                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                            NOVEMBER 18, 2005
                                No. 05-11644                 THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                      D. C. Docket No. 99-00323-CR-KMM

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                     versus

NEAL O'HARA DANIELS,
                                                          Defendant-Appellant.

                          ________________________

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

                               (November 18, 2005)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Appellant Neal O’Hara Daniels appeals his sentence of 11 months

imprisonment, to be followed by 38 months supervised release, imposed after the
district court revoked his supervised release, pursuant to 18 U.S.C. § 3583(e).

During his revocation hearing, Daniels admitted to supervised release violations

and requested that he be sentenced to a term of imprisonment, without a term of

supervised release, based on his inability, or unwillingness, to comply with the

requirements of supervised release. The district court rejected the request, after

stating: “Your argument is basically [that] . . . the more unsuccessful you

demonstrate to the [c]ourt you are going to be on supervised release[,] the more

we’re going to reward you by not putting you on supervised release.”

      On appeal, Daniels argues that his sentence, while legal, was unreasonable

because: (1) he is a “troubled individual,” who was sexually abused as a child,

suffers from epileptic seizures, has attempted suicide, and has serious substance

abuse problems; and (2) he can successfully complete a term of imprisonment, but

has difficulty meeting the technical requirements of supervised release. He notes

that, under 18 U.S.C. § 3553(a), the district court was required to, but did not,

consider his history and characteristics.

      Prior to the Supreme Court’s decision in United States v. Booker, 543 U.S.

___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), we reviewed a sentence imposed

after revocation of supervised release using the “plainly unreasonable” standard set

forth in 18 U.S.C. § 3742(e)(4). See United States v. Scroggins, 910 F.2d 768, 769



                                            2
(11th Cir.1990). Although the Supreme Court in Booker excised § 3742(e) and

replaced the standard of review with a “reasonableness” standard, Booker, 543 U.S.

at __, 125 S. Ct. at 764-66, that standard is the same as the “plainly unreasonable”

standard in § 3742. Therefore, we will review Daniels’s sentence for

reasonableness.

      Upon finding that the defendant violated a condition of supervised release, a

court, after considering the factors set forth in § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-

(7), may revoke a term of supervised release 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, . . . except that a defendant . . . may
      not be required to serve on any such revocation . . . more than 3 years
      in prison if such offense is a Class B felony[.]

18 U.S.C. § 3583(e)(3). In addition, “the court may include a requirement that the

defendant be placed on a term of supervised release after imprisonment,” the

length of which “shall not exceed the term of supervised release authorized by

statute for the offense that resulted in the original term of supervised release, less

any term of imprisonment that was imposed upon revocation of supervised

release.” 18 U.S.C. § 3583(h). Chapter 7 of the Sentencing Guidelines, which

governs violations of supervised release, contains policy statements, one of which,

U.S.S.G. § 7B1.4, provides recommended ranges of imprisonment applicable upon



                                            3
revocation. Policy statements are merely advisory and thus, non-binding. United

States v. Cook, 291 F.3d 1297, 1301 (11th Cir. 2002). It is enough if “there is

some indication the district court was aware of and considered [Chapter 7 of the

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

Additionally, the district court may impose any sentence within the statutory

maximum. United States v. Hofierka, 83 F.3d 357, 362-63 (11th Cir.1996).

      Because the record demonstrates that (1) Daniels’s sentence legally was

imposed; (2) the district court’s denial of his request for a longer term of

imprisonment, rather than an additional term of supervised release, was based on

its hesitation to reward defendants who are unsuccessful on supervised release; and

(3) the district court properly considered the § 3553(a) factors, we conclude that

Daniels’s sentence was reasonable. Accordingly, we affirm Daniels’s sentence.

      AFFIRMED.




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