                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________            FILED
                                                U.S. COURT OF APPEALS
                             No. 11-11571         ELEVENTH CIRCUIT
                         Non-Argument Calendar         FEB 1, 2012
                       ________________________        JOHN LEY
                                                         CLERK
                  D.C. Docket No. 1:08-tp-20148-FAM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JAMES BRYANT,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 1, 2012)



Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      James Bryant appeals his sixty-month sentence imposed following the

revocation of his supervised release.1 On appeal, Bryant argues that his sentence

exceeds the applicable statutory maximum. Bryant also asserts, in the alternative,

that his sentence is substantively unreasonable. After careful review, we affirm.

                                                I.

      Bryant first argues that his sixty-month sentence exceeds the applicable

statutory maximum. According to Bryant, the offense for which he was originally

sentenced is a Class C felony, and as a consequence, the maximum term of

imprisonment that could be imposed upon the revocation of his supervised release

is twenty-four months. The government responds by noting that the defendant

invited the district court to impose a sentence beyond twenty-four months. Indeed,

at sentencing, Bryant urged the district court to impose a term of imprisonment

between thirty and thirty-seven months. The government asserts that this

invitation of error precludes us from reviewing Bryant’s claim.

      We need not resolve the question of invited error because Bryant’s

argument must be rejected on the merits. Under 18 U.S.C. § 3583, a district may

impose a term of imprisonment of up to sixty months if the offense that resulted in

the term of supervised release was a Class A felony. 18 U.S.C. § 3583(e)(3). In

      1
          The parties have stipulated that James Bryant is also known as Marc Jean.

                                                2
contrast, if the underlying offense was a Class C felony, the maximum term of

imprisonment is twenty-four months. Id. Generally speaking, an offense with a

maximum term of life imprisonment is a Class A felony. Id. § 3559(a)(1). An

offense with a statutory maximum between ten and twenty-five years is a Class C

felony. Id. § 3559(a)(3).

       Bryant was originally convicted of one count of possession with intent to

distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Bryant argues that

the maximum penalty for this offense was twenty years. According to Bryant, this

is because the indictment did not specify the quantity of cocaine base that he

possessed with intent to distribute. Bryant points out that, following the Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),

we held that “the quantity of drugs must be charged in the indictment and proven

to a jury beyond a reasonable doubt if a defendant is to be sentenced under a

penalty provision of 21 U.S.C. § 841 . . . that contains a quantity amount.” United

States v. Gallego, 247 F.3d 1191, 1196–97 (11th Cir. 2001).2


       2
        Under 21 U.S.C. § 841 at it existed at the time of Bryant’s original offense, the maximum
punishment for an offense involving fifty grams or more of cocaine base was life imprisonment. See
21 U.S.C. § 841(b)(1)(A)(iii) (1994), amended by 21 U.S.C. § 841(b)(1)(A)(iii) (Supp. 2A 2011).
The maximum sentence for an offense involving between five grams and fifty grams of cocaine base
was forty years imprisonment. Id. § 841(b)(1)(B)(iii), amended by 21 U.S.C. § 841(b)(1)(B)(iii)
(Supp. 2A 2011). The maximum sentence for an offense not involving these quantities of cocaine
base was twenty years imprisonment. Id. § 841(b)(1)(C).

                                                3
       Bryant’s argument neglects the fact that the judgment of conviction in his

case was entered on his guilty plea, rather than on a jury verdict.3 In his plea

agreement, Bryant stipulated that his offense involved fifty-seven grams of

cocaine base and that as a consequence, the maximum penalty he faced was life

imprisonment. The Supreme Court’s decision in Apprendi allows a fact that

increases the possible maximum penalty not only to be “proved to a jury beyond a

reasonable doubt,” but also to be “admitted by the defendant.” United States v.

Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756 (2005); see also United States v.

Steed, 548 F.3d 961, 978–79 (11th Cir. 2008). Because Bryant admitted a fact

that supports the classification of his original offense as a Class A felony, the

maximum term of imprisonment that could be imposed upon the revocation of his

supervised release was sixty months. See 18 U.S.C. § 3583(e)(3). The district

court’s decision to sentence him to sixty months imprisonment therefore did not

exceed the statutory maximum.


