            Case: 13-14066    Date Filed: 09/26/2014   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14066
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:03-cr-00218-WTM-GRS-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

JAMAAL SINGLETON,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 26, 2014)

Before HULL, MARCUS, and HILL, Circuit Judges.

PER CURIAM:
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      Jamaal Singleton appeals his 60-month sentence, imposed after the district

court revoked his supervised release for two violations of the mandatory conditions

of his supervised release. On appeal, Singleton argues that his sentence is

procedurally unreasonable because the district court erred in believing that it was

not vested with the authority to determine whether his criminal history category of

VI overrepresented his criminal history. He also contends that based on changes in

the law since his original sentencing date, the district court should consider

whether his criminal history category overrepresents his criminal history, and

conclude that the criminal history category of VI was not appropriate. After

review, we affirm.

      We generally review a sentence imposed upon revocation of supervised

release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07

(11th Cir. 2006). When reviewing for reasonableness, we apply the abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 594,

169 L.Ed.2d 445 (2007). We do not review the merits of the district court’s refusal

to grant a downward departure, but review de novo an argument that the district

court erroneously believed it was without authority to depart. United States v.

Mignott, 184 F.3d 1288, 1290 (11th Cir. 1999). However, when the record does

not indicate otherwise, we presume that the district court understood it had such

authority. United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999).


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      Under 18 U.S.C. § 3583(e), a district court may, upon finding by a

preponderance of the evidence that a defendant has violated a condition of

supervised release, revoke a term of supervised release, after considering factors

set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7), and impose a

sentence of imprisonment for the violation. 18 U.S.C. § 3583(e)(3). Specifically,

sentencing courts must consider: (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the need for deterrence;

(3) the need to protect the public; (4) the need to provide the defendant with

educational or vocational training, medical care, or other correctional treatment;

(5) the kinds of sentences available and the applicable sentencing range; (6) any

pertinent policy statements of the Sentencing Commission; (7) the need to avoid

unwarranted sentencing disparities; and (8) the need to provide restitution to any

victims. See id.; 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7).

      In evaluating the reasonableness of a sentence, we first determine whether

the sentence is procedurally reasonable. Gall, 552 U.S. at 51, 128 S.Ct. at 597. A

sentence may be procedurally unreasonable if the sentencing court fails to consider

the factors set forth in § 3553(a), fails to properly calculate the appropriate

guidelines range, treats the Sentencing Guidelines as mandatory, or fails to

adequately explain the chosen sentence. Id. However, given the advisory nature

of the Guidelines, it is sufficient if there is some indication that “the district court


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was aware of and considered the Guidelines.” United States v. Campbell, 473 F.3d

1345, 1349 (11th Cir. 2007) (quotation omitted). Consequently, the district court

need not discuss or explicitly state on the record each § 3553(a) factor. United

States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

      At sentencing, “[i]f reliable information indicates that the defendant’s

criminal history category substantially over-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit other

crimes, a downward departure may be warranted.” U.S.S.G. § 4A1.3(b)(1). For

purposes of revocation of supervised release, the policy statements in Chapter 7 of

the Sentencing Guidelines provide that, in setting the term of imprisonment

following revocation of supervised release, the criminal history category to be used

in determining the applicable guideline range is the category determined at the

time the defendant was originally sentenced to the term of supervision. Id.

§ 7B1.4, comment. (n.1). The criminal history category is not to be recalculated.

Id. Moreover, a departure may be warranted if the court departed from the

applicable guideline range pursuant to § 4A1.3 in imposing the underlying

sentence. Id. § 7B1.4, comment. (n.2). We have held that while the district court

must consider the Chapter 7 policy statements, they are only advisory. United

States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).




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      We have also held that a defendant may not challenge the validity of his

underlying sentence during revocation proceedings. United States v. Almand, 992

F.2d 316, 317 (11th Cir. 1993). In Almand, the defendant argued that he could not

be sentenced following revocation of supervised release because his sentence of

supervised release for his original crime was invalid, as he was not present at the

time it was imposed. Id. We held that arguments against the underlying

sentence’s validity may be raised by collateral attack only through a separate

proceeding. Id. Therefore, unless the underlying sentence has been vacated, the

district court should presume it is valid during the revocation proceeding. Id.

      Singleton’s 60-month sentence was procedurally reasonable. To the extent

Singleton argues that the district court erred in refusing to grant him a downward

departure based on his criminal history category, we lack jurisdiction to review that

argument. See Mignott, 184 F.3d at 1290. To the extent Singleton argues that the

district court mistakenly believed it did not have the authority to depart, we may

review that argument. See id. The district court, however, correctly applied the

Guidelines in concluding that for purposes of the revocation of Singleton’s

supervised release, the criminal history category to be used in determining the

applicable guideline range was the criminal history category used during the

original sentencing hearing. See U.S.S.G. § 7B1.4 comment. (n.1); cf. Almand,

992 F.2d at 317. The policy statements also provide that the criminal history


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category should not be recalculated. U.S.S.G. § 7B1.4, comment. (n.1).

Moreover, although the Guidelines provide that a departure may be warranted if

the sentencing court departed under § 4A1.3 at the original sentencing hearing, no

such departure occurred here. See id. § 7B1.4, comment. (n.2). Thus, the district

court calculated the appropriate guideline range. See Gall, 552 U.S. at 51, 128

S.Ct. at 597.

      Furthermore, there is no indication that the district court treated the

Guidelines as mandatory or that it did not understand that it could vary from the

advisory guideline range. See id. While the district court did not specifically cite

to the § 3553(a) factors, it stated that it was imposing the 60-month sentence

because Singleton: (1) violated supervised release after only 13 months;

(2) showed that he could not abide by the law; and (3) was a danger to the

community. Thus, the record shows that the district court considered the § 3553(a)

factors. See Campbell, 473 F.3d at 1349; Scott, 426 F.3d at 1329. Because

Singleton cannot show that the district court procedurally erred, we affirm.

      AFFIRMED.




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