy statement in the guidelines when it correctly stated the
recommended guidelines range. See United States v. Whitelaw, 580 F.3d 256,
261 (5th Cir. 2009).     We also conclude that the district court implicitly
considered the § 3553(a) factors when it discussed Milligan’s inability or
continued unwillingness to comply with the terms of supervised release. See id.
To the extent that Milligan’s claim also implicates the sufficiency of the district
court’s reasons, we conclude that any error does not merit reversal under a plain
error standard of review because Milligan can not show that such error affected
his substantial rights or “‘seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings.’”    See id. at 264-65.    Finally, Milligan’s
sentence at the statutory maximum was not plain error; this court routinely
upholds revocation sentences that are above the advisory policy range but within
the statutory maximum. See id. at 265.
      AFFIRMED.




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