           Case: 18-13990   Date Filed: 04/24/2019   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13990
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:06-cr-00023-LSC-JHE-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

LATURUS MONTRAIL STONE,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (April 24, 2019)

Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit
Judges.

PER CURIAM:
              Case: 18-13990     Date Filed: 04/24/2019    Page: 2 of 6


      Laturus Stone was sentenced to a fourteen-month term of imprisonment

upon the revocation of his supervised release under 18 U.S.C. § 3583(e). He now

appeals, contending that the district court erred in varying upward from the

guidelines range.

                                          I.

      In 2006 Stone was sentenced to ten years imprisonment and five years of

supervised release for conspiracy to distribute cocaine base and distribution of

cocaine base. He began his supervised release in 2015. In November 2016 his

probation officer discovered that Stone had been charged in state court for

unlawful possession of a controlled substance and petitioned the district court to

revoke Stone’s supervised release. In December 2017 the district court revoked

Stone’s supervised release and sentenced him to three months imprisonment and

twelve months of supervised release.

      In February 2018 Stone was released from custody and began his second

term of supervised release. In August 2018 his probation officer again petitioned

the district court to revoke Stone’s supervised release, alleging multiple violations

of his supervised release including: leaving the Northern District of Alabama

without permission and failing to report after he was instructed to do so; submitting

urine samples that tested positive for amphetamine and methamphetamine; failing




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to participate in a mandatory drug education and counseling program; and failing

to report for drug testing on three occasions.

      At the revocation hearing, the district court noted that Stone’s guideline

range was four to ten months imprisonment but that the court could impose the

statutory maximum of five years. Stone claimed that he had not left the Northern

District of Alabama and had only told his probation officer he had because he was

“strung out on drugs,” but stipulated to the remaining violations. The government

then recommended seven months incarceration and three years supervised release

with inpatient drug treatment after release. The district court inquired about

Stone’s earlier state drug charge and expressed concern that Stone had violated the

terms of his supervised release twice and that he had positive drug screens. The

court sentenced Stone to fourteen months imprisonment and three years of

supervised release, with the condition that he complete a six-month inpatient drug

treatment program upon release. Stone objected to the court’s four-month variance

above the guidelines range. The court provided the following justification:

      Well to make it clear for the record, I believe that it was inappropriate
      to give him just the guideline because he had demonstrated through his
      various violations, some of which he got no — Judge Smith did not
      even have a hearing on him on one of his previous violations, I don’t
      think. And that was at the recommendation of the probation office. But
      he has been continuing to violate the terms and [conditions] of his
      supervised release since he got out. He will experience a different result
      this time when [he] gets out if he violates. I will see him as quickly as
      I possibly can and deal with him appropriately.


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      Stone now appeals, claiming that this justification was inadequate and that

the sentenced imposed was substantively unreasonable.

                                         II.

      We use a “two-step process” to evaluate the reasonableness of a sentence, first

looking “at whether the district court committed any significant procedural error”

and then at “whether the sentence is substantively unreasonable under the totality of

the circumstances.” United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014).

The only procedural error that Stone has alleged is that the district court failed to

give an adequate explanation for its upward variance in violation of 18 U.S.C.

§ 3553(c)(2).

      We review de novo a challenge to the adequacy of the district court’s

justifications pursuant to § 3553(c)(2). See United States v. Parks, 823 F.3d 990,

996 (11th Cir. 2016). A district court making “an upward variance must have a

justification compelling enough to support the degree of the variance and complete

enough to allow meaningful appellate review.” United States v. Early, 686 F.3d

1219, 1221 (11th Cir. 2012). “[A] major departure should be supported by a more

significant justification than a minor one.” Gall v. United States, 552 U.S. 38, 50,

128 S. Ct. 586, 597 (2007).

      Here the district court provided an adequate justification for the four-month

upward variance, which resulted in a sentence well below the five-year statutory


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maximum. The court was clear that the variance was imposed because of Stone’s

repeated drug use in violation of the terms of his supervised release and this

“compelling” justification is all that was required by § 3553(c)(2). Early, 686 F.3d

at 1221.

                                         III.

      Stone also contends that his sentence was substantively unreasonable. We

review the substantive reasonableness of a sentence for an abuse of discretion,

which means that we will sometimes “affirm the district court even though we

would have gone the other way had it been our call.” United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). In the

revocation context the “guidelines are merely advisory, and it is enough that there

is some indication the district court was aware of and considered them.” United

States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000) (per curiam).

      Normally a district court is required to consider certain § 3553(a) factors in

determining the defendant’s sentence upon revocation of his supervised release.

See 18 U.S.C. § 3583(e). “However, when revocation of supervised release is

mandatory under 18 U.S.C. § 3583(g), the statute does not require consideration of

the § 3553(a) factors.” United States v. Brown, 224 F.3d 1237, 1241 (11th Cir.

2000) (emphasis and quotation marks omitted), abrogated in part on other grounds

in Tapia v. United States, 564 U.S. 319, 131 S. Ct. 2382 (2011). The court is


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required to revoke supervised release and impose a term of imprisonment where

the defendant refuses to comply with drug testing imposed as a condition of

supervised release. See 18 U.S.C. § 3583(g)(3). At sentencing the district court

must still “set forth enough to satisfy the appellate court that [it] has considered the

parties’ arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct.

2456, 2468 (2007).

      Here the district court was statutorily required to revoke Stone’s supervised

release and impose prison time because he failed to appear for three drug tests.

And the sentence imposed was not substantively unreasonable because the court’s

justification that Stone had repeatedly violated the terms of his supervised release

by using controlled substances was sufficiently compelling to warrant its upward

variance. Even though the court was not required to consider the § 3553 factors, it

took into account some of those factors, including Stone’s history and

characteristics and the need for deterrence. See 18 U.S.C. § 3553(a)(1)–(2). So we

cannot say that the court abused its discretion in fashioning Stone’s sentence.

      AFFIRMED.




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