       3
          Bryant’s argument also assumes that Apprendi is in some sense “retroactively
applicable”—that is, it should be considered in determining the maximum sentence that can be
imposed following the revocation of a term of supervised release that was imposed prior to the
Supreme Court’s decision in Apprendi itself. The government correctly points out that we have
rejected the notion that Apprendi is retroactively applicable in other contexts. See Dohrmann v.
United States, 442 F.3d 1279, 1282 (11th Cir. 2006) (holding that Apprendi is not reotractively
applicable to a claim under 28 U.S.C. § 2241); McCoy v. United States, 266 F.3d 1245, 1247 (11th
Cir. 2001) (holding that Apprendi is not retroactively applicable to a claim under 28 U.S.C. § 2255).
We need not determine whether Bryant’s assumption is correct because even if Apprendi were to
apply in this context, the district court’s decision is consistent with that case.

                                                 4
                                         II.

      Bryant also argues that his sentence is substantively unreasonable. We

review a sentence imposed upon the revocation of supervised release for abuse of

discretion. See United States v. Andrews, 330 F.3d 1305, 1307 (11th Cir. 2003).

This review “involves examining the totality of the circumstances, including an

inquiry into whether the statutory factors in [18 U.S.C.] § 3553(a) support the

sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008). Under the abuse of discretion standard, we will vacate a sentence only if

we are “left with the definite and firm conviction that the district court committed

a clear error of judgment in weighing the § 3553(a) factors.” United States v. Irey,

612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted). “We

may not—it bears repeating—set aside a sentence merely because we would have

decided that another one is more appropriate.” Id. at 1191.

      In this case, the district court imposed the statutory maximum of sixty

months imprisonment based on five violations of the terms of Bryant’s supervised

release. More specifically, the district court imposed a total of five months

imprisonment for 1) Bryant’s failure to report to his probation officer every

Monday; 2) his failure to notify his probation officer of a change in residence; 3)

his failure to answer truthfully questions about his name and immigration status;

                                          5
and 4) his decision to leave a judicial district without the permission of his

probation officer. The district court also imposed a consecutive sentence of fifty-

five months imprisonment for Bryant’s separate failure to refrain from violating

the law. This occurred when Bryant was arrested for possessing cocaine with the

intent to distribute in violation of Georgia law.

       Bryant argues that the fifty-five month sentence imposed with respect to

this last violation is unreasonable because the offense for which he was arrested

would not ordinarily trigger a sentence of that length. This argument, however,

addresses only one factor that the district court was required to consider—“the

nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1). In sentencing

Bryant, the district court also expressed the view that “society needs to be

protected and you have not been rehabilitated.” The district court thus gave

weight to other Section 3553(a) factors: the need to “afford adequate deterrence to

criminal conduct,” “protect the public from further crimes of the defendant,” and

“provide the defendant with . . . correctional treatment.” 18 U.S.C. §

3553(a)(2)(B), (C), (D).

      Bryant does not otherwise explain how the need for deterrence and the

importance of rehabilitation were so outweighed by the purported minor nature of

his offense such that the district court committed a “clear error of judgment” in

                                          6
weighing those factors. Irey, 612 F.3d at 1190. And on this record, we cannot say

that there was clear error. During allocution, Bryant asked the district court

several times to give him “one more chance” to “be a better man.” The district

court’s conclusion that, despite these statements, there is a significant risk of

recidivism and a compelling need for rehabilitation is not ours to overturn.

      Bryant also argues that the district court did not give adequate weight to his

“family ties and responsibilities to his children.” Again, we cannot say that the

district court committed a “clear error of judgment.” Id. During allocution,

Bryant told the district court that he has two children, but he also said that he did

not spend much time with them in part because their mother did not want them to

visit him. Because the record does not show that Bryant developed significant and

meaningful ties to his family, we again cannot say that the district court clearly

erred in concluding that the need for deterrence and rehabilitation outweighed

Bryant’s interest in maintaining ties to his family.

      We reiterate that whether we would have imposed the same sentence is

irrelevant. Id. at 1991. The key question is whether the record in this case leaves

us with the “definite and firm conviction that the district court committed a clear

error of judgment in weighing the § 3553(a) factors.” Id. at 1190 (quotation marks

omitted). Because the answer to this question is no, Bryan’s sentence must be

                                           7
affirmed.

      AFFIRMED.




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