              Case: 12-13334   Date Filed: 04/05/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-13334
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 8:96-cr-00072-JDW-1



UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellee,

                                     versus

GENE TATUM,
a.k.a. Dois Gene Tatum, Jr.,
a.k.a. Chip Tatum,

                                                        Defendant - Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (April 5, 2013)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Gene Tatum appeals a 25-month term of supervised release, set to follow an

unchallenged 11-month term of imprisonment, which the district court imposed

upon revocation of an original term of supervised release. He argues the term is

substantively unreasonable. For the reasons that follow, we affirm.

       Tatum was convicted in 1996 of an embezzlement conspiracy. In 1998, we

vacated Tatum’s original sentence, United States v. Tatum, 138 F.3d 1344 (11th

Cir. 1998), and the district court scheduled resentencing. Unbeknownst to the

court, however, Tatum had absconded months before. He remained at large until

he was arrested in Panama in 2003. When he at last appeared at his resentencing

hearing, Tatum received 14 months’ imprisonment to be followed by 3 years’

supervised release. He did not appeal.

       In April 2004, Tatum began supervised release. But by November of that

year, he had once again absconded, this time to Colombia. Although a warrant for

his arrest issued in 2005, Tatum remained a fugitive until 2012 when he voluntarily

surrendered to authorities in Colombia. The United States Probation Office then

petitioned the district court for revocation of Tatum’s supervised release based on

his unauthorized travel, failure to report, and failure to notify probation of changes

in residence and employment in 2004 and 2005.1 The allegations subjected Tatum


1
  Although Tatum’s term of supervised release had expired long before 2012, the district court
retained revocation jurisdiction because the 2005 warrant alleged supervised-release violations
before expiration of the term. See 18 U.S.C. § 3583(i).
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to a guidelines range of 5 to 11 months’ imprisonment and a new term of up to 5

years’ supervised release.

      At his revocation hearing, Tatum admitted the alleged supervised-release

violations. The district court revoked Tatum’s supervised release and sentenced

him to 11 months’ imprisonment to be followed by 25 months’ supervised release.

Tatum objected to the reasonableness of the supervised-release term, citing his

extensive military service, which included service in Vietnam. The district court

overruled the objection, and this appeal followed.

      We review for an abuse of discretion the reasonableness of a sentence

imposed after revocation of supervised release. United States v. Cunningham, 607

F.3d 1264, 1266 (11th Cir. 2010). The party challenging the sentence bears the

burden of establishing that the sentence is unreasonable in light of the record and

the 18 U.S.C. § 3553(a) sentencing factors. United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). “The weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court . . . .” United States

v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (internal quotation marks omitted).

      Tatum contends that the district court abused its discretion by failing to

adequately consider his military service. He emphasizes that, while serving in

combat in Vietnam, he was captured and tortured by enemy forces, an experience

that caused enduring physical and psychological challenges. And he cites Porter v.


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McCollum, 558 U.S. 30 (2009), and United States v. Kimbrough, 552 U.S. 85

(2007), for the proposition that, as a veteran, he deserves leniency.

      Although Tatum’s courageous sacrifice is undoubtedly worthy of

consideration, we cannot say the district court abused its discretion in concluding

that his service was “not an excuse” for his transgressions. Here, the district court

considered the § 3553(a) factors, finding that the sentence imposed reflected the

seriousness of Tatum’s conduct, promoted respect for the law, protected the public,

and acted as a deterrent. The court, as a result, imposed a within-guidelines term

of supervised release. We ordinarily expect a within-guidelines sentence to be

reasonable, although it is not automatically so. See United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2008). And the decision to impose a within-guidelines term of

supervised release in this case does not conflict with Porter, in which the Supreme

Court simply held that counsel’s failure to present mitigating evidence of a

defendant’s background was a basis for an ineffective-assistance claim. 558 U.S.

at 452-53, 455-56. The same is true for Kimbrough, in which the Supreme Court

simply noted with approval the use of a defendant’s military service as a mitigating

factor at sentencing. 552 U.S. at 110. The district court in this case considered

Tatum’s military service but found other § 3553(a) factors weighed more heavily, a

decision well within the court’s discretion. See Clay, 483 F.3d at 743.




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Considering Tatum’s tendency to wander, the district court’s decision to impose a

25-month supervised-release term was not an abuse of discretion.

      AFFIRMED.




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