                        REVISED November 26, 2007

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

                                                                            FILED
                                     No. 07-10041                      November 21, 2007
                                   Summary Calendar
                                                                     Charles R. Fulbruge III
                                                                             Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

MICHAEL DEVAIN SMITH

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 4:06-CR-152-ALL


Before GARWOOD, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Michael Devain Smith appeals the sentence that he received upon the
revocation of his supervised release. At the sentencing hearing, Smith requested
a sentence within the range of four to ten months imprisonment recommended
in U.S.S.G. § 7B1.4 (policy statement). He argues on appeal that the sentence



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10041

imposed by the district court of twenty-four months’ imprisonment and thirty-six
months supervised release is unreasonable.
      A large portion of Smith’s brief is dedicated to his argument regarding the
proper standard of review for his claim that his revocation sentence is
unreasonable. He argues that after United States v. Booker, 543 U.S. 220 (2005),
sentences imposed upon revocation of supervised release should be reviewed
under the “reasonable” standard of review instead of the “plainly unreasonable”
standard which we applied before Booker. See United States v. Headrick, 963
F.2d 777 (5th Cir. 1992). He also claims that this court’s holding in United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005), extends to revocation
sentences such that a district court is required to carefully articulate its reasons
when imposing a revocation sentence outside of the section 7B1.4 range. Finally,
Smith argues that a revocation sentence within the statutory maximum allowed
is not necessarily reasonable.
      This court has yet to decide which standard of review is applicable to
revocation sentences. See United States v. Jones, 484 F.3d 783, 791-92 (5th Cir.
2007) (recognizing that there is a circuit split regarding the standard of review
for revocation sentences, but declining to reach the issue because the appellant
did not preserve the objection, so his complaint was subject to “plain error”
review). We decline to address this issue now as Smith’s argument fails under
both the “reasonable” and the “plainly unreasonable” standards of review. The
record demonstrates that the district court considered the relevant 18 U.S.C. §
3553(a) sentencing factors as well as the section 7B1.4 range and the policy
statement when making its decision. At the sentencing hearing, the district
court listed the numerous supervised release conditions that Smith violated, and
stated that the prison sentence would serve as a proper punishment and a
deterrent from criminal activity, and that the supervised release was necessary
because Smith remained a danger to the community. Smith does not contest

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                                  No. 07-10041

that validity of the alleged violations, nor does he argue that they are irrelevant
or that the district court’s reasoning is flawed. He merely makes the wholly
conclusory arguments that the sentence is too long and that the district court did
not reasonably apply the section 3553 factors.        The district court plainly
recognized that the section 7B1.4 range was four to ten months and provided
sufficient reasons for the sentence it imposed, and Smith’s argument that his
sentence is unreasonable fails under either of the potential standards of review.
      Smith asserts in a footnote that his section 7B1.4 range was determined
in violation of his Fifth and Sixth amendment rights based on admitted facts for
which he maintained “no right of jury trial, indictment, or proof beyond a
reasonable doubt.” He does not brief this issue sufficiently and has waived any
such argument. See United States v. Thames, 214 F.3d 608, 612 n.3 (5th Cir.
2000) (finding that a party’s argument was deemed waived because it was not
listed in the “Statement of Issues Presented for Review” or addressed in the body
of his brief). For purposes of preservation for further review, Smith also asserts
that applying a presumption of reasonableness to sentences within a properly
calculated guidelines range is unconstitutional. Because Smith’s revocation
sentence exceeded the section 7B1.4 range, such a presumption is not relevant
to his case.
      Accordingly, the district court’s judgment is
                                  AFFIRMED.




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