                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-15314                    JULY 12, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                       D. C. Docket No. 05-00005-CR-6

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                     versus

RAY LACOUNT ALLEN, JR.,

                                                         Defendant-Appellant.


                         ________________________

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

                                (July 12, 2006)

Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Ray Lacount Allen, Jr., appeals his 30 month sentence for violating a
condition of supervised release from his original conviction for bank robbery,

namely refraining from the use of controlled substances. On appeal, Allen argues

that the district court erred when it imposed a 30 month sentence, nearly three

times the upper limit of the United States Sentencing Guidelines (U.S.S.G.)

Chapter Seven advisory range. Allen also argues that the district court erred in

revoking his term of 30 months of supervised release because the district court did

not comply with 18 U.S.C. § 3583(d) to consider the availability of appropriate

substance abuse programs.

        Where the defendant did not raise an objection to his sentence following

revocation of supervised release in the district court, we review for plain error.

United States v. White, 416 F.3d 1313, 1317 (11th Cir. 2005). “An appellate court

may not correct an error the defendant failed to raise in the district court unless

there is: (1) error, (2) that is plain, and (3) that affects substantial rights. If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 1317. We discuss the issues in

turn.

                                             I.

        Where a defendant has violated conditions of supervision, the district court



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may revoke the term of supervised release and impose a term of imprisonment

after considering various factors. 18 U.S.C. § 3583(e)(3). The statutory maximum

of the sentence imposed for revocation of supervised release is determined by the

class of the original offense. Id. In this case, Allen’s original offense of bank

robbery was a Class B felony punishable by twenty-five years or more. 18 U.S.C.

§ 3559(a)(2). Therefore, the statutory maximum sentence for the violation of a

condition of supervision is no more than three years imprisonment. 18 U.S.C.

§ 3583(e)(3).

      Chapter Seven of the United States Sentencing Guidelines contains policy

statements for courts to consider in determining a sentence for violation of

supervised release. U.S.S.G. ch. 7 pt. A(1) (2004); see White, 416 F.3d at 1318.

The recommended range under Chapter Seven is based on the classification of the

conduct that resulted in the revocation and the criminal history category applicable

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

U.S.S.G. §§ 7B1.1, 7B1.4. Chapter Seven provides for a five to eleven month

term of imprisonment when a defendant’s supervised release is revoked for

committing a Grade C violation and the defendant has a criminal history category

of III. U.S.S.G. §§ 7B1.1(a)(3), 7B1.4(a). Grade C violations include conduct

constituting (A) a federal, state, or local offense punishable by a term of



                                           3
imprisonment of one year or less; or (B) a violation of any other condition of

supervision. U.S.S.G. § 7B1.1(a)(3).

       Further, the sentencing court “shall state in open court the reasons for its

imposition of a particular sentence, and if the sentence . . . is not of the kind, or is

outside the range, described in [§ 3553(a)(4)], the specific reason for imposition of

a sentence different from that described.” 18 U.S.C. § 3553(c)(2).

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

however, we upheld the district court's decision to exceed the Chapter Seven

guideline range where the district court explicitly mentioned those guidelines and

decided the sentence they recommended was inadequate under the circumstances.

       The district court did not plainly err by sentencing Allen outside the

recommended range. First, the sentence was permissible and did not exceed the

statutory maximum of three years or 36 months. See 18 U.S.C. § 3583(e)(3).

Second, the district court explicitly mentioned the Chapter Seven recommended

range, but decided that any sentence within the range would be inadequate under

the circumstances. See 18 U.S.C. § 3553(c)(2). Ultimately, the district court

rejected the advisory range because it found that Allen had been given enough

opportunities to reform himself, but that he chose to manipulate the system and

continue to use illegal drugs. Accordingly, we affirm in this respect.



                                            4
                                          II.

      As noted above, upon finding that a defendant violated conditions of

supervised release, the district court may revoke the term of supervised release and

impose a term of imprisonment after considering various factors set out in 18

U.S.C. § 3553(a). 18 U.S.C. § 3583(e). Relevant factors for determining the

length of imprisonment upon revocation include: (i) the nature and circumstances

of the offense and the history and characteristics of the defendant (§ 3553(a)(1));

(ii) the need to afford adequate deterrence to criminal conduct (§ 3553(a)(2)(B));

(iii) the need to protect the public from further crimes of the defendant

(§ 3553(a)(2)(C)); (iv) the need to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment in the most

effective manner (§ 3553(a)(2)(D)); (v) the kinds of sentence and the sentencing

range established (§ 3553(a)(4)); (vi) any pertinent policy statement issued by the

Sentencing Commission (§ 3553(a)(5)); (vii) the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct (§ 3553(a)(6); and (viii) the need to provide restitution to

any victims of the offense (§ 3553(a)(7)). 18 U.S.C. § 3553(a). Under § 3583(g),

however, the district court must revoke the term of supervision where the

defendant, among other things, possesses a controlled substance in violation of a



                                           5
condition. 18 U.S.C. § 3583(g).

      The district court did not plainly err when it refused Allen’s request for

placement at a drug treatment facility or a federal prison with a residential drug

abuse program. The district court was authorized, under § 3583(e)(3), to exercise

its discretion upon consideration of certain factors to revoke Allen’s term of

supervised release because Allen admitted to having violated condition seven of

his supervision by using a controlled substance. Further, the record does not show

and Allen does not present any evidence to support his argument that the district

court was under the false impression that it was required to revoke his term of

supervised release under § 3583(g).

      In addition, the district court properly considered the appropriate § 3553(a)

factors. For example, the district court heard testimony regarding an available drug

treatment facility and the court acknowledged Allen’s request for placement in a

drug treatment program. The court also considered Allen’s repeated use of

controlled substances, in December 2004 and May 2005, and the fact that he had

received a specific and stern warning regarding the district court’s zero drug

tolerance policy. Furthermore, the district court considered the substantial

reduction in sentence Allen received at the time of his original sentencing for the

purpose of showing that the government and the federal court had already been



                                           6
lenient with him and given him an opportunity to reform himself. Finally, the

district court concluded that the policies of affording adequate deterrence to

criminal conduct and protecting the public from further crimes of the defendant

warranted incarcerating Allen. Accordingly, we affirm in this respect.

AFFIRMED.




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