                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0054n.06

                                           No. 10-4564
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS                             Jan 13, 2012
                               FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    SOUTHERN DISTRICT OF OHIO
ANTOINNE DONNELL BURRELL,                        )
                                                 )
       Defendant-Appellant.                      )



       Before: COOK, WHITE, and DONALD, Circuit Judges.


       PER CURIAM. Antoinne Burrell appeals the district court’s sentencing judgment following

his second revocation of supervised release. Burrell first argues that the district court committed

plain error by imposing a post-revocation sentence greater than the statutory maximum, and

alternatively challenges the substantive reasonableness of his seventeen-month sentence, which

exceeded the advisory guidelines range by six months. Finding no error or abuse of discretion and

deeming argument unnecessary, Fed. R. App. P. 34(a), we affirm.


       We review Burrell’s statutory-maximum argument for plain error, because Burrell did not

object to the probation office’s recommended seventeen-month sentence, and his attorney agreed that

the term did not exceed the statutory maximum. See United States v. Craft, 495 F.3d 259, 265 (6th

Cir. 2007). Without citing the relevant statutory language or cases applying current post-revocation
No. 10-4564
United States v. Burrell


sentencing provisions, Burrell argues that his previous post-revocation sentence—seven months’

imprisonment and twelve months’ supervised release—set the outer boundaries for his second

revocation proceedings. This position contravenes the current version of the statute governing post-

revocation sentencing, 18 U.S.C. § 3583(e)(3), and its focus on the supervised-release term

authorized by the underlying conviction. As it did at the time Burrell committed his original offense

in 2007, § 3583(e)(3) specifically authorizes the district court to “revoke a term of supervised

release” and “require the defendant to serve in prison all or part of the term of supervised release

authorized by statute for the offense that resulted in such term of supervised release without credit

for time previously served on postrelease supervision,” but limits to two years the post-revocation

imprisonment for class C and D felonies. 18 U.S.C. § 3583(e)(3) (emphasis added); see also United

States v. Palmer, 380 F.3d 395, 398 (8th Cir. 2004) (en banc) (concluding that the above-italicized

language added by a 1994 amendment changed the boundaries of post-revocation sentencing from

the original term of supervised release to the term authorized by the statute for the offense of

conviction). Because Burrell’s underlying conviction—possession with the intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1)—authorized a supervised release period of not less

than two years, see 21 U.S.C. § 841(b)(1)(D), and qualified as a Class D felony, see 18 U.S.C.

§ 3559(a)(4), the district court had the post-revocation discretion to sentence Burrell to up to two

years of imprisonment, 18 U.S.C. § 3583(e)(3). Because he received less than the statutory

maximum, Burrell has not shown error, let alone plain error.


       We review Burrell’s substantive reasonableness challenge for abuse of discretion, “tak[ing]

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No. 10-4564
United States v. Burrell


into account the totality of the circumstances, including the extent of any variance from the

Guidelines range.” United States v. Polihonki, 543 F.3d 318, 322 (6th Cir. 2008) (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). “A sentence is substantively unreasonable if the district

court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider

relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”

United States v. Camiscione, 591 F.3d 823, 832 (6th Cir. 2010) (internal quotation marks and

citation omitted). No presumption of reasonableness applies to a non-guidelines sentence, and the

district court must provide a “sufficiently compelling [justification] to support the degree of the

variance” it chooses. United States v. Tristan-Madrigal, 601 F.3d 629, 633 (6th Cir. 2010) (quoting

Gall, 552 U.S. at 50). Burrell argues that the district court failed to justify the six-month variance,

but the sentencing transcript reveals otherwise. The district court carefully examined Burrell’s

numerous violations of supervised release since the prior revocation of supervised release, including

his failed drug tests, his failure to attend drug treatment sessions, and his failure to check into a re-

entry facility. These facts persuaded the district court that “Mr. Burrell has no desire or motivation

to take advantage of the numerous resources that were made available to him, and he’s absconded

from supervision.” (Notably, defense counsel also recommended an upward variance in asking for

a twelve-month sentence.) We deem this justification sufficient for the six-month variance imposed

by the district court. See Polihonki, 543 F.3d at 325–26 (rejecting substantive reasonableness

challenge to higher sentence imposed following second revocation of supervised release). Burrell

does not otherwise challenge the substantive reasonableness of his second post-revocation sentence,


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United States v. Burrell


and we therefore AFFIRM.




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